• Regarding Child custody question post divorce is issued

Hi All ,

I am mother of 6 year old twins and in Nov 2022 I was granted divorce in India based on grounds of cruelty and desertion by respondent under section 13(i) (ia) and (ib) of Hindu Marriage Act 1955. Case was decided in my favour because respondent did not show up and it was exparte. Now my question is I have stamping appointment to USA and there is a possibility for them to ask me regarding child custody since I am applying dependants visa for my kids as well. In the divorce document this was not written anywhere explicitly that custody is given or remains with mother. However it is mentioned as kids are staying with mother and respondent is not paying any money and everything is taken care by mother. So if i am asked this question I would like to know what is the best way for me to support my side to get visas or if anything else is needed before i go for stamping and its best to reschedule my appointment . Kindly help
Asked 2 years ago in Family Law
Religion: Hindu

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7 Answers

Divorce decree should explicitly mention that mother woukd have sole custody of child 

 

2) since your divorce decree does not mention si embassy would insist you obtain husband consent for taking child abroad 

Ajay Sethi
Advocate, Mumbai
99784 Answers
8145 Consultations

You should have to file application under section 26 of HMAct to claim custody and maintenance etc for children. As per law father is the natural guardian of child over and above 6 years so either you have to file application under 26 of HM Act to get appointed as guardian of children or to file a petition under section  7 of guardianship and wards Act to get appointed guardian of children. In form you can mention as divorcee and to be guardian of children but it would be matter to take chance. 

Siddharth Srivastava
Advocate, Delhi
1551 Answers

Legally you should also file custody case in the above matter. You can only say that you are solely taking care of the child but when custody is not with you you will require fathers consent too

Prashant Nayak
Advocate, Mumbai
34520 Answers
249 Consultations

It is very important to get an order from court giving full rights to you over your children by granting an order for full custody of children to you.

For this you have to file a petition under guardians and wards act afresh.

The divorce decree is only for dissolution of your marriage.

The court should pass a decree and judgment giving you sole custody of your children which will be the only valid document for you to take your minor children abroad along with you that too without the consent of their biological father.

T Kalaiselvan
Advocate, Vellore
89986 Answers
2493 Consultations

You may need to provide some evidence of your child custody status when you apply for a dependent visa for your children. This may include:

  • A copy of your divorce decree that shows the grounds for divorce and the custody arrangement, if any. You may also need to get it translated into English and authenticated by a competent authority
  • A letter from your ex-spouse that gives consent for you to take the children to the USA, or a court order that grants you sole custody or permission to travel with the children
  • A copy of your children’s birth certificates that show your name as their mother

These documents may help you prove that you have the legal right and authority to take your children to the USA and that you are not violating any laws or court orders in India. However, the final decision on whether to grant you and your children visas depends on the discretion of the consular officer who interviews you. Therefore, you should be prepared to answer any questions they may have about your situation and your plans in the USA. You should also bring any other documents that support your visa application, such as proof of income, assets, ties to India, and invitation letter from your sponsor in the USA

 

Muraleedharan R
Advocate, Trivandrum
386 Answers
2 Consultations

- As per law , being the natural guardian of the twins , the respondent is also having right over them for visitation and custody. 

- Hence, you can file a petition before the court for getting full custody of the children , and if he will not appeared then the court may pass an ex-parte decree in your favour. 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

Dear Client
Consult with a Family Law Attorney in India: It's crucial to consult with a family law attorney in India who can review your divorce decree and advise you on the specifics of your case. They can help you understand whether the divorce decree implies custody with you or if you need to take additional legal steps to clarify custody.

Amend the Divorce Decree: If your divorce decree does not explicitly mention child custody, you may need to consider amending it to include custody arrangements. Your attorney can help you file a petition in court to seek clarification or modification of the decree to specify custody arrangements.

Obtain a Custody Order: If the court determines that it's in the best interest of the children to remain with you, you can obtain a separate custody order from the court. This order should clearly state that you have legal custody of your children. This may strengthen your case during the visa interview.

Gather Supporting Documents: Collect any evidence that demonstrates your role as the primary caregiver and responsible parent for your children. This might include school records, medical records, affidavits from family and friends, and financial documents showing that you are supporting them.

Consult an Immigration Attorney in the USA: Before attending your visa stamping appointment, it's advisable to consult with an immigration attorney in the USA. They can provide guidance on how to present your case during the visa interview and address any concerns the consular officer may have regarding child custody.

Be Prepared for Questions: During your visa interview, be prepared to answer questions related to your children's custody. Explain your role as the primary caregiver and provide any supporting documents if requested.

Consider Rescheduling: If you are unable to gather the necessary documentation or legal clarification regarding child custody before your visa appointment, you may consider rescheduling it until you have everything in order to present a stronger case.

Please note that visa application processes can be complex, and the requirements may change over time. Consulting with both an Indian family law attorney and a US immigration attorney will provide you with the best guidance tailored to your specific circumstances.

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

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