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Who Decides a Child’s Schooling and Medical Care After Parents Separate?

Who Decides a Child’s Schooling and Medical Care After Parents Separate?

Apart from the custody issue in cases of separation, another practical question that comes to the fore is who makes decisions about the education of the child, who will treat the child, what treatment he will receive and so forth.

A simplistic answer is that in any situation where the parents have separated, there is no rule of automatic decision-making rights for either parent. In fact, the parents may come to an agreement about these issues between themselves. If an agreement cannot be reached then the relevant court will be able to make orders regarding custody, guardianship and access of the children, having regard to the welfare and best interests of the child. Orders regarding divorce, custody, guardianship or any other matter already made by the courts need to be complied with.

Legislation

In India, disputes relating to child-custody and guardianship are governed by legislative and personal laws according to the family.

The major procedural law here is the Guardians and Wards Act, 1890 (GWA). Section 7 of GWA allows the court to appoint or declare a guardian wherever it considers it to be necessary for the welfare of the minor. In addition to section 17 which mandates the court to take into account the welfare of the child and gives the court the power to consider the intelligent preference of the child when the child is sufficiently mature enough during consideration of guardianship.

As far as Hindus are concerned, the Hindu Minority and Guardianship Act, 1956 (HMGA) also comes into play. Section 6 enumerates the natural guardians and states that custody of the Hindu child below the age of five will be with the mother in the ordinary course of things. However, this does not amount to absolute custody. Section 13 specifically mandates that the welfare of the minor is the paramount consideration for appointment or declaration of guardianship by the court.

It has been reiterated time and again by the Supreme Court that neither statutory status nor economic position of a parent alone can determine a custody battle. In Gaurav Nagpal v. Sumedha Nagpal and Nil Ratan Kundu v. Abhijit Kundu, the Supreme Court highlighted the fact that welfare of the child is the main consideration.

Courts will thus be allowed to take into account considerations such as the health, education, emotional and intellectual development, general wellbeing, environment, and the relationship of the child with each parent.

It would mean that “natural guardian” and “custodial parent” do not have to be the same term. It could be that a person is a natural guardian but that the child usually resides with the other parent.

So, who decides on schooling?

In the ideal scenario, both parents must be part of the process when it comes to educational decisions especially if both of them continue to play a role in the upbringing of the child.

Such decisions can include the following:

  • selecting the school attended by the child or even changing it,
  • decisions related to relocating the child’s place of residency especially if that affects schooling;
  • deciding which educational course the child will pursue,
  • dealing with any major educational problems that might arise;
  • authorizing necessary documentation when parental consent is required;

and

  • special educational decisions.

There is no general rule of automatic separation entailing sole authority of every educational decision making to the parent with whom the child stays.

If the parents have a written agreement on how the decision making responsibility would work, this agreement acquires special significance. In case of disputes, the parent can refer the matter to the concerned court seeking directions or alteration of the agreement. This is not an exercise limited to deciding who has stronger claim. It involves deciding what kind of arrangement is in line with the welfare of the child. Factors like consistency of the education, proximity, continuity, the child’s current milieu and the capacity of each parent to support education of the child may thus come into the picture.

The Right of Children to Free and Compulsory Education Act, 2009 provides for free and compulsory education for the children of statutory age six to fourteen years. It further deals with issues of admission and transfer of children. These educational rights run parallel with and do not supplant the laws on parental custody and guardianship.

Medical Care Decision Making – Who decides? Medical decisions can be particularly sensitive because delay may directly affect a child’s health.

For day-to-day health-related issues, it would be ideal that parents discuss and come to an agreement on such issues as doctors, tests, medications, inoculations and the treatment itself. In the case of any major treatment when there are divergent opinions in the medical community, the issue may become a part of the custody and guardianship battle.

Once again, it is not the case that the parent who has the physical custody has absolute control over all the decisions regarding treatment.

The position will depend on:

  1. any existing order for custody and guardianship;
  2. the decision-making rights given to a particular parent;
  3. the nature and urgency of the treatment;
  4. the age of the child;
  5. the medical evidence available and
  6. what arrangement would be most beneficial for the child.

In the event that the dispute between parents is serious and cannot be sorted out, directions can be sought from the court. But in an emergency situation, there is no reason why medical treatment should be delayed just because the parents disagree about who is responsible.

Which court should a parent go to?

Where a Family Court has jurisdiction, Section 7 of the Family Courts Act, 1984 specifically includes proceedings relating to guardianship of the person, custody of, or access to a minor. The other source of the basic jurisdictional principles is the Guardians and Wards Act. According to Section 9, an application for the guardianship of the person of a minor may normally be preferred in the District Court having jurisdiction where the minor ordinarily resides.

In some cases, the appropriate court will depend on several factors, such as ordinary residence of the child, any prior matrimonial or custody proceedings, the presence of any Family Court nearby and the past order(s).

