Child custody Law is a legal term that deals with guardianship and defines the legal and practical relationship between a parent/guardian and a child in the care of that person. Child custody entails legal custody, which is the right to make decisions concerning the child, and physical custody, the right and obligation to house, shelter, care for, and ensure the welfare of the child. An individual who is in charge of a minor should look after the minor’s health, education, and overall well-being. The court will consider the welfare and interests of the child first in all issues concerning a minor rather than the rights of the parents.

A minor in law refers to a person who is under the age of majority and who is dependent upon an adult to protect them and their property, but a guardian refers to a person who, by the order of an authorised court, has been bestowed the responsibility of taking care of a minor.

Child Custody Laws in Pakistan

In Pakistan, the Guardianship and child custody law are stipulated in the Guardians and Wards Act 1890, a pre-partition law that is still followed, with amendments made from time to time. The Act formed the Guardian and Wards department in every province, and it dealt with the issues of minors and guardians.

Child custody in Pakistan means the right of the parents to raise and care for the child, which includes the right to make decisions about the child. Deciding on such matters is the primary task of a parent, which incorporates the fundamental needs of the child, like health, education, religious care and wellbeing.

Child custody has emerged as a sensitive issue following each divorce in Pakistan, which makes both parents aware of the laws of child custody. Every parent pursues all forms of legal provisions in a bid to secure custody of his or her child, even though it is not easy being a single parent.

Guardians & Wards Act, 1890

Sections 17 and 25 – Interpretation under the Guardians and Wards Act, 1890: Hizanat and Willayat.

In the rights to custody of minors by their parents, what are generally known as the Hizanat and the Willayat, are enclosed by sections 17 and 25 of the Guardians and Wards Act, 1890. Custody of the minors by the mother is termed as Hizanat or Hidanat (as pronounced in Asian and Arab jurisdictions, respectively) by the author and custody of the minors by the father is termed as Willayat. Hizanat, in its literal meaning, means the upbringing. Thus, it also addresses the aspect of Wallayat.

It is also necessary to mention that in legal terms, the term Hizanat or Willayat cannot be applied to the degree of a mother or father of minors, since the task of bringing up may be carried out by any person who has the legal right to do it, i.e. aunts or grandmothers. For this reason, the corresponding chapter in the vast majority of the textbooks, especially those written in Arabic, is titled by the term Al Hizanat.

Role of Guardian Courts

All the issues regarding minors in the country are dealt with by the Guardian and Wards department, which includes Guardianship / Child Custody hearings. When you are considering the idea of divorcing or separating from your husband, you need to present a divorce petition at the local district court. In case you have some children in the marriage, then most probably you would have to undergo a Guardianship / Child Custody Law hearing process in the course of your divorce or thereafter.

The judge in your case will decide which of you should have primary custody of the children, considering the best interests of the children, in addition to:

• Who is going to take care of the children, financially?
• The living conditions of both parents (where they live)
• Who has been watching the kids (the primary caregiver) since the time they were born?

Being awarded primary care does not imply that you are being awarded physical custody; it implies that you are responsible for making crucial decisions regarding how your children will live in the future, where they study, what religion they will follow and even financial support. The majority of judges also consider who is better positioned emotionally to deal with these important responsibilities in making decisions on the primary caretakers of children.

Minor’s Welfare is the Key Factor

The most important consideration that the court makes when giving any parent custodial rights is the issue of child welfare. So, the financial stability of the parent, any reported misconduct, character, and ability of the parent are taken into consideration.

Physical rights are bestowed by courts on one of the parents, but more cases have been ruled in shared legal responsibility and guardianship of any child(ren). Therefore, Custody in Pakistan may involve both biological and legal considerations. The legal right over the minors stipulated by the judicial system adopted in Pakistan means that the parent has the sole right to take care of the juvenile under consideration.

When handling such cases, the court will look at the choice made by the minor in question, assuming that he/she is sufficiently mature to make an intelligent choice.

In Pakistani Laws, a minor is awarded custody to the mother; this right is referred to as the right of hizanat. However, this right ceases when the son reaches a certain age; though it is not an absolute right, and it is granted in the best interest of the boy. Girls generally remain in the custody of their mothers until they reach puberty.

Another significant thing in this law is that the behaviour of the mother is highly valued, and in case it is considered as objectionable, the mother may not be granted custody. According to the court of law, the father is entitled to custody following the expiry of the term of the mother. Grandparents may be granted custody in case both parents are not available.

Child Custody and Visitation Rights after Divorce

In Pakistan, the child custody or guardianship dispute may begin even at the stage of separation before formal divorce. However, all these things can turn into practice after divorce or khula. The child custody right becomes a very serious matter. The Pakistani laws of child custody and the Guardian Court come into play in order to resolve the matter.

The parents do not want to abandon their child because of love and affection. Among the most significant conflicts in the process of child custody in Pakistan is the issue of visitation rights. Historically, a couple that has undergone a divorce or khula may develop serious conflicts. The right to visit is not granted to the other partner by either the husband or the wife who is the custodian. The non-custodial parent is the only one entitled to visit the minor. Thus, the Guardian Court of Pakistan has a legal responsibility to allow the right to visit and create a balance between a father and a mother.

How SARDAR KHAN & CO may help?

When dealing with child custody/guardianship, you would always want to have a good child custody lawyer. We have child custody lawyers who are fully committed to child custody cases, since it is important to mention that, regardless of custom and personal laws, any parent who desires to be in custody of a child, but fails to agree on it, must apply to the Court individually.

Custody of a child does not automatically pass to a specific parent to a specific parent once the child has reached a certain age. There is a common misconception that we hear so often that the custody of a son automatically transfers to the father when a Boy attains the age of seven years, but it is not the case.