Author: Avishi Srivastava, DES Shri Navalmal Firodia Law College

Child custody involves the legal determination of who has the right to look after the child and take the decisions regarding the upbringing of the child. Child custody is the legal custody which is required to make the decisions in consideration of the child's well being and physical custody which is the right to duty of house and provide care to the child. Decisions related to child custody mainly arise at the time of divorce, annulment, adoption, legal separation or in the case of the death of the parents. Child custody is an emotional and legal issue .Both the parents fight in order to win the custody of the child however It becomes challenging to handle a child’s best interest post divorce. This is the reason why the bare acts in India ensure that both the parents have certain rights on the child.

Parental alienation refers to the act where a child is separated from one of his parents due to the manipulation of the other parent.This might cause or result in forming hatred in the mind of the child for the distant parent.parental alienation is mainly caused during divorce , legal separation.The theory of parental alienation has been asserted within legal proceedings as a basis for awarding custody to a parent who alleges estrangement, or to modify custody in favor of that parent. Courts have generally rejected parental alienation as a valid scientific theory, but some courts have allowed the concept to be argued as relevant to the determination of the child's best interests when making a custody determination.

Methodology which is used in this is non empirical research as it is primarily recorded and easy to access rather than empirical research which involves surveys and most people are not ready to reveal such happenings.

Main findings show that in most child custody cases a joint custody is provided to both the parents in India. In the case of divorce specific laws such as the Hindu Marriage Act, Hindu Minority and Guardianship Act, Hizanat, and the Indian Divorce Act. Parental alienation has not been specifically defined but it is rather visible in the cases of divorce adoption legal separation and parental death.

The concluding part suggest  child custody cases involve a thorough evaluation of many factors to determine what’s best for the child. The child’s age, needs, well-being, stability, parent-child relationship, co-parenting ability, sibling bonds, and the child’s own preferences are all considered. Courts aim to create custody plans that prioritize the child’s welfare and encourage their healthy growth. By focusing on the child’s best interests and promoting cooperation, parents can navigate the challenges of custody cases and work towards a resolution that benefits their child’s well-being

Keywords: Joint Physical Custody, Legal Custody, Third Party Custody, Sole Custody, Divorce, Legal Separation, Parental Death

The term child custody undermines that the parent is bestowed with the right to take care of the children. The person who has the right over the child also has the right to take decision in the best interests of the child. Generally both parents have joint custody of the child but in case of separation or divorce one parent gets the custody of the child. This does not mean that the other parent does not have any right it only means that the parent having the custody has more decision making power than the other parent. The parent or person with the custody is known as the legal custodian .This person is recognized by the court to take care of the minor child. In India, child custody is determined in each case differently ,there is no uniformity in how the courts determine whether a parent deserves the custody or not.

Parental alienation is a theorized process through which a child becomes alienated from one parent as the result of the  thorough psychological manipulation of another parent. The child's estrangement may manifest itself as fear, disrespect or hostility toward the distant parent, and may extend to additional relatives or parties. The situation most often arises during a divorce or custody battle but it can happen in intact families as well.

Parental alienation can be classified by its severity, from mild to severe. Treatment will depend on the symptoms and severity.

1. Mild

Mild parental alienation is marked by a child who is resistant to visiting with the alienated parent but enjoys spending time with their parent once they are alone together. 

2. Moderate

A child with moderate parental alienation will resist any contact or relation with them .They just don’t want to be around them even in their presence. 

3. Severe

In cases of severe parental alienation, the child may not only strongly resist any contact with the alienated parent but may also run away or hide to avoid having to visit with them. 

Physical Custody

The issue of physical custody relates to the physical place where the child lives on a day-to-day basis. It can be decided that a parent is given either sole physical custody or joint physical custody.

Sole physical custody means that the child will live on a day-to-day basis with that parent. This parent is known as the ‘custodial parent’ but this does not necessarily mean that the other parent will not be able to visit or spend any time with their child. Unless there is a specific reason not to, the other parent will be allowed to spend time with their child. Sole physical custody is becoming more and more common in the UK due to the fact that the Court is looking to reduce disruption to a child’s life and this is often achieved by granting sole physical custody.

Joint physical custody means that the child spends equal amounts of time between both parents. Although this may seem to be the fairest solution, it involves the child moving between two different homes, which can be disruptive for them. This option can be more disruptive for the child and is often, therefore not judged to be the best one. If one parent has sole physical custody of the child, this does not mean that the other parent is necessarily not involved in the bringing up of and important decisions relating to the child, however.

Legal Custody

The term ‘legal custody’ refers to the bringing up of a child. This means making decisions relating to important aspects of the child’s life such as medical responsibility, schooling, and religious upbringing. This is different from that of a physical custody as it involves both the parents for making decisions even if they do not reside together. 

Sole legal custody refers to that type of custody where all the decisions are taken by a single parent along with raising the child.

Joint legal custody refers to that type of custody where both the parents have equal right to make decisions relating to the child. If you have been granted joint legal custody of your child, you must ensure that decisions are made together. If this is not done, your ex-partner has the right to take you to court to resolve the problem, often causing friction between you both, making further decisions more difficult, and often being disruptive for the child.

