Child custody is a legal term concerning guardianship which describes the legal and practical relationship between a parent / guardian and a child in that person's care, child custody consists of legal custody, the right of which is to make decisions about the child, and physical custody, which is the right and duty to provide house, shelter, care and welfare of the child.
A person who has custody of a minor is responsible to look after the minor with regards to its health, education and support him/her in all respects. In every matter related to a minor, the court will give preference to child's welfare and interest over that of parents' rights.
In law, a minor is a person under the age of majority, who is dependent upon some adult to safeguard in regard to their person and property, whereas a guardian is a person who is legally responsible to take care of a minor because he has been granted custody to take care of the minor by an authorized court.
Child Custody Laws in Pakistan
The Guardianship/ child custody laws in Pakistan are defined in The Guardians and Wards Act 1890, a pre partition legislation, which is still adopted with amendments made from time to time. The Act established the Guardian and Wards department in each province, which handled matters related to minors and guardians. Child custody in Pakistan refers to the parents right, to raise and care for, covers the responsibility to take decisions regarding the child. The main responsibility of parent is to take all decisions. Which includes the child’s basic needs of health, education, religious upbringing and welfare.
Child custody arises as a burning issue after every divorce in Pakistan, which makes both parents know about child custody laws. Each parent seeks every kind of legal provision to gain custody of their child even though being a single parent is tough.
Guardians & Wards Act, 1890
Sec. 17 and 25 Interpretation of Sec. 17 and 25 of Guardians & Wards Act, 1890 Terms “Hizanat” and “Willayat” Scope
Sec. 17 and 25 of the Guardians and Wards Act, 1890, encircle the rights regarding custody of minors by their parents which rights are usually termed as “Hizanat” and “Willayat”. The word “Hizanat” or “Hidanat” (as pronounced by the Asians and the Arabs respectively) is used for custody of minors by mother and the term “Willayat” is used for custody of minors by father. Word “Hizanat” in its literal sense means “upbringing”. Therefore, it covers the concept of “Wallayat” too. It is also important to point out that in legal terminology the word “Hizanat” or “Willayat” cannot be limited to the extent of mother or father of minors because the duty of upbringing can be performed by any person who has legal right to do so such as maternal or paternal aunts or grandmother. On account of this reason most of the text-books particularly written in Arabic titled the relevant chapter with the word “Al Hizanat”
Role of Guardian Courts
The Guardian and Wards department manages all matters related to minors in the country, including Guardianship / Child Custody hearings. If you are thinking about getting divorced or separated from your spouse, you must file a divorce petition through your local district court. If there are children involved in the marriage, you will likely need to go through a Guardianship / Child Custody hearing at some point during or after your divorce proceedings.
The judge presiding over your case will determine who should have primary care over the children by taking into consideration their best interests as well as:
Who can provide financial support for the children?
The living situation of each parent (where do they live?)
Who has taken care of the kids since birth (the “primary caregiver”)
Being given primary care does not mean that you are granted physical custody; it means that you will be responsible for making major decisions about your kids’ lives, such as where they go to school and what religion they practice going forward, in addition to financial support. Most judges also take into account who is better equipped emotionally to handle these major responsibilities when deciding on primary caretakers for children.
Minor’s Welfare is the Key Factor
Child welfare is the key factor taken into consideration by the court while granting custodial rights to any parent. Thus, aspects such as financial stability of parent, reported misconduct, character, and capacity of parent are given importance.
The courts grant physical rights to one parent, however increased number of cases have seen shared legal responsibility and guardianship of any child(ren). Thus, custodial laws in Pakistan can also be classified as physical and legal. According to the judicial system established in Pakistan, the legal right over minors implies that the parent is solely responsible for the welfare of the juvenile in question.
While dealing with such issues, the court considers the preference of the minor in question, if he/she is old enough to form an intelligent preference.
Legal Age of Child Custody After Divorce
In Pakistani Laws the custody of a minor is given to the mother, this right is called the right of hizanat. But after the age of seven years, the mother’s right over the son ends however it is not an absolute right; it is made in the interest of the boy. Girls are given to mothers until they attain puberty. One important aspect of this law is that the conduct of the mother is of great importance, and if that is found ‘objectionable’, she may not be given custody rights. The father has the right to custody after the mother’s term ends by the court of law. In case of the absence of both parents, the grandparents are offered custody of the child.
Child Custody and Visitation Rights after Divorce
The dispute of child custody or guardianship in Pakistan, starts on non-legal marriage separation of husband and wife. But after divorce or khula, all of these issues may become practical. Right of child custody turns into a very serious issue. To settle the issue, the child custody laws of Pakistan and the Guardian Court gets involved. Neither of the parents want to leave his child due to love and affection.
One of the major disputes during child custody in Pakistan is visitation of rights. Traditionally, after a divorce or khula husband and wife become worst enemies of each other. Either husband or wife, the custodian, does not allow the right to visit to the other. Right to visit the minor are only granted to the non-custodial parent. Therefore, it is bounden duty of Guardian Court of Pakistan to grant the right to visit and maintain equilibrium between father and mother.
How ZA-LLP may help?
In child’s custody / guardianship cases, always hire a qualified child custody lawyer. We at ZA-LLP have a team of dedicated child custody lawyers, who can give you best advice regarding child custody / guardianship and visitation rights because it is important to note that irrespective of the customs or personal laws, any parent who wants custody of a child but cannot reach a settlement, has to seek custody separately from the Court. There is never any automatic transfer of a child’s custody to a particular parent after reaching a specific age such as there are some gossips, we oftentimes listen that the custody of a Son transfers to the father when a “Boy” reaches the age of seven years, it is false.
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