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Guardianship, Legal Guardianship, and the Laws of Guardianship Pakistan

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Guardianship is a Legal Arrangement

Guardianship is the natural arrangement, while legal guardianship is the legal arrangement with respect to the care and upbringing of a minor. In the absence of a parent, an adult, who is competent and capable of acting as a guardian, can be appointed by the court to become the guardian of the minor. The functions of the guardian are to provide for the basic needs and protection of the ward.

Family Court has Jurisdiction to Grant Legal Guardianship

Court Marriage in Karachi Islamabad Pakistan

Under Pakistani family laws, children are to be under their parents’ care and maintenance. However, in certain situations, the court can pass an order granting guardianship of the children in question. Guardianship is defined as any person who takes care of a minor or a restricted adult for property purposes.

Guardianship may be granted through adoption (by a couple), will, or a court order itself.
Guardianship of minors under 18 is governed by section 172 of the Pakistan Penal Code, 1860 and the Government of the Punjab, Court of District Judge’s (Junior Division) Act, of 1870

Guardianship of Minors has Become An Issue

The Guardianship of minors through Family Courts has recently become an issue of great debate in the country, especially after a series of cases that came before the courts, challenging the manner in which the powers given to family courts under the Guardians and Wards Act, 1890 had been used by the authorities and upon examination of the matter very little clarification was forthcoming.

Guardians and Wards Act, 1890

The Guardianship of minors through family courts continued to be regulated by the Guardians and Wards Act, 1890, which was still in force. The Court in exercising jurisdiction under this Act referred to the principles laid down in the Anglo-Indian case of Young v. Young (1876) LR1 P and D 396 for determining whether a guardian should be discharged and accounts required from him or not.

The Difference Between Legal Guardianship and Child Custody

The difference between legal guardianship and child custody is emphasized above. Pakistan has undergone a paradigm shift in its laws of marriage, divorce, minority, guardianship, and adoption in the past decades. To reiterate; Pakistan had inherited from India the Hindu Law of Mitahit Adoption (adoption by substitution) via Section 88 of the old Indian Code of Civil Procedure 1908 which was itself based upon Sir Matthew Hale’s 18th-century treatise. In contrast to countries such as the UK, USA, etc. where adoption is based on the concept of proprietary parental rights and duties as opposed to liabilities. The Pakistan Code does not have much to offer than a weak attempt at codifying traditional Muslim rules for adoption sanctioned by the Holy Quran and Sunnah.

Implementation of Child Protection Policy

Pakistan is implementing the State policy of Protection and Welfare of Minor, popularly known as the Child Protection Policy. Pakistan has ratified and is an active member of the Convention on the Rights of the Child (UNCRC) and its Optional Protocol. Under Article 42 of the Convention, a State becomes obligated to take all appropriate legislative, administrative, social, and educational measures to ensure the protection and care of children within its territory from all forms of neglect, exploitation, abuse or mistreatment. Children are entitled to special care, assistance, and protection provided by the State. 

Both guardianship and custody describe legal relationships between an adult and a child. Custody refers to a child’s biological parents, whereas guardianship would be given to a non-biological parent. Thinking about custody may be a necessary part of a couple’s separation or divorce proceedings, whereas guardianship is usually a more long-term approach to this kind of question. For more in-depth, expert advice, consider consulting a professional financial advisor. Let’s compare the key differences between guardianship and custody.

What Is the Meaning of Child Custody?

Children have a legal relationship with their parents, most often their biological parents called custody. 

In legal terms, “custody” refers to the relationship between a child and his or her parents, normally his or her biological parents. Parental separation or divorce are common reasons for a dispute over child custody. Children may be assigned physical or legal custody. A child’s physical custody relates to the child’s day-to-day life, including their living arrangements, medical care, and other basic needs. On the other hand, legal custody involves making major decisions on behalf of the child. It may even be possible for a parent to have partial physical custody of their child based on these distinctions.

What Is the Guardianship?

Child Custody

When a child under the age of 18 needs to have someone make legal decisions on their behalf, guardianship is often established.  The primary purpose of guardianship is to provide help for people who are incapacitated, that is, unable to take care of themselves.

In some cases, adult guardianship may be an option for someone who is 18 or older.

A guardian is different from a parent in that they can make legal and physical decisions for the child. While legal guardianship can be compared to adoption in some respects, the child’s biological parents remain legally considered to be their child’s parents during the legal guardianship process. Technically, parents can also act as guardians, in which case they retain all of their parental rights and responsibilities. Adoption, however, results in them losing their legal rights.

Legal guardians are responsible for taking care of children whose parents are unable to care for them. A person may be incarcerated, deceased, or incapacitated for various reasons. A legal guardian may be a relative, such as an aunt, uncle, or grandparent.

Appointing Custodians vs. Guardians

Custody over a child can only be granted by a court. Parents can make recommendations to the court, but the judge makes the final decision.

Guardianship is also finalized in court, but parents can also appoint a guardian. In the absence of an incarcerated parent, another person may be chosen to act as their guardian. Despite this, no parenting rights or responsibilities can be transferred without a court order.

It is required in both scenarios to fill out necessary paperwork that proves the child’s best interests are at the heart of the proceedings, and to pay for legal fees. A meeting will be scheduled between the child and all potential parties involved after the paperwork is filed in court.

Term of Custodianship vs. Guardianship

As a general rule, the process for determining custody is flexible and open to modification based on any substantial change in circumstances, if that modification is in the child’s best interests.

As opposed to guardianship, which usually lasts much longer – often until the child reaches 18 years of age, or for the life of the guardian. Guardianship can sometimes be granted on a temporary or emergency basis.

A court will generally use the standard of “best interests of the child” to decide whether someone is the most suitable to support that child, whether through custody or guardianship.

Guardianship and custody are important approaches to consider when dealing with any large family issues, especially those involving children. There are a number of factors to consider here, including living arrangements, time spent with parents, parental availability, and individual decisions regarding personal finance. Prior to making the decision that is in the best interests of the child and family, it’s crucial to understand the procedures, duration, and basics of each.

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