Adoption

Here is what you should know about child custody, visitation and guardianship before you act or reply to anyone. Legals365 is the legal platform of Advocate B.K. Singh and associates, based in Delhi NCR.

In short. Child custody in India is decided by the family court, or the district court where there is none, under the Guardians and Wards Act 1890, the Hindu Minority and Guardianship Act 1956 and the custody provisions of the marriage laws. The welfare of the child comes first, above the rights of either parent. Courts grant interim custody, visitation and joint arrangements, and orders can be changed as the child grows.

Custody cases are rarely about law alone. They are about where a child will sleep, which school the child will go to, who will take the child to the doctor and how often the other parent will see the child. The law gives a framework for answering those questions, and the courts apply it with one overriding test: what is best for this child, now and as the child grows. The rights of mother, father and grandparents matter, but only as part of that test.

This page explains the difference between custody and guardianship, the laws that apply to different communities, where to file, how interim custody and visitation work, what courts look at, how relocation and international removal are handled, the role of grandparents, guardianship of a child's property, and the related questions of adoption, surrogacy and children at risk. It is written for parents on either side of a dispute, and for grandparents and relatives who are caring for a child.

Law

Guardians and Wards Act 1890; Hindu Minority and Guardianship Act 1956; section 26 of the Hindu Marriage Act 1955, section 38 of the Special Marriage Act 1954 and corresponding provisions in other personal laws; section 21 of the Protection of Women from Domestic Violence Act 2005; Hindu Adoptions and Maintenance Act 1956; Juvenile Justice (Care and Protection of Children) Act 2015; Surrogacy (Regulation) Act 2021.

Forum

Family court where one has been set up, otherwise the district court; the court within whose limits the child ordinarily resides; High Court for habeas corpus and appeals; District Magistrate for adoption orders under the Juvenile Justice Act.

Time limit

No limitation for a custody or guardianship petition while the child is a minor; appeal from a family court order to the High Court within 30 days under section 19 of the Family Courts Act 1984.

Test applied

Welfare of the child as the first and overriding consideration, including the child's age, health, education, emotional ties and, where the child is old enough, the child's own wishes.

Documents

Child's birth certificate, school records, medical records, marriage and divorce papers, proof of income and residence, photographs and messages showing involvement, any FIR, DV order or earlier court order.

Custody, visitation and guardianship: what each means

Custody is about who the child lives with and who takes daily care. Guardianship is wider: a guardian has legal authority to make decisions about the child's person and property, such as education, medical treatment, passport and dealings with the child's assets. A parent can be a guardian without having custody, and often is, which is why a father who loses physical custody still usually has a say in major decisions.

Visitation, sometimes called access, is the time the non-custodial parent spends with the child. It can be weekend visits, overnight stays, school holidays, festival days, video calls, or supervised meetings at a court's child-friendly room where there are safety concerns. Courts treat contact with both parents as something the child is entitled to, not a favour from the custodial parent.

Indian courts also grant joint or shared custody, where the child spends substantial time with both parents under a structured schedule. It works when parents live near each other and can communicate without constant conflict. Where they cannot, courts usually prefer one primary home with generous visitation.

The laws that apply

Which law and which court, by situation

Where to file a custody case

A custody or guardianship petition is filed in the court within whose limits the child ordinarily resides. Where a family court has been set up, as in Delhi, Gautam Buddh Nagar and Ghaziabad, it has exclusive jurisdiction; elsewhere the district court hears the case. In Delhi the family courts sit in the district court complexes at Tis Hazari, Saket, Karkardooma, Rohini, Dwarka and Patiala House, and the right one depends on the area where the child lives. Our page on district court cases in Delhi NCR explains how the complexes are divided.

Ordinary residence is a question of fact. A child taken to another city a few weeks before filing does not necessarily become an ordinary resident there, and courts look at where the child lived and went to school before the dispute. Parents sometimes move a child just before filing to choose a convenient court. That rarely helps and often harms the parent's credibility.

If a divorce case is already pending, custody is usually decided by the same court under the marriage law, rather than in a separate guardianship case. Where cases are pending in two different states, a transfer petition before the Supreme Court is common; see our page on Supreme Court transfer petitions.

