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  • leadindia836
    • Feb 2, 2023
    • 3 min read

Can Grandfather File Writ For Child Custody After Death Of Son After Divorce

The law authorizes giving grandparents’ custody of a child under specific circumstances. The court takes into account a number of factors when deciding who gets custody of the child. The child's welfare comes well before any one party's legal rights. If the child is old enough to choose who he wants to live with, the court takes that into account when determining final custody.

Tests Determining Custodial Rights

The court must consider the relevant Acid test while determining the custodial rights. They are:

  • The child's maintenance, education, and health are important considerations for deciding who will be given custody of the child.

  • Priority is given to the child's natural parents for custody. However, custody might be given to the grandparents if they do not favour the well-being of the child.

  • The welfare of the child is given top priority and cannot be determined solely on the basis of financial stability.

  • The Court must take into account the child's physical, moral, and ethical well-being.

  • The parent's love for their children cannot serve as a justification for granting them custody.

  • When determining custody, the parent's physical and mental health, as well as their employment, is taken into account. Grandparents will be given custody in situations where both parents are working professionals and are unable to provide for the child's needs or are dead.

  • When determining custody, the child's preference for who they wish to live with is of the utmost importance.

  • One of the matters a court of justice must consider is the "character" of the potential guardian.

  • A court is not constrained by legislation, demanding evidence standards or procedure, or established precedents when deciding custody issues. When selecting a capable guardian for a minor, the child's welfare and well-being must come first.

  • Custody disputes cannot be decided solely or primarily on paperwork, oral evidence, or precedents. It is just the human touch that plays a vital role in a case of child custody for their well-being.


Role of the Judiciary

  • Recently, the Supreme Court ruled that when granted custody of a child after the death of his parents, paternal grandparents must be given preference since they can better care for the child than some other relatives who are also trying for custody.

  • According to the bench of Justice M R Shah and Justice Aniruddha Bose, grandparents are more emotionally bonded to their grandchildren than to their offspring, and they are better able to care for the child despite their older age.

  • In Jai Prakash Khadria v. Shyan Sunder Agarwalla and Anr (2000) casethe child's paternal grandparents were the respondent and the appellant, who was also the child's maternal grandfather. Because the child's school was close to the grandparents' home, the court granted the paternal grandparents custody of the child. The paternal grandfather left the child his entire property because he was too connected to him. The court further argued that the paternal grandparents should be given custody of the child because the maternal grandfather was residing alone and had no one to look after the child.

How Can Grandfather File Writ for Child Custody after Death of Son after Divorce

Hiring a Lawyer - If the paternal grandparents want to submit a writ petition alleging that the child's custody has been forcibly taken away by the child's mother, who is not capable of maintaining the child, finding and hiring a lawyer must be their top priority in a dispute of child custody.

They concentrate on the Child's Welfare- The lawyers assist in supplying the court with pertinent data and information while keeping the child's best interests in mind.

They are able to show that the custody is illegal- They can demonstrate that the custody is unwarranted and unlawful by demonstrating that a child is being held in forcible custody. Then, the child's unlawful detention can only be stopped using the habeas corpus petition.

After a divorce or death of the parents, you will require legal representation to submit a writ petition for custody of your grandchild. Child Custody Lawyers In Mumbai can be hired if you want to learn more about the process for making a writ petition for the custody of your grandchild in Mumbai.

Family Lawyers In Mumbai can be hired if you want to learn more about the process for bringing a writ petition for the custody of your grandchild in Mumbai.

Similarly, Divorce Lawyer in Delhi who specialize in divorce and child custody cases and are familiar with the process for submitting a writ petition for the custody of your grandchild can be assigned to handle the matter in Delhi.

You can talk to a lawyer from Lead India. At Lead India, you can ask questions to experts online for free and receive free legal advice online.

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