Who gets custody of children after divorce in Pakistan?

Divorce Procedures in Pakistan are one of the most sensitive and significant issues arising after a divorce. In Pakistan, custody of children is governed by the Guardians and Wards Act, 1890, which focuses on the welfare of the child as the paramount consideration. The law aims to ensure that the child’s best interests are protected, regardless of the personal disputes between the parents.

Types of Custody

There are two main types of custody in Pakistani law:

1. Legal Custody (Guardianship)

• Refers to the legal authority to make decisions about the child’s education, health, and upbringing.

• Usually granted to the father, unless he is deemed unfit.

2. Physical Custody

• Refers to the child’s day-to-day care and living arrangements.

• Often granted to the mother, especially for younger children.

Custody Rules Based on Child’s Age and Gender

The courts often follow certain general principles based on Islamic and cultural traditions:

For Sons:

• Mothers typically retain custody until the son reaches the age of seven.

• After that, custody may shift to the father, unless the court deems otherwise.

For Daughters:

• Mothers usually retain custody until the daughter reaches puberty or maturity.

• In some cases, custody can extend longer based on the child’s needs.

However, these age limits are not absolute. Courts prioritize the child’s welfare over rigid age rules. If a father is absent, abusive, or financially unstable, the court may allow the mother to retain custody beyond the usual age limits.

Welfare of the Child: The Supreme Criterion

Under Section 17 of the Guardians and Wards Act, the "welfare of the minor" is the central consideration in all custody decisions. Welfare includes:

• Emotional and psychological well-being.

• Educational needs.

• Financial stability of the custodian.

• Moral and religious upbringing.

• The child's own preference (if the child is mature enough).

Role of Family Courts

The Family Courts Act, 1964 gives exclusive jurisdiction to Family Courts to decide custody matters. The courts have a flexible approach, focusing on reconciliation, the child’s best interest, and quick resolution.

Key Features of Custody Proceedings:

• Either parent can file for custody.

• The court may appoint a guardian ad litem to represent the child’s interest.

• Custody arrangements can be modified later if circumstances change.

Visitation Rights

The non-custodial parent (usually the father if the mother has custody) is entitled to visitation rights.

Visitation Orders Include:

• Weekly or monthly visits.

• Overnight stays or weekend visits.

• Vacation access during holidays.

If a parent violates visitation orders or restricts access, the other party may seek court enforcement.

Custody in Case of Khula or Judicial Divorce

When a woman obtains divorce through Khula or other judicial means, she does not lose her right to custody. The court evaluates the situation based on the same welfare criteria.

Common Misconceptions:

• Myth: Mothers automatically lose custody after Khula.

  • Reality: Courts often allow mothers to retain custody, especially for minors.

• Myth: Fathers always get custody after divorce.

  • Reality: Custody is awarded based on the child’s welfare, not gender.

Financial Responsibility and Maintenance

The parent who does not have custody (usually the father) is still legally obligated to provide financial support.

Maintenance Includes:

• Education expenses.

• Medical costs.

• Clothing and shelter.

• General daily living expenses.

Failure to pay child maintenance can lead to legal action and enforcement by the court.

Modification of Custody Orders

Custody orders are not permanent and can be revisited if the circumstances change. For example:

• If the custodial parent remarries.

• If the child’s welfare is compromised.

• If the child expresses a desire to live with the other parent.

The court can review the petition and revise custody or visitation rights accordingly.

Custody for Non-Muslim Families

Divorce Procedures in Lahore For Christians, Hindus, and other non-Muslim communities in Pakistan, custody laws are also guided by the Guardians and Wards Act, 1890. Courts apply the same welfare-focused approach regardless of religion.

Conclusion

In Pakistan, child custody after divorce is determined primarily by what is in the best interest of the child. While mothers are often granted physical custody, especially of younger children, legal guardianship usually lies with the father. The courts consider various factors, including emotional, financial, educational, and religious needs, to make custody decisions. The esteemed team of expert lawyers at Khadija Law Associates excels in providing exceptional legal services to clients dealing with family disputes. With proper legal guidance and court procedures, custody arrangements can be tailored to ensure the child’s well-being is fully protected. The legal system provides both parents with the opportunity to seek custody or visitation and to ensure their responsibilities toward their children are fulfilled after divorce.