What courts look at when deciding custody

Courts decide custody on the welfare of the child, which they understand broadly. It includes physical safety and health, emotional security, continuity in schooling and friendships, the bond with each parent and with siblings, the moral and ethical environment of each home, and the ability of each parent to give time and attention. Money matters, but less than people expect; the court can order the better-off parent to pay maintenance rather than shift custody to that parent.

Young children usually stay with the mother unless there is a strong reason otherwise, reflecting both section 6 of the HMGA for children under five and the general view that very young children need continuity of primary care. As children grow, the scales are more even, and a father who has been actively involved in the child's daily life stands on equal footing.

The child's own wishes count when the child is old enough to form an intelligent preference. Judges often speak to children in chambers, without the parents present, to understand what they want and whether they have been coached. A clearly tutored child's statement carries little weight, and a parent found to have tutored the child loses credibility.

Conduct of a parent matters when it affects the child. Violence, substance abuse, neglect, or repeated attempts to cut the child off from the other parent are taken seriously. A parent's remarriage or a new relationship is not by itself a ground to deny custody, though the court will look at how the new household treats the child.

Filing a custody or guardianship petition, step by step

The process below is for a petition under the Guardians and Wards Act; a custody application within a divorce case follows similar steps.

1. Collect the facts and papers

   Gather the child's birth certificate, school and medical records, proof of your residence and income, marriage and any separation papers, and evidence of your involvement in the child's life, such as school communications, photographs and messages.

2. Draft the petition

   The petition sets out the child's details, the relationship and history of the parents, where the child has lived, what you are asking for (custody, joint custody, visitation, guardianship) and why it serves the child's welfare. It is filed with an affidavit and a list of documents.

3. Apply for interim relief

   File a separate application under section 12 of the Guardians and Wards Act for interim custody or interim visitation, especially where you have no contact with the child or the child's safety is at risk.

4. Mediation and counselling

   Family courts usually refer custody disputes to the court's mediation centre and may involve a counsellor. Many cases settle at this stage with a written parenting plan.

5. Evidence and hearing

   If there is no settlement, both sides file evidence by affidavit and are cross-examined. The judge may meet the child and may call for a report from a counsellor or child welfare expert.

6. Order and appeal

   The court passes a reasoned order on custody, visitation and guardianship. An appeal from a family court order lies to the High Court within 30 days under section 19 of the Family Courts Act.

Custody orders are never truly final. Either parent can apply to modify the order when circumstances change, such as a move, a new school stage or a change in the child's needs.

Interim custody and urgent situations

Interim custody decides where the child lives while the case is pending, and because cases take time, it often shapes the final outcome. Courts are reluctant to disturb a child's settled routine at the interim stage unless there is a real reason. That is why the first few weeks after separation matter so much.

If a child has been taken away and you have no contact, act quickly. Apply for interim visitation or custody, and where the child has been removed from lawful custody or a court order is being disobeyed, consider a habeas corpus petition in the High Court or an application under section 25 of the Guardians and Wards Act. The High Court in a habeas corpus case decides on the child's welfare, not merely on which parent has the better legal claim; see our page on cases in the Delhi High Court.

Do not take the child back by force or trickery. Snatching a child from school or from the other parent's home, even if you feel entitled to custody, can lead to police complaints, and courts dislike self-help. In custody matters that come to Advocate B.K. Singh's office, a parent who waited a week for an interim order usually ends up in a stronger position than one who took matters into his or her own hands.

Visitation rights and making them work

A visitation order should be specific: days, times, pick-up and drop points, holidays, festivals, birthdays, video calls and how changes are agreed. Vague orders such as reasonable access invite disputes. Ask the court for a schedule that fits the child's school timetable and the distance between homes.

Where there are allegations of abuse, or the child has not seen the parent for a long time, courts often begin with supervised visits at the family court's child-friendly room or at a counsellor's office, then move to unsupervised day visits and overnight stays as trust builds. Video calls fill gaps, especially where one parent lives in another city or abroad.

