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Child Custody

  • Guardians and Wards Act 1890
  • Child Marriage Restraint Act 1929
  • Muslim Family Law Ordinance 1961
  • (West Pakistan) Muslim Personal Law 1962
  • (West Pakistan) Family Courts Act 1964
  • Law of Evidence (Qanun-e-Shahadat) Order 1984
 

The District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian; or where a guardian has been appointed or declared in pursuance of any such application the Court may appointed or declared the guardian or deemed to have appointed or declared the guardian; in any matter relating to the person of the ward, the District Court having jurisdiction in the place where the ward for the time being ordinarily resides; or in respect of any proceeding transferred under Section 4-A, the Court of the officer to whom such proceeding has been transferred.

   

Jurisdiction

The application for guardianship should be made under the provisions of the GWA (Guardians and Wards Act 1890)(No VIII) to the court having jurisdiction in the place where the minor ordinarily resides. If the application is with respect to the guardianship of the property of the minor, then it may be made either to the court having jurisdiction in the place where the minor ordinarily resides, or to a court having jurisdiction in a place where the minor has property.

Who May be a Guardian?

A father or a mother, their relatives or any person may be appointed by the court are guardians. A father is the natural guardian of a child under the age of 18 years under the GWA.

A person, like the mother, brother, uncle, other relations except father and father’s father, or an institution like an orphanage, may voluntarily place himself or herself in charge of the person or property of the minor; a mother, however, is the next possible guardian after a father, unless the latter, by his will, has appointed another person as the guardian of the child. She under certain circumstances can appoint a guardian by will. She can do so during the lifetime of her husband if he is incapable of acting; or after his death. 

While appointing a guardian, the character, the capacity, and the fitness of the individual should be taken into consideration.

GWA supersedes Shariah in this matter under section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act 1962 (No V).

A court may not be authorized to appoint a guardian if the minor is a married female and whose husband, in the court’s opinion, is not unfit to be her guardian; or if the minor’s father is living and in the court’s opinion, is not unfit to be the minor’s guardian; or the minor’s property is under the superintendence of a court of wards. A minor is also incompetent to act as a guardian of any other minor, except his own wife or child.

Court Proceedings

Any person, including a relative or friend, interested in becoming a guardian must apply to the court under the provisions of the GWA for being appointed as a guardian; he is not bound to wait until his legal title or fitness to act as guardian is disputed by another person. The procedure for such an application is stated in section 10 of the GWA, and no order should be made unless notice of the application is given to persons interested in the minor.

During the court proceedings, the court exercises parental jurisdiction over the child. The court is also empowered to give temporary custody and order protection of the person and property of the minor during the maintenance of the case.

While appointing a guardian, the court must have regard to the welfare of the minor which covers factors such as the age, sex, and the child’s religion, the character and capacity of the proposed guardian and his nearness to the child; the wishes, if any, of the deceased parents, and any existing or previous relations of the proposed guardian with the minor or his or her property; and if the child is old enough to form an intelligent preference, then such preference should also be considered.

Effects of Being Appointed a Guardian

A guardian is responsible to ensure that the minor is supported, fed, housed, clothed, and educated in a manner suitable to his or her position in life, and to the fortune which he or she is likely to enjoy upon attaining the age of majority. The guardian appointed by the court is entitled to such allowance as the court thinks fit for the minor’s care and the effort that he or she goes through while undertaking the duties. The allowance could be paid out of the property of the ward.

A guardian appointed by the court with the court’s permission, cannot remove the ward from the limits of the court’s jurisdiction. The permission could be special or general and could be specified in the court order. Illegal removal of a ward from the court’s jurisdiction is punishable with a fine not exceeding Rs 1000 or a jail term extending to six months.

Cessation of Guardianship

A court, on the application of any interested person or on its own motion, may remove a guardian appointed or declared by it, or even a guardian appointed by will for the following, amongst other, reasons:

  • For abuse of trust;
  • For continued failure to perform the duties of his trust;
  • For incapacity to perform the duties of his trust;
  • For ill-treatment, or neglect to take proper care of the ward;
  • For contumacious disregard of any of the GWA’s provisions or of any of the court orders;
  • For conviction of an offense implying a defect of character;
  • For having an interest adverse to the faithful performance of his duties;
  • For ceasing to reside within the local limits of the court’s jurisdiction;
  • For bankruptcy or insolvency in the case of a guardian of prop

A guardian may also apply to the court for discharging him or her from the responsibility of being a guardian. A person also ceases to be a guardian in the case of his or her death, removal, or discharge; upon the ward ceasing to be a minor; upon the female ward’s marriage whose husband is not unfit to be a her guardian; or upon the court itself assuming superintendence of the minor.

Child Adoption / Custody Agreements

A child custody agreement is an extremely important document subsequent for divorce parenting. It is essential that the areas of concern are covered in the said agreement and therefore a child custody agreement needs a lot of consideration in drafting. The key ingredients of a child custody agreement include:

  • Pesidency including provisions for geographic moves etc.
  • Access periods for each parent including holidays and other special events and occasions.
  • Decision making and responsibilities regarding education, health and religion.
  • financial responsibilities in the form of child support obligations.

Our aim is to prevent any shortcoming in the child custody agreement, to prevent. One of the major shortcomings of most child custody agreements is that they generally don't take into account the changing needs of children. In fact, most child custody agreements are based on the ages and stage of development that children are at when the agreement is first drafted. Considering that children grow and mature, this does not make a lot of sense if a child is a toddler and the agreement is intended to be in place for the child until adulthood. The best child custody agreement is one that considers a child's changing needs based on his or her stage of development.

Another shortcoming of child custody agreements is that they emphasize the parents' needs and not the children's. Although the divorce courts are guided by the "best interests" of children, judges and divorce attorneys who know little about child development are not in a position to guide parents' decision making based on their children's needs.

 
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