When a family is separated, it changes everything, but never takes away a child’s sense of safety. The issue of child custody and guardianship is one of the most emotional legal decisions that a parent may be involved in. It’s not only a fight for a legal outcome, it’s a fight to remain in your child’s life.
You’re probably like many parents who are in this situation and wondering the same thing. How is my child’s place of residence determined? What rights do I have as a member of the tribe? What happens if I die, can the grandparents take over? This guide will help answer those questions and get you on the right foot.
Custody vs Guardianship: Two Different Things
Many parents will say one or the other, but in Pakistan these words have different meanings.
- Custody (Hizanat) refers to the day-to-day physical care of a child. It includes details of where they live, who brings them up, and who looks after them on a day to day basis.
- Guardianship is broader. A guardian has authority to make significant choices regarding the education, property, health and welfare of a child, even when the child does not reside with the guardian.
A mother might have custody of a young child and the father have legal custody, for instance. This is important to know as it affects what you are requesting in your court.
The Legal Framework Behind Child Custody and Guardianship in Pakistan
Generally custody and guardianship issues in Pakistan are regulated by Guardians and Wards Act, 1890. This law allows family courts to determine who is to raise a minor, and who is to control the affairs of a minor. The statute has to do with custody disputes involving children, and gives the courts very broad discretion in making these decisions, depending on the particular circumstances of each family. The complete text of the Guardians and Wards Act, 1890 can be consulted.
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It is a law which is also followed by family courts in Karachi in keeping with the Islamic concept of guardianship and the personal law of the parties. No two custody rulings are alike; each case is handled individually.
What the Courts Do Consider.
Judges don’t decide custody and guardianship cases based on who “deserves” the child more. Their mission is based on one principle: the welfare of the minor. That choice is influenced by a number of factors:
- Child’s age – If there is no strong reason to the contrary, a young child is more likely to be placed with the mother.
- Sustainable family income – Courts determine the ability to maintain a stable and means-tested household.
- Moral, character – Lifestyle and conduct of the parent does have an impact here.
- Emotional bond – Judges look at the relationship that the child already has with each parent.
- The courts do not take a child’s education off hold.
- The child’s choice – This is not always the sole determining factor as older children may be consulted about their wishes.
There is no one sure thing for the outcome. In deciding custody and guardianship matters, courts take all factors into account.
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Rights of Mothers and Fathers
In the principle of Hizanat, mothers have a strong claim to custody of younger children generally, in the early years. However, this right isn’t absolute. For example, a mother’s remarriage may impact her custody status, depending on the circumstances.
However, fathers usually have guardianship rights even if they do not have physical custody. Even if the child is raised by the mother, his father can still have a legal opinion on things such as school, travel or large life decisions.
The status of “winner” is not given to either of the parents. In all ways, the real client of the court is the child.
Visitation and Access Rights
Not losing primary custody doesn’t mean you lose your relationship with your child. Visitation or access rights are routinely awarded in the family courts to the non-custodial parent. This can include:
- Weekend / holiday visits arranged in advance.
- Supervised/Unsupervised Meetings (as appropriate)
- Contact by phone or video during visits
If there is no reason to think that any reasonable benefit will come from a contact, the courts generally rule against it, unless there is good reason to believe it would be harmful to the child.
What Happens When a Parent Wants to Relocate
Relocation cases are another type of custody and guardianship case. The other parent can oppose such a move to the courts if a custodial parent wishes to relocate to another city or country (outside Pakistan). Judges consider the reasons for the move, and whether it is likely to upset the child’s stability and bond with the other parent. The cases are legally complex and have a significant impact on the future of the child.
Involving Grandparents and Relatives
In some instances, neither parent is able to take care of a child. When this happens, grandparents or other close relatives have the option to request guardianship. The courts will take into account the child’s relationship with that relative, their ability to care for the child and, most important of all, the child’s wellbeing in general. This reflects the international standards of child protection where organisations like UNICEF Pakistan point out that the best interests of the child should consistently be considered when making decisions that impact children.
Why You Need Experienced Legal Support
The process of child custody and guardianship cases follows a rigorous procedure, with specific documentation and evidence rules in place in family courts. Even the smallest of errors in filing and/or presenting your case could cost you your time, or your case’s outcome.
That’s where having the assistance of the Best Family Lawyers can help. A seasoned lawyer doesn’t just deal with paperwork; he constructs a case around what truly makes a difference in court and prepares you for all aspects of the process.
The Role Muzamil Hassan & Co. Play in Supporting Parents in Custody Cases
Family cases are not just ordinary papers at Muzamil Hassan & Co. Advocate Muzamil Hassan and his team know that the fight over custody can impact a parent’s most impactful relationship, with their child.
The firm is one of the best family law firms in Karachi and has acted for mothers, fathers and guardians in custody issues, guardianship and visitation cases in the family courts of Karachi. The strategy here is straightforward: listen, explain, and develop a strategy whereby you are being truthful about what you can do and protecting your child’s wellbeing and your parental rights.
A recurring comment from clients about our Family Lawyers is that they are responsive, thorough and really care about their results; and at Muzamil Hassan & Co., we really do care about your family’s results.
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Final Thoughts
Custody and guardianship battles are difficult for everyone involved in the dispute, particularly the child at the heart of the dispute. The right legal counsel not only secures your victory, it also helps to preserve your relationship with your child for years to come.