When the custodial parent repeatedly blocks visits, the remedy is to go back to the court. The court can enforce its order, initiate contempt, modify custody or, in persistent cases, transfer custody to the other parent. Keep a dated record of each refused visit, with messages, because the court will want details rather than general complaints.

Relocation and taking a child abroad

A custodial parent who wants to move to another city or country with the child should seek the other parent's written consent or the court's permission, particularly if a custody case is pending or an order is in force. Courts weigh the reason for the move, such as a job or remarriage, against the loss of contact for the other parent, and often permit relocation with a revised visitation schedule, video contact and travel arrangements.

International disputes are harder. India has not signed the Hague Convention on the civil aspects of international child abduction, so there is no automatic mechanism for return of a child brought to or taken from India. Indian courts decide such cases on the welfare of the child, giving weight to orders of foreign courts and to how long the child has lived in each country, but not treating them as binding.

If you fear a child may be taken abroad without consent, ask the court for an order restraining removal from India and directing deposit of the child's passport. Passport authorities also look at court orders and the other parent's consent when issuing or renewing a minor's passport; check the current Passport Seva rules for the forms needed where one parent does not consent.

Grandparents and other relatives

Indian law does not give grandparents a separate statutory right of visitation, but courts regularly allow grandparents to see their grandchildren where it serves the child's welfare, particularly where they were closely involved in raising the child or where one parent has died. A grandparent can join a custody case or file an application for visitation in the family court.

Where both parents have died, or neither is able or willing to care for the child, grandparents, uncles, aunts or other relatives can apply under the Guardians and Wards Act to be appointed guardian. Section 17 asks the court to consider nearness of kin, the wishes of a deceased parent and the existing relationship with the child. A parent can also appoint a testamentary guardian by will under the HMGA; our page on wills, succession and inheritance covers how to do that.

Disputes between a surviving parent and the deceased parent's family are common after a death, especially where the child lived with the grandparents. The surviving parent usually has the stronger claim, but courts do not hand over a child mechanically and may allow a gradual transition with continued contact.

Guardianship of a child's property

A child may own property through inheritance, gift, a will or insurance and bank accounts. Under section 8 of the HMGA, a natural guardian of a Hindu child cannot sell, mortgage, gift or exchange the child's immovable property, or lease it beyond five years or beyond one year after the child turns 18, without the court's permission. A transfer made without permission can be set aside at the child's instance.

To sell or mortgage a minor's share, for example in a family house being sold or partitioned, the guardian applies to the district court for permission, showing that the transaction is necessary or clearly beneficial to the child. Buyers and banks routinely ask for the court order, so it is better to get it before signing anything. For a court-appointed guardian, sections 29 and 31 of the Guardians and Wards Act impose similar restrictions.

Property questions often arise in family settlements after a death, where a minor's share is being released or adjusted. Our page on family law disputes and settlements covers settlements generally.

Documents for a custody or guardianship case

Child maintenance alongside custody

Custody and maintenance usually travel together. The parent with custody can claim maintenance for the child from the other parent under section 144 of the BNSS, under section 20 of the Hindu Adoptions and Maintenance Act for Hindu children, or within the matrimonial case under section 26 of the HMA, which asks the court to decide applications for children's maintenance and education within 60 days of service of notice as far as possible.

Courts require both parents to file affidavits of their assets and income, and they fix maintenance considering the child's needs, schooling, health and the standard of living the child is used to. A parent cannot refuse maintenance because visitation is being blocked, and a parent cannot block visitation because maintenance is unpaid; each is enforced separately. See our page on maintenance and alimony claims.

Adoption

Adoption creates a permanent legal parent and child relationship, unlike guardianship, which ends when the child turns 18. Hindus, Buddhists, Jains and Sikhs can adopt under the Hindu Adoptions and Maintenance Act 1956, usually with a giving and taking ceremony and a registered adoption deed, subject to conditions such as the age gap and the rule that a person with a living son cannot adopt another son. Anyone, of any religion, can adopt through the Juvenile Justice Act 2015 and the Adoption Regulations 2022.

