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Mutual Consent Divorce and Child Custody in India

It all starts with high hopes, thousands of dreams for the upcoming future, abundant celebrations, with everyone wishing the newly wedded couple a forever of togetherness. Time flies, hardships cross the paths, and then, reality hits, and sometimes, people are not able to stay together anymore. It may not be so difficult if both wish to end things peacefully. However, marriage is not just husband and wife. Children of those couples have the most at stake. Initial years decide the upbringing of what the human would shape like, not externally but internally. If parents fight over who will keep the child, it is not good for anyone. Here, we throw some light upon mutual divorce and custodial rights.

 

Mutual Divorce with a Child

When a married couple decides to part their ways through mutual consent divorce, and one or more children are born in the wedlock, child custody becomes a big issue. In such cases, it is advisable for parties to decide conditions of mutual divorce and child custody amicably. If parties have already decided the conditions for mutual consent divorce, and child custody remains in question, they may go for litigation so that the Court decides who will get custody of the child - mother or father. In case the parties have mutually decided regarding the custody and financial aspects related to the child, the terms may be included in the settlement deed and the mutual divorce petition.

 

Mutual Consent Divorce Process for Child Custody

When a husband and wife settle their terms for mutual divorce, the same are reduced on paper in the form of a compromise or settlement deed, signed by both, and a petition for mutual consent divorce is prepared by their lawyers. If the parties/parents have already decided the conditions for child custody, as to who will get custody of the child/children, or it will be shared custody, or who gets visitation rights and the specific days for the same, financial responsibility of the child, etc., the same can be reduced in the petition for mutual divorce. Once the divorce is granted by the Court, child custody is also settled.

 

However, in cases where parents are not able to amicably settle the matter pertaining to child custody, they are usually advised to proceed with a mutual consent divorce based on settled terms and conditions. The question of child custody in such cases may be taken before the Court through litigation. The same is initiated by the spouse who is seeking custody of the child from the other one with whom the child is staying for the time being. The Court may look at the interest of the child and claims by parents regarding who will better be able to take care of the child, and decided child custody case accordingly. It may be noted that the Court may not necessarily provide custody to parents, since the focus here is not parents but the best interest of the child so concerned.

 

MoU for Child Custody

When the parties have agreed amicably regarding the aspects pertaining to child custody, and are prepared with the compromise/settlement deed for mutual consent divorce, they may add the conditions for child custody in the same document, or make a separate memorandum of understanding in this regard.

The conditions for mutual consent divorce with child custody may include the following aspects:

1.      Permanent Child Custody

The conditions in mutual consent divorce and child custody petition should specify who is getting permanent child custody, whether it is the father or the mother. 

 

2.      Shared Parenting

If the parents have decided to co-parent their child, when no single parent would enjoy absolute custodial rights for the child, the MoU for child custody should specify the number of days/months a parent shall keep the child. Even if it is one parent during weekdays and the other during weekends/holidays, the agreement/petition should specify the same. In case of shared parenting, the deciding authority for crucial aspects related to child’s upbringing should also be settled in conditions for mutual consent divorce and child custody, if possible.

 

3.      Visitation Rights

In case one parent is getting permanent child custody as per the Memorandum of Understanding, visitation rights should also be decided then and there. While one parent gets to stay with the child, the other should at least get the right to visit the child. The MoU for child custody should also specify the number of days, hours, whether visitation rights would be applicable on a weekly/monthly/bi-monthly basis or would it be the mutual understanding of the parents. It is advisable to decide the days so that the matter is not left to sprout another dispute after mutual consent divorce and child custody is settled already. 

 

4.      Holidays

If one parent gets to stay with the child with permanent child custody, and the other gets visitation rights, the possibility of vacations should be discussed in the deed. Holidays/vacations are the best chance for children to get close to their parents, and make memories. Such an important aspect, if missed out to be addressed in the conditions pertaining to mutual consent divorce and custodial rights, may turn out to be a matter of discord in future. Thus, it is better to address the same while other conditions are being discussed.

 

5.      Financial Needs of the Child

Usually, the responsibility for maintenance of children dawns upon the father. Whether it is the monthly expenses, or one time settlement along with alimony settlement for mutual consent divorce, the same should be specified. Once paid, if parents wish to pay for other expenses out of will, that is another case. Otherwise, financial aspects are advised to be decided well in advance to avoid any future trouble.

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