Child Custody and Guardianship in Pakistan: Welfare of the Minor

Custody and guardianship disputes are decided by Family Courts, which exercise powers under the Guardians and Wards Act, 1890. The single most important principle is the welfare of the minor.

Custody (hizanat) vs guardianship

Custody is the physical care of the child. Guardianship is the wider legal authority over the child's person and property. A father is ordinarily the natural guardian, while the mother is traditionally entitled to custody of young children, but both are subject to the child's welfare.

The welfare principle

Section 17 directs the court to be guided by what appears to be for the welfare of the minor, considering the age, sex and religion of the minor, the character and capacity of the proposed guardian, their relationship, and the wishes of a deceased parent. If the minor is old enough to form an intelligent preference, the court may consider it.

Factors courts often consider

• Age and gender of the child and who has been the primary caregiver.
• Education, health and emotional stability of the child.
• Remarriage of a parent and the environment of the new household.
• Financial ability — though lack of means alone is not decisive, since maintenance can be ordered.
• Conduct of the parents towards the child.

Procedure

1. File a petition for custody (Section 25) or appointment of guardian (Section 7) in the Family Court.
2. Seek interim custody or a meeting schedule where needed.
3. Evidence of both parties; the court may interview the child.
4. Final order on custody, visitation and, often, maintenance.

Visitation

The court usually fixes a schedule for the non-custodial parent. Non-compliance with the schedule can be brought to the court's attention and may affect custody.