In 2013, my ex-husband filed for child custody and was denied, though he was granted visiting rights, which he never utilized. He also never paid child maintenance after being ex-partee. After 12 years, I remarried and sought to relocate with my child abroad. Due to my ex-husband's refusal to consent for the visa application, we filed an interim application under the same case to obtain court permission for relocation. The trial was completed, and the court set an order date. However, the order has been delayed because my ex-husband filed a new custody case, citing a change in circumstances due to my remarriage and referencing Muslim personal law. My ex-husband's brother, a lawyer, is employing delaying tactics, such as sending money orders for child support, which he had not done before the previous custody filing. What legal remedies are available to dismiss the new proceedings, considering that an order is already pending from the initial case?
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The new case filed by your ex-husband has nothing to do with the existing case which is posted for orders.
The court will not take notice of the new case until your ex-husband is not filing any petition to set aside the exparte orders passed against him in that case.
In the fresh case, you can challenge the same on merits especially if the orders of the current case is in your favor then it will be beneficial to you to challenge the new case properly based on the orders in your favor
Remarriage should not affect your child custody
husband has never visited child nor paid child maintenance
you should be granted permission to take child abroad
You can give various reasons to court regarding child's welfare and future educational, financial and career growth.
Here you could have mentioned educational visa for your child instead of relocation and you could have taken child to where you want to relocate.
Plus now you can demand foreign education fees for your child from your ex-husband in advance and ask him to deposit money in the court.
Dear Client,
In the Present Scenario, in 2013, your ex-husband filed for child custody but was denied with the same, though being granted visiting rights. However, the same was never utilized by him, and further, he also did not pay any maintenance amount. After 12 years, you remarried, and wished to relocate with your child abroad. But, your ex-husband had refused to consent for the same, and subsequently you filed an interim application for relocation, Though the trial was completed, and an order date was set, it was delayed due to a new custody case filed by your ex-husband, by citing the change due to your remarriage, and applicability of Muslim Personal Law. Your ex-husband's brother is also a lawyer, and he has been sending money orders for the child, which was not done previously, and hence, you wish to enquire about the legal remedies available for the dismissal of the new proceedings, and consider the order of the previous case. Herein, since there exists an order from the previous case on custody, this can act as a basis to dismiss the new custody case under the Civil Procedure Code. You may also request for an interim relief seeking to permit for relocation while the case is being adjudicated. For the same, you may also present evidences such as non-utilization of visiting rights, non-payment of maintenance amount for your child, etc., claiming inactive involvement or interest by your ex-husband on your child.
Hope you find this answer beneficial for resolving the dispute.
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Thank you to all the advocates who provided helpful advice on my previous query. I truly appreciate your time and insights. As a follow-up, I’d like to clarify that the court had already heard both sides and concluded the hearing on my application for permission to relocate abroad with my child. The judgment was about to be issued, but the court put it on hold due to a newly filed custody case by my ex-husband. This new case is expected to take at least a year to resolve. Given that the relocation matter has already been fully heard, is there any way I can request the court to release the judgment without waiting for the new custody case to be completed? Can I apply for interim relief or argue that the new case should not delay the decision already pending? Any advice on possible legal remedies to expedite the release of the order would be greatly appreciated.
all remedies and reason I have provided to you.
Since arguments have been completed court can pass orders on your application to take child abroad
custody application is basically dilatory tactics adopted by your ex husband
I presume that the new child custody case may not be a new one but he might have filed a petition to set aside the exparte order passed against him in the case filed by you and he has file an IA, if that is the case then the court may not be able to pass a judgment in the current case without disposing his application to set aside the exparte order and hearing his side arguments.
However, if my presumption is incorrect and if it is actually a new child custody case filed by him then the court has no reason to hold the decision in the case which is reserved for orders. in that case if the delay to pass orders is inordinate then you can file an application before high court seeking direction to the trial court to dispose the matter expeditiously
- Since, in 2013 the custody of the child was denied to your husband , and further he not availed the visitation right during the period of 12 years and even not paid the maintenance to him , then you can file an application to dismiss his new petition on the principle of res judicata, which prevents re-litigation of issues that have already been decided in a prior case.
- Further, under the Guardian and Ward Act, , the welfare of the child as the paramount importance, like ethical upbringing of the child, Safe-keeping of the child, Good education , and economic well-being of the guardian.
- Hence, you can submit before the Court that after a long period he has filed the said case only to delay the proceedings,
