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Child custody is a legal term concerning guardianship, which describes the legal and practical relationship between a parent/guardian and a child in that person’s care. Child custody consists of legal custody, which is the right to make decisions about the child, and physical custody, which is the right and duty to provide housing, shelter, care, and welfare for the child.
A person who has custody of a minor is responsible for looking after the minor in regards to their health, education, and supporting them in all respects. In every matter related to a minor, the court will prioritize the child's welfare and interests over the rights of the parents.
In law, a minor is a person under the age of majority, who is dependent upon an adult to safeguard their person and property, whereas a guardian is a person who is legally responsible for taking care of a minor, as they have been granted custody by an authorized court.
The Guardianship/child custody laws in Pakistan are defined in The Guardians and Wards Act of 1890, a pre-partition legislation, which is still adopted with amendments made over time. The Act established the Guardian and Wards department in each province, which handles matters related to minors and guardians. Child custody in Pakistan refers to the parent's right to raise and care for the child, covering the responsibility to make decisions regarding the child’s well-being. The primary responsibility of the parent is to make all decisions, including the child’s basic needs of health, education, religious upbringing, and welfare.
Child custody becomes a major issue after every divorce in Pakistan, prompting both parents to learn about child custody laws. Each parent seeks every possible legal provision to gain custody of their child, even though being a single parent is a difficult responsibility.
Sec. 17 and 25 of the Guardians and Wards Act, 1890, encircle the rights regarding custody of minors by their parents which rights are usually termed as “Hizanat” and “Willayat”. The word “Hizanat” or “Hidanat” (as pronounced by the Asians and the Arabs respectively) is used for custody of minors by mother and the term “Willayat” is used for custody of minors by father. Word “Hizanat” in its literal sense means “upbringing”. Therefore, it covers the concept of “Wallayat” too. It is also important to point out that in legal terminology the word “Hizanat” or “Willayat” cannot be limited to the extent of mother or father of minors because the duty of upbringing can be performed by any person who has legal right to do so such as maternal or paternal aunts or grandmother. On account of this reason most of the text-books particularly written in Arabic titled the relevant chapter with the word “Al Hizanat”
The Guardian and Wards department manages all matters related to minors in Pakistan, including guardianship and child custody hearings. If you are considering divorce or separation from your spouse, you must file a divorce petition through your local district court. If there are children involved, you will likely need to go through a guardianship/child custody hearing at some point during or after your divorce proceedings.
The judge presiding over your case will determine who should have primary care of the children, taking into account their best interests, including:
The judge presiding over your case will determine who should have primary care of the children, taking into account their best interests, including:
Child welfare is the primary factor considered by the court when granting custodial rights to a parent. Therefore, aspects such as the parent’s financial stability, character, misconduct, and capacity are given significant importance.
The courts may grant physical custody to one parent, but an increasing number of cases now involve shared legal responsibility and guardianship. Thus, custodial laws in Pakistan can be classified as physical and legal. According to the judicial system, the legal right over minors means that the parent is solely responsible for the welfare of the child.
When handling such matters, the court also considers the preference of the minor, if the child is old enough to form an intelligent preference.
In Pakistani law, the custody of a minor is generally given to the mother, a right referred to as "Hizanat." However, after the age of seven, the mother's right over the custody of a son ends, though this is not an absolute right and is made in the best interest of the child. Girls, on the other hand, remain under the custody of their mother until they attain puberty.
An important aspect of this law is that the conduct of the mother is taken into account. If her conduct is found to be "objectionable," she may lose custody rights. In such cases, the father may be granted custody by the court. If both parents are absent or unable to care for the child, the grandparents may be given custody of the child.
The dispute over child custody or guardianship in Pakistan often arises when a husband and wife separate or divorce. Following a divorce or khula, issues regarding child custody can become a major concern. The child custody laws of Pakistan and the Guardian Court play a critical role in resolving these disputes. Neither parent wants to be separated from their child due to their love and affection for the child.
One of the major disputes during child custody cases in Pakistan is the issue of visitation rights. Traditionally, after a divorce or khula, the husband and wife may become adversaries, and one of them (typically the custodial parent) may refuse to grant visitation rights to the other parent. However, the non-custodial parent is entitled to visitation rights. The Guardian Court of Pakistan plays an essential role in ensuring that visitation rights are granted and that balance is maintained between both parents.
In child custody and guardianship cases, it is crucial to hire a qualified child custody lawyer. At Kakakhel Law Associates, we have a dedicated team of child custody lawyers in Islamabad and Peshawar who can provide the best legal advice regarding child custody, guardianship, and visitation rights. It is important to note that, contrary to popular belief, custody of a son does not automatically transfer to the father when a boy reaches the age of seven. Any parent who wants custody of a child but cannot reach a settlement with the other parent must seek a formal decision from the court. We can guide you through the legal process and ensure that your rights, as well as the best interests of your child, are protected.