Legal Child Custody After Divorce in Bangladesh : Laws and Principles
In Bangladesh, custody and guardianship of children related cases are dealt in the light of Family Courts Ordinance, 1985 and Guardians and Wards Act, (GWA) 1890. Guardianship and custody are two separate matters. Even when the custody of the minor children rests with their mother, the father is a natural guardian. Generally, both the parents have the right of the child custody. However, when the marriage breaks down, the question arises who will be the custodian of the child.
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Possession of a child physically means custody (hizanat). Under the Majority Act 1875, a father is the legal and natural guardian of the children until they attain the age of majority. Although a mother is not natural guardian under Muslim Law, she has a right of custody of her child up to the age of seven years in situation of a male child, and up to the age of puberty in situation of a female child. The higher courts developed various precedent in this connection with their decisions. The power of the family court to determine the entitlement of a party to the custody of a child is not limited to mere observance of the 'age rule', the supreme consideration is to be the concept of the welfare and best interest of the minor child, this is the main essence of such decisions. Thus, where the child’s welfare is concerned, deviation from the literal application of the age rule is permissible.
In Zohra Begum v. Latif Ahmed Munwar(1965(17) DLR(WP) and PLD 1965 (Lah) (695) case, the court disregarded the age-rule of Hanafi and the custody of minor son was given to his mother. In another case, Muhammad Abu Bakar Siddiquev S.M.A. Bakar & others (38 DLR (AD) 1986) a ruling was given by the court in contradiction of the traditional dictates of Hanafi law according to which the mother’s custody over a boy concludes at seven. While giving judgements, the prime concern of the court is the overall welfare of the child. Therefore, deviation from the traditional ruling would appear permissible where the main consideration should be the child’s welfare.
In situation of dissolution of marriage, custody of children is broken down into two elements: legal and physical. It’s not rare for legal and physical custody to be set up differently.
Types of Child Custody in Bangladesh as per the Existing Laws and Provisions
Legal Custody of Child in Bangladesh.
The parent who will have the legal custody of their children, he/she will be responsible for making important decisions of his/her children’s lives. Decisions regarding their school, religion, whether they need tuitions or counselling etc.
Physical custody determines where the children is going to reside on a regular basis. It can be shared by both parents or granted to just one. It is very important how custody is ordered at the time of the divorce as it can affect the custody later.
Joint Custody of Child in Bangladesh
When two persons are connected due to marriage contract as parents, they usually made these decisions together. When they get divorced, judges try to keep it that way if possible. Generally, the default preference is for parents to share legal custody and continue to make decisions together for their children. In order to guarantee that children have regular contact with both parents, the judges strongly give preference to order joint physical custody. This is known as joint legal custody. It can take many forms. One parent can be the primary caregiver even if the parents have joint legal custody. They may agree that it’s easier and more efficient for one parent to have greater day-to-day responsibility.
Sole Custody and Visitation provisions in Bangladesh
Joint legal custody can become very complicated for parents who aren’t able to agree on things. In cases, where parents fight over every decision related to their children, the most adopted solution is for the judge to give one parent sole legal custody of the children. The parent was is awarded with the sole custody has the sole right to make decisions about the children’s health, education, and welfare. In this scenario, the parent who is granted with the sole physical custody is the custodial parent and has the child most of the time. While the other parent is the non-custodial parent who gets the right of visitation or scheduled parenting time.
A judge might also give the decision in favor of sole legal custody, if one parent lives a great distance away, abusive or neglectful. Moreover, that one parent is not involved in the child’s day-to-day life, doesn’t spend time with the child.
Even after giving an order of joint legal custody judge can designate one parent as the tie-breaker in the event the parents can’t agree. This is not much different from the parent having sole legal custody, but it does encourage both parents in attempting to come to a resolution.
In a case where both parents are deemed unsuitable for taking care of a minor, a court may award custody to grandparents or other relatives, or make the child a ward of the state.
Unlawful or Forceful Custody of a Child in Bangladesh | FMA
Court may order lawful custody in favor of both parent or single parent. If living with someone else rather than the parents is better for a child, court may also order that. When a custody order is provided by the court, in favour of one parent and if the other parent does not follow the order and try to retain the custody of the child forcefully that can be addressed as forceful child custody. Disobeying custody order provided by court and keeping the child forcefully can affect adversely a child.
As a natural guardian under the Muslim personal law, a father is entitled to have the custody at the age of majority of the children, and this right is available to him. Where the father is alive, the court has no option to appoint any other person to have the custody of a child. The only exceptional circumstance is where the father is found by the court to be unfit or unsuitable for the purpose. However, when the court thinks the father is unfit, it gives the custody of the child to the mother or any other person as it is in the best interest of the child. After the order is delivered by the court, if the unfit father tries to retain the child with him, it will be treated as a forceful child custody and it is in breach of court’s order.
Additionally, a divorced of widowed mother is entitled to the custody if she remains unmarried. However, in certain situations the mother may lose her right to custody. The reasons are as follows:
1. Having custody of a child if the divorced or the widowed mother has remarried another husband.
2. If the mother leads an immoral life or is a person bad character or is otherwise found guilty of such conduct which is contrary the welfare of the child.
3. If the mother is unable to take proper care of her child.
If any of the above circumstances occurred, the mother loses her right to custody. Even after that, if she retains the custody of her child it will amount to a forceful child custody and she will be in breach of court order.