Adoption under the Juvenile Justice Act runs through the Central Adoption Resource Authority and its online CARINGS portal: registration, a home study by a specialised adoption agency, referral of a child, acceptance and an adoption order. Since the 2021 amendment, adoption orders are issued by the District Magistrate rather than a court. Relative adoption and step-parent adoption follow a simpler track under the same regulations, and inter-country adoption needs CARA's no objection. Eligibility rules on age, marital status and the sex of the child for single applicants apply; check the current regulations.

Informal adoptions, where a child is simply handed over by relatives without following either law, create problems later with school records, passports and inheritance. If a child has been living with you under such an arrangement, take advice on regularising it.

Surrogacy

Surrogacy in India is regulated by the Surrogacy (Regulation) Act 2021 and its rules. Only altruistic surrogacy is permitted; commercial surrogacy is banned. An intending couple must be married Indian citizens within the age limits fixed by the Act and must obtain a certificate of essentiality and a certificate of eligibility from the appropriate authority, along with an order on parentage and custody of the child from a magistrate's court. Widowed or divorced women within a stated age range can also opt for surrogacy.

The surrogate mother must meet conditions on age, marital status and having a child of her own, can act as a surrogate only once, and must be covered by insurance. A child born through surrogacy is treated as the biological child of the intending couple, with all rights. The rules on use of donor gametes were changed in 2024, so check the current position before starting. Agreements that try to pay the surrogate beyond medical expenses and insurance, or that are arranged through agents, are unlawful and should be avoided.

Children at risk: endangerment, abuse and neglect

Where a child is in danger, the first step is protection, not a custody petition. Call the police on 112 or Childline on 1098. Under the Juvenile Justice Act 2015, a child who is abused, neglected or at risk is a child in need of care and protection, and the Child Welfare Committee in the district can pass orders for the child's care, including temporary placement. Section 75 of that Act punishes cruelty by a person who has charge of a child.

Sexual abuse is dealt with under the POCSO Act 2012, which requires anyone who knows of such an offence to report it, and provides for child-friendly procedures and special courts; see our page on sexual offence and POCSO cases. Where violence is within the home, a DV case with an application under section 21 for custody can sit alongside criminal proceedings; see dowry, domestic violence and cruelty cases.

False allegations of abuse made to gain custody are a real problem, and courts are alert to them. They can damage the child, who may be questioned and examined, and they can rebound on the parent who made them. Make allegations only on genuine grounds and with whatever evidence exists, and let the authorities investigate.

Common mistakes in custody disputes

• Snatching the child. Taking the child by force or deception damages your case and can lead to criminal complaints.
• Speaking badly of the other parent to the child. Courts notice alienation and tutoring, and they hold it against the parent responsible.
• Waiting too long. The longer a child stays settled in one home, the less likely a court is to disturb it. Apply for interim visitation early.
• Linking money and access. Withholding maintenance to force visits, or blocking visits to force maintenance, hurts the child and annoys the court.
• Exaggerated allegations. Unsupported claims of abuse or misconduct undermine your credibility on the points that are true.
• Ignoring the order. Not following a visitation schedule, even out of frustration, can lead to contempt and a change of custody.

How custody questions change by family situation

For married parents going through a divorce, custody is usually decided within the matrimonial case, and in a mutual consent divorce the parents agree on custody and visitation in the terms of settlement; see our pages on contested divorce and mutual consent divorce. For unmarried parents, the mother is the natural guardian of a child born outside marriage under section 6 of the HMGA, and the father can seek custody or visitation under the Guardians and Wards Act.

For NRI parents, the questions are jurisdiction, foreign court orders and relocation, and many such cases begin as habeas corpus petitions. For families where a parent has died, the issues are guardianship, the child's inheritance and the role of grandparents. For children with special needs, courts look closely at which parent can provide the therapy, schooling and routine the child needs.

Most custody disputes are better settled than fought. Court-annexed mediation and counselling exist for this reason, and a parenting plan written by both parents is easier to live with than one imposed by a judge; see our page on mediation, conciliation and Lok Adalat. When Advocate B.K. Singh advises a parent at the start of a custody case, the first question he asks is not what the law allows but what daily routine the parent can actually offer the child, because that is what the court will want to know too.