This is why the parents should not have any assumptions that they can file the custody application in any court of their choice.

Who may file the application?

Any parent applying for custody, guardianship, access or direction as to welfare of the child may petition to the competent court. Other persons who are entitled to make applications under GWA are covered in Section 8. They include those who claim or desire to become guardians, relative or friends of the minor and certain authorities like the Collector. In usual separation matters, the application would be made by one or more of the parents. A parent may seek, depending on the circumstances:

  • custody of the child;
  • continued or expanded visitation/access;
  • interim custody;
  • directions concerning the child’s education;
  • directions concerning healthcare;
  • protection against removal of the child from the jurisdiction;
  • modification of an existing custody arrangement; or
  • appointment or declaration of guardianship.

The relief sought should be tailored to the actual problem rather than simply framed as a general demand for “custody.”

What documents and evidence should be kept?

A parent considering legal proceedings should preserve documents that show the child’s existing circumstances and the practical effect of the proposed arrangement.

Useful documents may include:

Identity and relationship documents

  • child’s birth certificate;
  • parents’ identity documents;
  • marriage certificate, where relevant;
  • adoption or guardianship documents, if applicable; and
  • previous court orders or settlement agreements.

Education records

  • school admission records;
  • report cards and attendance records;
  • fee receipts;
  • correspondence with teachers or the school;
  • records of special educational needs;
  • evidence concerning the child’s current school and proposed alternative school; and
  • communications showing attempts by either parent to participate in educational decisions.

Medical records

  • prescriptions;
  • medical reports;
  • diagnostic reports;
  • vaccination records;
  • treatment plans;
  • hospital records;
  • medical bills; and
  • communications concerning consent or disagreement over treatment.

Evidence concerning the child’s welfare

For example, depending on the nature of the dispute, documents relating to the living conditions of the child, his/her routines, schooling, caregivers, and involvement of both parents in the child’s affairs will have relevance.

It should always be about obtaining relevant evidence concerning the best interest of the child without collecting unnecessary materials to discredit the other parent.

What is the usual court process?

It may differ depending on the nature of the case and courts, but the typical custody or guardianship case involves the following processes:

  1. Applying for the order

The parent or other qualified applicant goes to the concerned court and states the relief being asked for as well as the circumstances necessitating such a request.

Section 10 of the GWA gives information that should be present in a guardianship application including the details of the minor; his/her normal residence; the existing custodian; relatives of the minor; previous guardianship application and grounds for making the application. 2. Giving notice to the other party

The other parent is normally given time to react to the application.

  1. Temporary arrangements

Where urgent arrangements have to be made, the court can issue the necessary interim directions. The court can under section 12 of GWA issue production of the child order as well as make custody and protection orders where necessary. 4. Attempt at conciliation/settlement

Family Courts are supposed to take steps to facilitate the process of settling cases where this is feasible and appropriate. It may involve attempts at reaching a settlement of the differences in terms of parental responsibility.

  1. Production of evidence

The court can consider the evidence through examination of documents, affidavits, testimony, and other relevant information. Relevant circumstances of the child as well as that of the parents may be considered in their entirety.

  1. Views of the child

Where the child is mature enough to have an intelligent preference regarding the arrangements for his/her upbringing, the court may take this preference into consideration. It is significant, but it doesn’t automatically give the child the right to make decisions of law.

Court has stressed custody disputes should be seen from the angle of best interest of the child and not only from the point of view of parent’s legal rights.

The court can award custody, guardianship, access or any other arrangement that may be necessary in light of the circumstances of the child. Such an arrangement can also be re-examined if the circumstances have materially changed. What of the child below five years of age?

Under the Hindu Minority and Guardianship Act, for example, Section 6(a) of the HMGA provides that custody of a minor below five years shall normally be with the mother.

However, “normally” does not translate into “automatically and without exception.” The welfare of the child is still the most important factor in custody litigation before the courts.

In Roxann Sharma v. Arun Sharma, the Supreme Court was faced with considering the statutory preference of maternal custody of a Hindu child below five and the welfare principle at the same time.

Therefore, this principle should not be boiled down into “a child below five years always stays with the mother.” This is an oversimplification of the principle.

Can one parent automatically get custody because he/she has more money?

No.

Stability of finances is one issue but that should not be the only factor. Custody is not a battle of the rich. The Supreme Court has particularly emphasized the fact that the child’s best interest should be taken into account and not the superiority of the economic condition of either of the parents.

It does not necessarily mean that the parent with superior financial resources has a greater custody right.

Is separation going to deprive one of the parents from the guardianship?

Certainly not.

Guardianship, custody and visiting rights are all different from each other.

