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Guardianship and Child Custody

Guardianship and child custody

The guardianship and child custody are critical elements of family law, especially in matters concerning the welfare and best interest of children after dissolution of marriage (through divorce of khula). Where a child needs to travel abroad with his mother or father a guardian certificate or where guardian of minor child wants to deal with property of minor, guardian certificate is essentially required which is issued by guardian courts in Pakistan. Where any mother or father wishes to dispose of property through sale or wants to mortgage the property of minor child, he/she must obtain guardian certificate and permission to sale/mortgage as a pre-requisite. The matters related to Guardianship and child custody in Pakistan are primarily governed under The Guardian and Wards Act, 1890.

Guardianship:

Guardianship refers to responsibility granted to an individual to take care and make decisions on behalf of the minor child (a person under age of 18 years). primarily guardian is responsible for the child’s welfare, including their upbringings, nutrition, education and management of property owned by or in the name of child.

Child Custody:

Child custody refers to the legal right of mother or father to keep and care the child, usually following the dissolution of marriage (Divorce/Khulla) or in cases where the parents are unable to take care for the child or his property due to their personal engagements. Child custody decisions focus on with whom the child will live and who will take significant decisions for the life of child as well property in the name of minor child including traveling of minor child abroad.

Who can get the Guardian Certificate and child custody in Divorce case:

Where a husband divorced his wife and minor children resides with the mother, the mother can obtain child custody through appointment as guardian of minor’s person or property. Similarly, if a father wants to obtain minor child’s custody or need visitation rights he can file a petition with the guardian court seeking change of custody to father and can obtain a visitation schedule where minor still resides with the mother.
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Process for obtaining the guardianship or child custody in Pakistan:

After dissolution of marriage, the guardianship and child custody become core issue, the parents either can opt to resolve guardianship and custody through mediation, arbitration or with mutual consent or resort to the guardian courts for resolution of dispute related to guardianship or custody of minor child. Regardless of consensual agreement between husband or wife the guardianship certificate is essentially required by parents. The mother, father or any other person interested can file a petition before the Guardian Judge, within the jurisdiction where minor permanently or temporarily resides.
Upon entrustment of guardian petition, the guardian court shall issue newspaper publication having wide circulation inviting objections from Public at Large. Where no objections are filed, the guardian court shall record evidence and thereafter the court can issue Guardianship Certificate of minor in favor of mother, father or any other interested person.

Documents required for obtaining Guardianship Certificate:

Following is the list of documents required for obtaining guardian certificate of minor child:
  1. B-Form, Birth Certificate or Smart Card issued by NADRA.
  2. Educational Certificates where minor child is a student.
  3. CNIC of mother/father or person who wants to obtain guardian certificate.
  4. Any proof of relationship with the minor child.
  5. Marriage Certificate where person obtaining guardianship of minor is mother or father.
  6. Family Registration Certificate (FRC) establishing relationship with minor.
  7. Any other necessary documents if required.
Zahid Umar Law office is best family lawyer in Pakistan for obtaining guardian certificate having vast experience of obtaining guardian certificate. You can call us for consultancy at your convenience.

FACTORS CONSIDERED BY COURT FOR APPOINTING GUARDIAN OF MINOR PERSON OR PROPERTY?

The Guardian Court is bound to consider certain factors while appointing Guardian and Change of Custody of Child which are listed below:
  1. Court will see where Welfare of Child is best considered either with mother of father.
  2. Financial status of the parent who claims to provide better environment to children.
  3. Character of parent who claimed custody of minor children.
  4. Gender of minor is also considered while dealing with the custody of minor children.
  5. Marital status of parent who claims custody of minor.
Any other matter which in the eye of court is relevant and important for betterment & welfare of minor.

EFFECT OF APPOINTMENT OF GUARDIAN:

When a person is appointed as guardian of a minor person or property he become absolutely responsible for making best efforts to get the necessities of life for minor like food, clothing, footwear, schooling, health and others. To meet all these expenditures Guardian can utilize amount of minor or recover amount spent after selling the property of minor. Moreover, reasonable remuneration for acting as guardian could also be fixed by court.

DUTIES & OBLIGATIONS OF A GUARDIAN?

A guardian of minor person appointed by court or a person whom custody of Minor has been given become responsible for the following:
  • To provide better living environment to minor,
  • To provide food, clothing, footwear suited to his condition in life.
  • To provide education, nutrition and shelter etc. to the minor.

