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Child Custody | Difference of Child Custody and Guardianship

Legal Child Custody vs Legal Guardianship

Difference Between Physical and Legal Child Custody

The term “child custody” is often used in a general sense, but there are two types – physical and legal. Having physical custody of a minor means you have control over them during a defined period. In a divorce, custody of children is broken down into two elements: legal and physical. It’s not unusual for legal and physical custody to be set up differently. For example, parents might have joint legal custody, but not joint physical custody, especially if the parents live some distance apart.

Child Custody, the Guardianship and Family Lawyers in Pakistan

Child Custody Law in Pakistan and the Difference Between Child Custody and Guardianship

In Pakistan, family law plays a significant role in resolving disputes that arise between parents and guardians over their children’s welfare. Among these disputes, child custody and guardianship are two key areas that often require legal intervention. While both child custody and guardianship are concerned with the care, upbringing, and welfare of a child, they differ in terms of their legal definitions, implications, and procedures. In this detailed article, we will explore the Child Custody Law in Pakistan, the difference between child custody and guardianship, and the legal processes involved in both.

Child Custody Law in Pakistan

Child custody refers to the legal right of a parent or guardian to care for, raise, and make decisions regarding the child’s upbringing. In Pakistan, the issue of child custody is often settled by family courts, and these matters are governed by the Guardians and Wards Act, 1890. The law outlines how custody decisions are made, taking into account the child’s best interests as the foremost priority.

Types of Custody in Pakistan

There are two main types of custody:

  1. Physical Custody: Physical custody refers to where the child resides and who takes care of the day-to-day needs of the child. In many cases, one parent is granted physical custody, especially when the child is young, as it is assumed that the child requires the constant presence of a primary caregiver.

  2. Legal Custody: Legal custody involves the right to make important decisions about the child’s life, such as education, healthcare, religion, and more. Even if one parent has physical custody, legal custody may be granted to one or both parents, depending on the circumstances.

How the Court Decides on Custody

The Family Court in Pakistan has the authority to decide custody matters. In deciding on custody, the court considers several factors, such as:

  • The age of the child: The general rule in Pakistan is that children under the age of seven are usually given into the mother’s custody, as it is assumed that young children require the emotional and physical care typically provided by the mother.

  • Welfare of the child: The court looks at the child’s welfare in making custody decisions. This includes evaluating which parent can provide a stable home environment, financial support, education, and emotional care.

  • Parental fitness: The moral, emotional, and financial stability of the parents plays a significant role. The court will consider any history of abuse, neglect, or violence by the parents when determining which parent should have custody.

  • The child’s preference: If the child is of a sufficient age (usually around seven or older), the court may take the child’s preferences into account, although it is not the sole deciding factor.

Custody and Access Rights

In cases where one parent is granted custody, the other parent may be given visitation rights, ensuring that both parents can remain involved in the child’s life. The visitation schedule is set by the court and can be adjusted based on the situation. In some cases, shared custody may be awarded if both parents are deemed capable of caring for the child.

Change in Custody

If circumstances change after a custody decision has been made, the parent who is not satisfied with the arrangement may petition the court to review or change the custody order. Common reasons for seeking a change in custody may include a parent’s relocation, changes in the child’s needs, or a significant shift in a parent’s ability to provide proper care.


Guardianship in Pakistan

The Guardianship, on the other hand, goes beyond just custody and includes the legal rights to make decisions about the child’s welfare, such as managing finances, and property, and making major life decisions. In Pakistan, the Guardians and Wards Act, of 1890 regulates guardianship matters. While child custody is often focused on day-to-day care and living arrangements, guardianship typically deals with the legal responsibilities and authority over the child.

Key Aspects of Guardianship

  • Guardianship and legal authority: The guardian of a child has the authority to make decisions regarding the child’s education, health, and other essential aspects of life. This responsibility often falls on the child’s parents, but in the absence of the parents or in cases of parental incapacity, the family court may appoint a guardian.

  • Appointment of a Guardian: Under the Guardians and Wards Act, the family court has the power to appoint a guardian for the child if both parents are unable or unfit to fulfill their duties. The court may also grant guardianship to relatives like grandparents, uncles, aunts, or other responsible adults if deemed appropriate.

  • Financial Responsibility: A guardian also manages the child’s property and finances. This includes administering any assets or income that the child may have, such as inheritance or gifts. Guardians must act in the child’s best interest, and the court supervises guardianship in cases where the child’s welfare is in question.

  • Guardianship vs. Custody: While custody pertains to a child’s day-to-day living arrangements, guardianship involves overseeing all decisions relating to the child’s care, including financial and educational decisions. A parent may have guardianship rights but not physical custody, and vice versa.


The Difference Between Child Custody and the Guardianship

Although child custody and guardianship both involve the care and protection of a child, they differ significantly in their scope, responsibilities, and legal implications.