The parent may hold physical custody while both the parents keep their duties towards the child. Courts can design parenting plans in such a way that the child is able to keep in touch with both his parents, keeping in view the best interest and well-being of the child. Supreme Court has always given due weightage to the importance of relationship between the child and both the parents during custody and visiting decisions. However, staying in touch with both parents is not a must. There can be situations when courts find some credible concerns about violence, abuse, coercion or negligence etc.

Common misconceptions

“The father is automatically the guardian, so he decides everything.”

Not quite.

Regarding Hindu families, the rules concerning natural guardianship under Section 6 of the HMGA have been stated in the Act, yet it functions with regard to the welfare principle. The Supreme Court ruling in Githa Harihar v. Reserve Bank of India has also made it clear that there cannot be a rigid construction of the statutory mention of the father and there are situations when the mother acts as natural guardian in the presence of the father.

“Mother automatically gets the child.”

It is a sweeping generalisation.

Statutory ordinary custody has been provided for Hindu children below five, yet the issue is welfare-oriented. The court considers the circumstances of each particular child.

“Custodial parent may change the school without informing the other parent.”

It is not necessary.

It depends on the custody agreement, parenting agreement and circumstances.

“A mature child decides in his/her favour.”

No.

Preference of the child of the proper age is one of the aspects to consider, but the court itself determines the welfare of the child.

“Richer parent gets the custody.”

There is no such rule.

Financial capacity can be one factor among many, but welfare is broader than money.

“It is once the custody order is made that it cannot be varied.”

This is not always true.

There are many situations in which a child custody order could be modified due to changed circumstances. These changes include the age of the child, his schooling, health conditions, relocation issues, safety concerns, and others.

Informational content, not legal advice

This article contains general information about Indian law and is not a substitute for legal advice.

Child-custody and guardianship issues are highly fact-specific in nature. The relevant personal law of the case, the age of the child, whether the parents are separated or married, the habitual place of residence of the child, any earlier court order, any allegation of neglect/abuse, the schooling and medical situation of the child, etc., could all impact the law in the specific case.

It follows that a statement of law in an article cannot be considered a prediction of the likely outcome in a particular case.

When should you consult a lawyer or seek emergency assistance?

Legal advice needs to be taken immediately where the parents do not have an agreement on an important decision that affects the education or health care of the child, where one of the parents wants to move away with the child, where there is violation of a prior court order of custody of the child or where there are any cases of abuse, neglect, domestic violence or wrongful taking of the child by one of the parents.

In case of immediate danger to the child, legal process must not come in the way of emergency action. The Indian child helpline 1098 is run by Mission Vatsalya and works as part of the national emergency services. In case of an emergency requiring police, medical, fire service or immediate danger to life, the pan-India emergency number is 112.

Children and women are also specifically included among those who are eligible for free legal aid under the Legal Services Authorities Act scheme. The legal aid helpline of NALSA is 15100. The central principle remains simple: after parents separate, the legal question is not merely “Which parent has the stronger claim?” It is “What arrangement best protects the child’s welfare, stability, education, health and overall development?”

Bibliography and References

I. Legislation

  1. Constitution of India, arts. 21, 21A and 39(f).
  2. Family Courts Act, 1984, Act No. 66 of 1984, § 7.
  3. Guardians and Wards Act, 1890, Act No. 8 of 1890, §§ 7–12, 17.
  4. Hindu Minority and Guardianship Act, 1956, Act No. 32 of 1956, §§ 2, 6, 13.
  5. Legal Services Authorities Act, 1987, Act No. 39 of 1987.
  6. Right of Children to Free and Compulsory Education Act, 2009, Act No. 35 of 2009, §§ 3, 5, 10.

II. Judicial Precedents

  1. Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 (Supreme Court of India).
  2. Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228 (Supreme Court of India).
  3. Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 (Supreme Court of India).
  4. Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318 (Supreme Court of India).

III. Official Government and Institutional Resources

  1. India Code, Legislative Department, Ministry of Law and Justice, Government of India, https://www.indiacode.nic.in/.
  2. Ministry of Women and Child Development, Government of India, Child Helpline 1098, https://wcd.gov.in/offerings/child-helpline-1098.
  3. Ministry of Women and Child Development, Government of India, Mission Vatsalya, https://www.wcd.gov.in/child/mission_vatsalya.
  4. National Legal Services Authority, Promoting Inclusive Legal System, https://nalsa.gov.in/promoting-inclusive-legal-system/.
  5. Government of India, National Helpline Directory, https://www.india.gov.in/directory/helpline.

IV. Legal Research Resources

  1. Supreme Court of India, Official Website, https://www.sci.gov.in/.
  2. eCourts Services, Government of India, https://ecourts.gov.in/.
  3. Indian Kanoon, Searchable Case-Law Database, https://indiankanoon.org/.
Mansi Mishra
Author: Mansi Mishra

Worked with Little Akshar Pre-Primary School Undergraduate law student at GGSIPU, Delhi (BBA LLB)