DUTIES REGARDING PROPERTY OF MINOR:

A guardian of property of minor appointed by court or a person whom custody of Minor’s property has been given become responsible for the flowing:
  • To take care of property as of his own as a man of ordinary prudence,
  • To Maintain accounts of income and expenditures of minor’s property.
  • To take all steps to save the property of minor.

Removal of Minor from Territorial Jurisdiction of Guardian Court:

Minor cannot be removed from the jurisdiction of Guardian court who appointed Guardian of minor. However, permission special or general could be obtained for taking the minor out of jurisdiction of guardian court. Removal of minor without permission of guardian court is punishable able under the law.

CAN ANYONE SALE PROPERTY OF MINOR?

With the permission of the Guardian Court the guardian of property can sale the property of minor. However, the accounts of expenditures must be maintained and submitted to the court from time to time as the court may require.

CHILD CUSTODY AGREEMENT:

Agreement to take custody of child is a very important document. Such agreements are usually executed after affecting divorce between couple. Draft of Child Custody Agreement require immense care and expert should draft it, child custody agreement must contain all the necessary details, terms and conditions.
Some important points required attention are mentioned below:
  • Geographical area where parent could move the minor child.
  • Occasions & place where other parent could access the minor must be mentioned.
  • Provisions regarding health, education and religion of minor must be expressly mentioned.
  • Child support and financial responsibilities of parents could be specified.
Our experts team of lawyers provide best possible solutions considering child custody agreement, each and every aspect of welfare of minor children along with duties and responsibilities of parents are discussed & mentioned at length in such agreements. These conditions help the parents to get satisfied that their rights including visitation and use of financial resources are correctly used. Minor children related custody agreements must be drafted carefully where no room should left for ambiguities and uncertainty.
We provide best and reliable service for drafting child custody agreements you can always contact us for availing best drafting service for child custody agreements.

FREQUENTLY ASKED QUESTIONS:

Divorce is unilateral act of husband to dissolve the marriage, where divorce is affected and children reside with the mother, the mother can obtain child custody through appointment of guardian by guardian courts in Pakistan.
Where a father establishes the marriage has been dissolved through khula obtained by mother and child wants to live his father or where the environment of house of mother is not suitable for upbringing of child or child is suffering in heath due to atmosphere, negligence of mother he can obtain custody of child from the guardian court.The male nationals of any foreign country can marry Pakistani women subject to fulfilment of certain conditions of religion.

The Guardian Court is empowered under Section 12 of Guardian and Wards Act, 1890 to change the temporary custody of child or his property in Pakistan and direct the production of child at specified place.

However, a female child shall be produced for temporary change of custody, she may be brought before the court as per the prevailing custom.

Any person interested in the welfare of minor child can approach the court which has issued guardian certificate for removal of guardian and appointment of new guardian, however, he has to prove that guardian already appointed has either mis-conducted and violated the conditions of guardianship certificate or any of the following act:

  1. Failed to perform his duties and act as guardian/trust,
  2. Incapacity of guardian to act as guardian,
  3. Ill-treatment, or neglect to take proper care of minor,
  4. Conviction of offence implying, in the opinion of court, defect of character,
  5. Having adverse interest to minor.
  6. Ceasing to reside within the local limits of court.
  7. In case of guardianship of property, having become insolvent or bankrupt.

Where a person prove any of above conditions he can apply to the court for removing the already appointed guardian and appointment of new guardian of minor.

Any person having relationship or interest in the betterment of minor child can apply for obtaining guardianship of minor’s person or property.
A person duly appointed as guardian by guardian court where minor permanently or temporarily reside can sale the property belonging to minor after seeking permission from guardian court, however, he has to establish the sale is property in question is done for meeting expenses of minor up-bringing or for welfare of minor.
Any person to whom mother and father grant permission can obtain guardian certificate from court and also obtain permission for minor’s travelling abroad. Only after permission of guardian court a person can take the minor children abroad.
Where a minor has been removed from the territorial jurisdiction of guardian court, the court can issue warrants of arrest of person who has removed the minor from jurisdiction of guardian court and where a person appointed as guardian removed the minor from jurisdiction of court, the court may remove him as guardian and appoint any other person in his stead.

Yes, the if the Court thinks fit that a Minor who is subject of some law two or more persons could be appointed as guardian of Minor or his property under section 15 of G&W Act, 1890

Separate guardians of Minor’s Person or Property could also be appointed by Guardian Court at the same time. If properties are more than one than separate guardian of each property could be appointed.

If you require assistance during this time, my firm can help safeguard your rights. Call +92 321 4305422 today to schedule your free consultation. We offer remote video & Zoom conferences as well.

Family Law

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