Child Custody after Divorce in Bangladesh: Legal Child Custody after Divorce in Bangladesh: Laws and Guidelines
Child Custody after Divorce in Bangladesh and the Custody and guardianship of children proceedings in Bangladesh are governed by the Family Courts Ordinance, 1985, and the Guardians and Wards Act, (GWA) 1890. Guardianship and custody are two distinct issues. Even though the mother has custody of the minor children, the father is a natural guardian. In most cases, both parents have the right to child custody. However, if the marriage fails, the question of who will care for the child arises.
In addition to this guidance, check here to obtain a solid sense of how we work as your custody lawyer in Bangladesh and to grasp the general provisions of custody legislation.
Legal Child Custody in Bangladesh
Physical possession of a child implies custody (hizanat). A father is the legal and natural guardian of his children until they reach the age of majority, according to the Majority Act of 1875. Although a mother is not a natural guardian under Muslim Law, she has custody of her child until the age of seven years in the case of a male child and until puberty in the case of a female child. With their judgements, the upper courts established distinct precedents.
The power of the family court to decide a party’s entitlement to custody of a child is not confined to simply observation of the ‘age rule’; the supreme consideration is to be the idea of the minor child’s welfare and best interests; this is the essential essence of such determinations. Thus, variation from the strict application of the age limit is acceptable where the child’s welfare is concerned.
In the case of Zohra Begum v. Latif Ahmed Munwar (1965(17) DLR(WP) and PLD 1965 (Lah) (695), the court disregarded the Hanafi age-rule and granted custody of a small son to his mother. In another case, Muhammad Abu Bakar Siddiquev S.M.A. Bakar & others (38 DLR (AD) 1986), the court issued a judgement that contradicted Hanafi law’s conventional requirement that the mother’s care over a kid ends at the age of seven. The court’s first concern when passing judgment is the child’s overall wellbeing. As a result, deviating from the customary rule appears reasonable where the primary issue is the child’s welfare.
In the event of a divorce, custody of children is divided into two categories: legal and physical. It is not uncommon for legal and physical custody to be separated.
Child Custody Types in Bangladesh According to Existing Laws and Provisions
Child Custody in Bangladesh.
The parent who has legal custody of their children is accountable for making critical decisions in their children’s lives. Decisions on their school, religion, whether they require tuition or counseling, and so on.
Physical Possession
Physical custody dictates where the children will live on a regular basis. It might be shared by both parents or only one. It is critical how custody is ordered throughout the divorce because it can effect custody later.
Joint Child Custody in Bangladesh
When two people are linked as parents by a marriage contract, they normally make these decisions together. When they divorce, courts strive to maintain it that way as much as possible. In general, parents should share legal custody and continue to make decisions for their children together. To ensure that children have regular contact with both parents, judges strongly prefer to impose joint physical custody. This is referred regarded as dual legal custody. It can take many different shapes. Even if the parents have joint legal custody, one parent can be the primary caretaker. They may agree that having one parent have more day-to-day responsibilities is easier and more efficient.
In Bangladesh, there are provisions for exclusive custody and visitation.
When parents are unable to reach an agreement, joint legal custody can become extremely problematic. When parents disagree on every choice concerning their children, the most common option is for the judge to grant one parent sole legal custody of the children. The parent who is granted exclusive custody has complete authority over the children’s health, education, and welfare. In this case, the parent who has sole physical custody is the custodial parent and has the child the most of the time. The non-custodial parent, on the other hand, has the right to visitation or scheduled parenting time.
If one parent lives a long distance away, is abusive, or inattentive, a judge may rule in favor of sole legal custody. Furthermore, one parent is not active in the child’s daily life and does not spend time with the child.
Even after granting joint legal custody, the judge may appoint one parent as the tie-breaker if the parents cannot agree. This is similar to the parent having sole legal custody, but it encourages both parents to try to reach an agreement.
A court may grant custody to grandparents or other relatives or make the child a ward of the state if both parents are considered unfit to care for a youngster.
Unlawful or Forcible Child Custody in Bangladesh | TAHMIDUR RAHMAN REMURA WAHID LAW FIRM
The court may grant legal custody to either parent or to a single parent. If living with someone other than the parents is best for the child, the court may order it. When the court issues a custody order in favor of one parent and the other parent does not follow the ruling and attempts to retain custody of the kid forcefully, this is referred to as forceful child custody. Disobeying a court-ordered custody order and detaining the child forcibly might have a negative impact on the child.
As a natural guardian in Muslim personal law, a father is entitled to custody of his children when they reach the age of majority, and this right is available to him. When the father is living, the court has no choice but to designate someone else to have custody of the child. The sole exception is if the court determines that the father is unfit or unsuitable for the purpose. When the court determines that the father is unfit, custody of the kid is granted to the mother or any other person who is in the best interests of the child. If the unfit father attempts to keep the child with him after the court’s order is issued, it will be considered forcible child custody and a violation of the court’s order.
A divorced or widowed mother is also entitled to custody if she remains unmarried. However, in other cases, the mother may lose her claim to custody. The following are the reasons:
- Having custody of a kid if the divorced or widowed mother has remarried.
- If the mother leads an immoral life, is a terrible character, or is otherwise found guilty of conduct that is detrimental to the child’s welfare.
- If the mother is unable to provide adequate care for her kid.
If any of the aforementioned events occur, the mother loses her claim to custody. Even after that, retaining custody of her child will be considered coercive child custody, and she will be in violation of the court order.