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Child Custody, Guardianship and Adoption Lawyers

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Lawyers in Pakistan
Lawyers in Pakistan

Child Custody, Guardianship and Adoption Lawyers

Child Custody and Guardianship Lawyers in Pakistan

Our Child Custody and Guardianship Lawyers have tried here to answer some of your basic questions relating to this subject. Child Custody Rules/Laws Child custody is a burning issue for every divorce in Pakistan, which makes both parents know about child custody laws.

Each parent seeks every kind of legal provision to gain custody of their child even though being a single parent is tough. Child welfare is the key factor taken into consideration by the court while deciding a child custody and guardianship matter in Pakistan.

Child Custody and Guardianship Lawyers in Pakistan

What is the Difference Between Child Custody and Child Guardianship?

There is a very clear legal difference between Child Custody and Child Guardianship though both sound similar. These terms are usually used when it is a need to describe a legal relationship between a child and an adult. These are determined by the Family and Guardianship courts that who is the Child’s custodian and who is a Guardian. Custody can only be provided to a biological parent of a child while Guardianship is given to any non-biological parent with the right to care for a minor.

What is the meaning of “Ward” in the Guardians and Wards Act 1890?

When an adult is not able to care for itself then a Guardian Judge may appoint another Adult his/her “Ward”. It can be due to several reasons such as an unmarried girl, incapacitation, or a disability.

Difference Between Child Custody and Child Guardianship

Who Can Be Given Custody Of A Child?

In Pakistan, the concept of “Welfare of the minor” is the paramount consideration in the court in such matters. Well, what is and how to describe “Welfare of the minor” as it a very broad term and different people may come up with different definitions. However, not fixed but there are certain rules that are counted when talking about it in the Guardian Courts. These rules are the age of the minor, financial and social backgrounds of the parents. The moral conduct of parents in general etc.

The distinction between custody and guardianship and the respective rights

To understand the obligations of a custodian and a guardian under the Guardians and Wards Act 1890, it is important to understand the Distinction between custody and guardianship and the respective rights, especially where one parent has custody of the child and the other is the guardian. The term ‘custody’ is not defined in the Guardians and Wards Act 1890.

The term ‘guardian’ has been defined in section 4(2) of the Act and seems to include the concept of custody unless a guardian court awards custody of a child exclusively to a party/parent who is not the guardian of the minor. It was held in Mst. Atia Waris vs. Sultan Ahmed Khan [PLD 1959 Lahore 205] that custody means actual custody and not constructive custody. However, custody was defined as actual or constructive possession for purposes of protection in Jumna Khan vs. Mst. Gull Ferosha [PLD 1972 Peshawar 1]. And in [PLD 1988 Karachi 252] custody was referred to as the right to the upbringing of a minor child by the mother or someone legally entitled to it. It was held in Bushra Asghar v. Dr. Rehmat Ali and 3 others [2012 MLD 1755] that guardianship entails the concept of taking care of the minor even in situations when the guardian does not have “domain over the corpus of [the] child”.

The concept of welfare of child

Another most discussed point during the child custody and guardianship case is “welfare of the child/minor”. It is viewed differently in a claim for child custody and from a different perspective in claim for guardianship.

The welfare of a minor in a claim for custody

A Guardian court is the right forum where a whole set of factors are to be considered to determine wherein a child’s welfare lies. The outcome can differ in different cases based on the facts discussed in the guardian court.

The welfare of minor in a claim for Guardianship

When a claim is submitted for guardianship in the competent court, the law itself assumes, when Sections 7, 17, 19, and 41 are read together, that the welfare of the child is best served when his/her natural father remains the guardian, unless he is found unfit to be the guardian.

What happens in the event of separation of the parents?

Traditionally, our child custody and guardianship lawyers see in the majority of custody cases that in the event of separation of the parents, custody of the suckling child is handed over to the mother. Whereas the father is bestowed with the responsibility of the minor to act as guardian for the person and property of the minor. [see PLD 2009 SC 751].

However, this everyday rule is not carved in stone. According to the Spirit of the Guardians and Wards act 1890, “welfare of the minor” still remains the paramount consideration hence can be a different outcome in the court.