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CHILD CUSTODY LAWS IN PAKISTAN

In Pakistan, child custody after divorce is determined based on the child’s welfare and Islamic principles outlined in the Muslim Family Laws Ordinance (MFLO) of 1961. While the MFLO doesn’t dictate specific age limits, traditionally mothers have the right of Hizanat, meaning priority custody for nurturing young children. This right generally applies to boys until around seven years old and girls until puberty. However, these are not strict rules. 

The Guardians and Wards Act of 1890 is important in child custody cases because it guides courts to decide based on what’s best for the child. This means they look at each parent’s abilities and the child’s unique needs. Even if a father doesn’t have custody, he still has to support the child financially. If either parent thinks the court’s custody decision isn’t in the child’s best interest, they can appeal or challenge it.

When Child Custody Claim Can Be Filed In Court?

Pakistani law allows you to file a child custody claim in court at any time, not just during divorce proceedings. The Guardian and Ward Act of 1890 is the primary legislation governing such disputes. This means you can file a claim if you and your spouse disagree on custody after separation, or even if there was a previous agreement and a significant change has occurred that impacts the child’s well-being.  If one parent takes the child without permission, the other parent can seek legal recourse to regain custody. 

How long does a child custody lawsuit typically last?

Pakistani law aims to resolve child custody cases within six months, but in most cases it usually takes longer. Legal experts estimate an average of 3 to 5 years for child custody lawsuits in Pakistan. This extended duration can be attributed to several factors. It’s crucial to understand that the six-month target is an ideal and not a guaranteed timeframe.  Consulting a Pakistani family lawyer familiar with the system can provide valuable guidance and a more realistic timeline for your specific situation.

Factors Disqualifying Parents from the Rights of Custody in Pakistan

Pakistani law prioritizes the child’s best interests when awarding custody. While there’s no single factor that automatically disqualifies a parent, several aspects can negatively impact their chances of gaining custody. 

Neglect or Abuse:

Evidence of physical, emotional, or sexual abuse significantly weakens a parent’s custody claim.

Immoral or Criminal Activity:

Engaging in criminal activity or a lifestyle deemed immoral by the court raises concerns about a safe environment.

Mental or Physical Incapacity:

Severe mental illness or physical disability hindering child care can affect custody rights.

Drug or Alcohol Addiction:

Active substance abuse demonstrates an inability to prioritize the child’s well-being. 

Financial Instability:

While not absolute, a parent’s ability to provide for basic needs and a stable living environment is considered.

Unfitness as a Guardian:

A history of violent relationships, neglecting responsibilities, or overall character deemed unfit can impact custody.

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FAQs

No, seeking a Khula (divorce) itself doesn’t automatically remove custody from the mother. Pakistani law prioritizes the child’s welfare, and the court will consider factors like the child’s age and the mother’s ability to provide care.
Remarriage isn’t an automatic disqualifier for custody either. However, the court will assess the new living situation and if it’s conducive to the child’s well-being. Factors like the new husband’s character and the stability of the new home will be considered.
Both parents, regardless of gender, can file a child custody claim in Pakistan. Additionally, grandparents can file claims under specific circumstances.
To start a child custody case, you need to file a petition in family court explaining why you want custody and providing reasons to back it up. You’ll also need to submit evidence, like witness statements and proof of your income. You’ll attend court hearings where both sides share their stories and the judge asks questions. The court will then make a decision based on what’s best for the child.
When determining child custody, courts prioritize the child’s age and well-being, focusing on their emotional and physical needs. An important factor is the mother’s right of Hizanat, which grants mothers the right to custody of young children based on Islamic principles, with the age threshold varying for boys and girls. Financial stability is also a key consideration, with the court assessing each parent’s ability to meet the child’s needs. The living environment matters too; the court examines the stability and suitability of each parent’s home. If the child is old enough to express a preference, the court may take that into account as well.
When it comes to child custody, the gender of the parent plays a role, with mothers traditionally having the initial right of Hizanat. However, this doesn’t mean that the father’s rights are dismissed; they are still taken into consideration. Similarly, a mother’s remarriage does not automatically disqualify her from custody. The key question is whether her remarriage has a negative impact on the child’s well-being. If not, the remarriage is not a reason to deny her custody rights.
Non-custodial parents still have important rights even if they don’t have custody. They typically have the right to visitation, allowing them to maintain a relationship with their child through scheduled visits. They are also responsible for financial maintenance, contributing to the child’s upbringing and well-being. Additionally, the child retains inheritance rights from both parents, ensuring that they can inherit from both the custodial and non-custodial parent.

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