Child custody in India: preparing an interim arrangement

Start with the child's daily life

When parents separate, the first custody discussion can quickly become a contest over which parent is more deserving. That framing rarely helps the child, and it rarely helps the court.

A better starting point is the child's routine: school, care, health and contact with both parents, and what arrangement can meet those needs while the case is pending.

Which law lets the court decide interim custody

The framework depends on the personal law that applies and the proceeding before the court. No provision sets one standard schedule for every family.

Law	Provision	What it provides
Hindu Marriage Act, 1955	Section 26	In any proceeding under the Act, the court may make interim orders on the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and may later revoke, suspend or vary them
Guardians and Wards Act, 1890	Section 12	The court may order the child to be produced and make orders for temporary custody and protection while the case is pending
Guardians and Wards Act, 1890	Section 17	In appointing or declaring a guardian, the court is guided by the welfare of the minor, consistently with the law the minor is subject to
Hindu Minority and Guardianship Act, 1956	Section 13	For a Hindu minor, the welfare of the minor is the paramount consideration

What the court weighs

Section 17(2) of the Guardians and Wards Act lists what the court considers for welfare: the child's age, sex and religion, the character and capacity of the proposed guardian, and nearness of kin.

It also looks at any wishes of a deceased parent, and existing or previous relations between the proposed guardian and the child.

Under section 17(3), if the child is old enough to form an intelligent preference, the court may consider it. Section 26 of the Hindu Marriage Act similarly refers to the children's wishes, wherever possible.

For a Hindu child under five, section 6(a) of the Hindu Minority and Guardianship Act says custody shall ordinarily be with the mother. "Ordinarily" is not "always": welfare still decides the case.

In Yashita Sahu v State of Rajasthan (2020), the Supreme Court held that welfare is the paramount consideration and that a child has a basic human right to the love and affection of both parents.

The Court said one parent should be denied contact only in extreme circumstances, with reasons. It also said custody orders should define the nature, manner and specifics of visitation.

Plan contact with the other parent

The same judgment recognised contact rights alongside visits: telephone, email and, where available, video calls.

Unless there are special circumstances, the Court said a parent denied custody should be able to talk to the child for five to ten minutes every day.

So a credible interim proposal does not stop at where the child sleeps. It says how and when the other parent will see and speak to the child, in a way that fits school and routine.

What the proposal should cover

A proposal is easier to assess when it shows how the arrangement would work from one ordinary week to the next. Prepare a factual note on each part:

Part of the child's week	What to set out	Records that may help
School days	Hours, travel time, who handles drop-off and pick-up	School timetable, transport details
Care and health	Who manages meals, homework, appointments and medicines	Medical and school communication records
Living arrangements	Where the child lives now and any recent change	Address history, existing orders
Handovers	Place, time and who is present	Past messages agreeing handovers
Contact	Visits, calls and video calls with the other parent	Call and message logs
Holidays and travel	Vacations, festivals, birthdays and trips	School calendar, travel documents

The aim is not a perfect timetable before taking legal advice. It is to show the practical consequences of the proposal.

A schedule that looks equal on paper may be hard to follow if school, work, travel or the child's needs make it unworkable. Say so honestly rather than proposing something that will fail in the first month.

Keep the record factual and child-focused

Use dates and documents where they exist. Distinguish a document from an assumption about what it proves, and label uncertain points as uncertain.

Do not coach a child to give a particular answer, and do not ask the child to carry messages between parents. The child's views may matter, but the child should not be made responsible for resolving the dispute.

Preserve records lawfully. Do not access another person's accounts, alter messages or circulate private family material publicly.

If there is a specific safety concern, record it accurately and take advice on a protective step. Immediate danger should go to the police or emergency services first.

Existing orders and changes

If a court has already made an order, read the operative directions carefully before changing handovers or contact.

Section 26 of the Hindu Marriage Act lets the court revoke, suspend or vary its custody orders. A genuine change in circumstances calls for a properly framed application to the court, not a change made by one parent alone.

Preparing the interim proposal

Map the child's week. Record school hours, travel, activities, and who currently handles each part of the day.
Collect the documents. Gather school and medical records, travel details and any existing court order.
Write the proposal. Set out where the child lives on school days, how handovers work, and how holidays are shared.
Plan contact with the other parent. Propose visits, calls and video calls at times that fit the child's routine.
Record any safety concern accurately. Note dates, what happened and any report made, and take advice on protective steps.
Prepare for the first consultation. Bring the current order, a short chronology, the weekly routine and the precise arrangement or change you are asking for.

Frequently asked questions

What does an Indian court consider when deciding interim custody?

The child's welfare. Under section 17(2) of the Guardians and Wards Act, that includes the child's age, sex and religion, the capacity and character of the proposed guardian, nearness of kin and existing relations with the child.

Does the child's preference decide custody?

No. Under section 17(3), the court may consider the preference of a child old enough to form an intelligent one. Section 26 of the Hindu Marriage Act refers to the children's wishes wherever possible. Welfare remains the test.

Is the parent without custody entitled to contact?

Ordinarily, yes. In Yashita Sahu (2020), the Supreme Court said contact should be denied only in extreme circumstances, with reasons, and that daily contact by phone or video call should normally be allowed.

Does a young child always stay with the mother?

For a Hindu child under five, section 6(a) of the Hindu Minority and Guardianship Act says custody shall ordinarily be with the mother. The word is "ordinarily": the child's welfare still decides.

Can one parent change the arrangement if circumstances change?

Not unilaterally. Section 26 of the Hindu Marriage Act lets the court revoke, suspend or vary its orders. Apply to the court with the facts that have changed.

The takeaway

Before the discussion, write down one question: what arrangement can meet the child's needs now, and what facts support it?

That keeps the conversation on the child's routine rather than labels about either parent.

If maintenance is also in dispute, see our guide to financial disclosure in a maintenance case. To discuss a custody matter, contact Saya & Associates with the current order, if any, and the next hearing date.

This article provides general information as at 30 September 2026. Custody and guardianship depend on the applicable statute and personal law, the evidence, any existing orders and the child's circumstances. It is not legal advice.