Full Custody

Full custody is granted when a parent gets both sole physical as well as the legal custody of a child. It mostly takes place in the following circumstances:

• If the court deems the other parent to be unfit to raise the child,

• If the other parent has a history of abuse or neglect,

• If the other parent is in jail or has a criminal record,

• If the other parent struggles to raise the child due to medical reasons.

It is important to remember that the Court would rather have both parents involved in bringing up the child and full custody should only be sought by a parent if they truly believe that it would be in the best interest of the child.

Joint Custody

Joint custody consists of  joint physical custody, joint legal custody , or joint physical and legal custody. In the case of joint physical and legal custody are types of custody that involve both the parents to spend equal time with the child and take decisions together. If parents cannot come to an agreement, the Court will impose a decision on them which is in in the best interest of the child

The problem in the research shows the following challenges

1. Best Interest of the Child

The courts make decisions on the basis of the best interest of the child but however we are not sure how consistently the said principle is applied.

2. Impact of Custody In Child Development

It raises the question of which custody arrangement best suits the child.The long term developmental outcomes for children in different custody arrangements.

3. Parental alienation

The accusation of parental alienation is raised.the empirical evidence that supports the implication of parental alienation and how it impacts the courts decisions.

4. Custody Disputes Involving Domestic Violence

 Courts sometimes fail to adequately account for past or ongoing abuse when determining custody.

The purpose and objective of this research is :

• To understand the various types of custody

• To critically analyze acts related to child custody

• To understand the basics of parental alternation

My statement is that though we have relevant laws the law needs to be updated and figures or census should be clear .The courts in India should focus upon the background of the respective partners to whom the custody is granted.

The significance of this study is to highlight upon child custody one of the crucial concepts of the Indian legal system . Child custody is the strategy of handing over the responsibility of a child to a single parent , both the parents or legal guardians in case of death of the parents.

Hindu Minority and the Guardianship Act,1956

In a Joint Hindu Family the Karta was responsible for the management  and control of their property and ultimately the rules relating to custody of a child were not thought to be necessary .However HMGA provides that the father is the natural guardian and it is the mother after the father under Section 6(a)of HMGA

1) In case of a minor boy or unmarried minor girl, the natural guardian is the father, and after‘ him, the mother; and

2) the custody of a minor who has not completed the age of five years shall ordinarily‘ be with the mother.

Hindu Marriage Act 1955

Section 26- In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made:

Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

Islamic Laws

In the Islamic laws the father is the natural guardian but the custody rests in the hands of the mother until the son is of seven years of age and the daughter reaches puberty. The concept of Hizanat(custody) states that the mother is more suitable to handle the custody  of the child both during the marriage and upon the dissolution of marriage.

Parsi and Christian Law

The Indian Divorce Act ,1869 provides for power to make orders as to the custody of children in suit for separation.

The research design used is observational as the statistical records are not available digitally.

The data collected by the researcher shows that not only the best interest of the child but also the following things are required in order to win the custody of the child:

Financial Statement-Determines financial stability of the parent.

Residence proof- Determines a secure living environment for the child

Employment Proof-Determines that the parent is employed and can provide for the child.

School Records- Determine your participation in the education and co curricular growth of the child.

Medical Records-Determine whether the parent and the child any medical condition

From these records we can analyze that a custodian needs to be capable of looking after the child in every possible way.

It is very clear that the courts are emphasizing on the weight age on the child’s welfare, are going into the question of what the best interest of the

child is and as per the findings of the researcher  there is a vague interpretation of the principle. The courts mainly undermine the love, care , affection, financial support, and education which is very subjective on the part of the courts .In most divorce cases the children are given less emphasis than that of the parents. The principle of best interest is nothing but the merging of the maternal and paternal preferences. In international cases the courts first address the custody of the child in cases of the divorce apart from that the financial needs , property etc. are also considered.

 Hence my hypothesis is proved the courts usually don’t observe the background of the families at times .In most cases the child is neglected at the time of the separation of parents .The court takes decision on the basis of the interest of the child and also check for the stability of the legal custodian of the child.In most cases the child is completely alienated from the other parent .

The limitation in this study was that there are no graphs provided on online platforms to show the figures due to which it was tough to determine the percentage of women winning the custody of child over men or the percentage of men winning the custody of the child over women. The percentage of parental alienation was not shown either.

This research paper on child custody and parental alienation concludes on the note that child custody is a legal concept dealing with the custody of the child.In most cases mothers are given the custody.the father is natural guardian of the child while the mother is the second natural guardian of the child.In India majority of the custody cases are joint however there are rising cases leading to the other forms of custody granted by the courts.This however leads to parental alienation which is a more psychological concept as this affect the growth of the child they might never experience the love and care of the other parent.

My recommendations state that the courts must focus equally on the child during divorce cases and handover the custody by checking all the necessary documents and view if there are any cases of domestic violence within the family.

• Custody of a Child – Its Legal Aspects, ResearchGate, https://www.researchgate.net/publication/373291369_Custody_of_a_Child_-Its_Legal_Aspects (last visited June 10, 2025)

• Hindu Marriage Act, No. 25 of 1955, Acts of Parliament, 1955 (India).

• Hindu Minority and Guardianship Act, No. 32 of 1956, Acts of Parliament, 1956 (India).

• Indian Divorce Act, No. 4 of 1869, Acts of Parliament, 1869 (India).