  1. Scope of Responsibility:

    • Custody: This pertains to the child’s physical care and where the child lives. The parent or guardian with custody provides daily care, emotional support, and supervision.
    • Guardianship: This is broader and includes the right to make major decisions regarding the child’s welfare, such as managing property, choosing education, and handling medical matters.
  2. Legal Authority:

    • Custody: The parent who has physical custody has the legal right to decide where the child will live, while the non-custodial parent may have visitation rights or joint legal custody.
    • Guardianship: The guardian has legal authority to make critical decisions on behalf of the child, including financial matters and major life decisions, and is responsible for the child’s overall well-being.
  3. Duration and Changeability:

    • Custody: Custody can be temporary or permanent, and it can be modified by the court based on changes in circumstances, such as the child’s welfare or parental capacity.
    • Guardianship: Guardianship can also be temporary or permanent, but it involves a more long-term and legal responsibility, particularly in cases where the child’s parents are unable or unfit to serve as guardians.
  4. Eligibility:

    • Custody: In Pakistan, a parent, typically the mother, is given physical custody of a child under the age of seven, unless there are exceptional circumstances.
    • Guardianship: Guardianship can be granted to both parents or a non-parent if the parents are unfit, unavailable, or deceased.

Conclusion

  • Importance of Understanding Child Custody and Guardianship in Pakistan

    Understanding the difference between child custody and guardianship is essential for parents and guardians who are navigating the complex legal terrain of family law in Pakistan.

  • Child Custody: Focus on Physical Care

    While custody focuses on the child’s physical care, guardianship involves comprehensive legal authority and decision-making responsibilities.

  • Legal Framework: Guardians and Wards Act, 1890

    Both processes are governed by the Guardians and Wards Act, 1890, and the family courts in Pakistan are tasked with ensuring that the child’s welfare remains the top priority.

  • Seeking Legal Counsel for Custody or Guardianship

    Whether you’re seeking custody of your child or applying for guardianship, it’s crucial to seek professional legal counsel to guide you through the process and ensure your child’s best interests are always protected.

Frequently Asked Questions - The Guardianship and Child Custody in Pakistan

What is The Guardianship Law in Pakistan?

The Guardianship Law in Pakistan is designed to ensure the welfare and well-being of a child, focusing on determining who will have legal responsibility for the child’s upbringing. It covers the appointment of guardians, their powers, and the rights of parents or legal guardians over the child’s education, health, and other significant life decisions.

How does The Guardianship system work when parents are separated?

When parents are separated, the court may intervene to decide who will take on the guardianship role. Typically, the mother holds guardianship for minor children, but in some cases, the father or other close family members may be appointed as guardians, depending on what the court believes is in the best interest of the child.

What factors does the court consider in Child Custody cases?

In Child Custody cases, the court considers the child’s age, emotional attachment with each parent, the parent’s ability to provide for the child’s needs, the stability of each parent’s living situation, and the child’s overall welfare. The court aims to place the child in the environment that best supports their development and happiness.

Can a mother be denied Child Custody in Pakistan?

While the mother has a primary right to Child Custody under Pakistani law, she can be denied custody if she is deemed unfit due to factors like negligence or harm to the child’s well-being. The court makes decisions based on the child’s best interest, considering both parents’ circumstances.

Who can apply for Child Custody?

Either parent can apply for Child Custody in Pakistan. In cases where both parents are unable to care for the child, extended family members or guardians may seek custody. However, the final decision rests with the court, which evaluates all relevant factors to determine what arrangement is best for the child.

How long does a Child Custody dispute take to resolve?

The duration of a Child Custody dispute in Pakistan can vary depending on the complexity of the case, the availability of evidence, and the court’s workload. Simple cases may be resolved in a few months, while more contested cases may take longer. Legal advice and assistance can expedite the process.

What are the rights of a father in a Child Custody dispute?

The father has the right to apply for Child Custody and can seek joint custody or visitation rights. Although mothers are typically granted custody of young children, fathers are entitled to participate in the child’s life decisions, provided the court deems it in the child’s best interest.

How is The Guardianship of a child transferred to someone else?

The Guardianship of a child can be transferred to another person through a court order. If the current guardian is deemed unfit or incapable of fulfilling their responsibilities, a petition can be filed for the transfer of guardianship. The court will assess the child’s welfare before making a decision.

Can grandparents seek Custody of their grandchildren?

Grandparents can seek Custody of their grandchildren if they can demonstrate that they are better suited to care for the child than the biological parents. The court will review the case to ensure that the grandparents can meet the child’s needs, both emotionally and physically.

What is the role of the court in Child Custody disputes?

The role of the court in Child Custody disputes is to ensure that decisions made regarding the child’s future are in their best interest. The court evaluates all relevant factors, including the child’s age, preferences, and emotional ties, as well as the parent’s ability to care for the child. The court ultimately makes a binding decision on custody arrangements.

Can a child express their preference in a Custody case?

Yes, a child may be allowed to express their preference in a Custody case, especially if the child is of sufficient age and maturity to make an informed decision. The child’s wishes are taken into consideration, but they are not the sole determining factor in the court’s decision.

What happens if the custodial parent violates the custody order?

If the custodial parent violates the court’s Child Custody order, the non-custodial parent may file a petition with the court to enforce the order. The court can impose sanctions, including fines or a change in custody arrangements, to ensure the child’s welfare and the enforcement of legal agreements.

Can Child Custody arrangements be modified in the future?

Yes, Child Custody arrangements can be modified in the future if there is a significant change in circumstances. Either parent can petition the court for a modification, particularly if the child’s needs change or if there is evidence that the current arrangement is no longer in the best interest of the child.