What to do this week

Write down a timeline of the child's life over the past year: where the child lived, who did the school runs, who handled doctor visits, and when contact with the other parent stopped or changed. Collect the documents listed above. Keep all communication with the other parent polite and in writing.

If you have no contact with the child, or the child is at risk, do not wait; an application for interim visitation, or for protection, can be filed quickly. If you are thinking of moving with the child, get written consent or the court's permission first.

If you want your papers checked before you act, the team of Advocate B.K. Singh at Legals365 can review them and tell you the next step through the talk to a lawyer page.

Frequently asked questions

Who gets custody of a child after divorce in India?

There is no automatic rule. The court decides on the welfare of the child, considering age, health, schooling, emotional ties and each parent's ability to care. Young children usually stay with the mother, but fathers who have been involved in daily care can and do get custody or joint custody.

Can a father get custody of a child under five?

It is harder, because section 6 of the Hindu Minority and Guardianship Act says custody of a child under five should ordinarily be with the mother. But ordinarily is not always. Where the mother is unable to care for the child or the child's welfare is at risk with her, the court can give custody to the father.

What are visitation rights for the non-custodial parent?

Visitation is the time the non-custodial parent spends with the child, such as weekends, holidays, festivals and video calls. The family court fixes a schedule, which can start with supervised visits and expand over time. If visits are blocked, the parent can go back to the court to enforce the order.

How long does a child custody case take in a family court?

It depends on the court and whether the parents settle. Interim orders on visitation or custody can come within weeks, while a fully contested case with evidence can take a year or more. Many cases settle in mediation much sooner.

Do grandparents have visitation rights in India?

There is no specific statute, but courts often allow grandparents to meet their grandchildren where it is in the child's interest, especially if they helped raise the child or one parent has died. Grandparents can apply in the family court, and can seek guardianship if both parents are dead or unable to care for the child.

Can the child decide which parent to live with?

A child old enough to form an intelligent preference will be heard, and the judge may meet the child privately. The child's wish is an important factor but not the only one. Courts discount preferences that appear to be the result of coaching.

Can my spouse take our child abroad without my consent?

If a custody case is pending or an order is in force, removing the child from India without consent or the court's permission can be restrained and treated as a breach. You can ask the family court for an order restraining removal and directing deposit of the child's passport. India is not part of the Hague Convention on child abduction, so prevention matters more than cure.

What is the difference between custody and guardianship?

Custody is about who the child lives with and who provides daily care. Guardianship is legal authority over major decisions about the child's person and property. A parent can remain a guardian, with a say in schooling and medical treatment, without having physical custody.

Can a mother be the natural guardian if the father is alive?

Yes, in some situations. The Supreme Court has held that the word after in section 6 of the Hindu Minority and Guardianship Act means in the absence of, so the mother can act as natural guardian when the father is absent, uninterested or unable to act. For a child born outside marriage, the mother is the natural guardian.

How do I adopt a child legally in India?

Hindus, Buddhists, Jains and Sikhs can adopt under the Hindu Adoptions and Maintenance Act with a registered deed. Anyone can adopt through the Juvenile Justice Act by registering on CARA's CARINGS portal, completing a home study and obtaining an adoption order from the District Magistrate. Relative and step-parent adoptions follow a simpler process under the same regulations.

Is surrogacy legal in India?

Only altruistic surrogacy is legal under the Surrogacy (Regulation) Act 2021; commercial surrogacy is banned. The intending couple or woman must meet the Act's eligibility conditions and obtain certificates from the appropriate authority and a parentage order from a magistrate. Check the current rules, which were amended in 2024 on donor gametes.

What can I do if my child is being abused by the other parent?

Protect the child first by calling 112 or Childline on 1098 and reporting to the police; sexual abuse must be reported under the POCSO Act. You can then seek interim custody and restrict the other parent's visits through the family court or under section 21 of the Domestic Violence Act. Keep medical records and any other evidence.