Family and matrimonial
Child custody petition format
Drafting a child custody petition under the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956: the welfare principle, jurisdiction and interim custody.
A child custody petition is filed under Sections 7 and 25 of the Guardians and Wards Act, 1890, read with the Hindu Minority and Guardianship Act, 1956 where the parties are Hindus, before the Family Court or District Court within whose jurisdiction the minor ordinarily resides. The governing consideration is the welfare of the child, which overrides the preferential right of either parent. The petition must plead the child's age and present custody, the petitioner's capacity to provide for the child, and the specific facts showing that custody with the petitioner serves the child's welfare.
- Governed by
- Sections 7, 17 and 25, Guardians and Wards Act, 1890
- Hindu Minority and Guardianship Act, 1956
- Family Courts Act, 1984
- Where it is filed
- The Family Court or District Court within whose jurisdiction the minor ordinarily resides, under Section 9 of the Guardians and Wards Act, 1890.
- Who files it
- A parent, or any person interested in the welfare of the minor.
What a child custody petition must contain
The parts below are the structure of the document in filing order. The operative wording is a matter for the drafting advocate and for the practice of the court concerned.
1.Cause title
The court, the petitioner, the respondent, and the minor described by name and date of birth.
2.Particulars of the minor
Age, sex, religion, present residence, school and who the child is presently with.
3.Relationship and history
The marriage, its breakdown, and how the present custody arrangement came about.
4.Welfare of the child
Schooling, health, care arrangements, the environment offered by each parent, and the child's own preference where the child is of an age to form one.
5.Petitioner's capacity
Income, residence, availability of care, and the support network the petitioner can offer.
6.Reliefs
Permanent custody, interim custody pending disposal, visitation with specific days and timings, and where necessary a direction restraining removal of the child from the jurisdiction.
7.Statutory particulars
The declaration required by Section 10 of the Guardians and Wards Act, 1890, with the supporting affidavit.
Mistakes that get this document returned
- Arguing the other parent's misconduct in the marriage instead of the child's welfare, which is the statutory test.
- Not seeking a workable visitation schedule with specific dates and timings, producing orders that cannot be enforced.
- Filing where the petitioner resides rather than where the minor ordinarily resides.
- No material on schooling, medical care or living arrangements, which is what the court actually weighs.
Frequently asked questions
What is the main test in a child custody case in India?
The welfare of the minor is the paramount consideration under Section 17 of the Guardians and Wards Act, 1890 and Section 13 of the Hindu Minority and Guardianship Act, 1956. It overrides the preferential claim of either parent.
Who gets custody of a child below five years?
Under the proviso to Section 6(a) of the Hindu Minority and Guardianship Act, 1956, custody of a child below five years ordinarily lies with the mother, though this too yields to the welfare of the child.
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Related formats
Last reviewed 30 August 2026. This guide is general information about court procedure for advocates. It is not legal advice and does not replace the rules of practice of the court you are filing in.