Indian courts have the right to decide the custody of the child when the child is born on foreign soil. Every child has the birthright to be a citizen of a country by birth irrespective of their parent’s citizenship. When a dispute arises on child custody in those circumstances, the custody of the child is decided by the land laws where the child resides at the time of seeking custody. In India also the court where the child ordinarily resides will decide the custody of the child.
If the child is an American citizen born to Indian parents, child custody will be decided by Indian courts as per section 26 of the Hindu Marriage Act. In Chennai the parents can decide child custody either in family court or at High court; the same won’t apply to the child residing in other districts.
The family court in Chennai can decide the child custody of a child who is an American citizen as per the authority given under law by the way of Hindu marriage done in Chennai or one of the parties to the marriage is residing in Chennai. On execution of the order, the execution proceedings of the family court will apply.
Usually, mother custody is given to the child below 5 years. After 5 years if it is not decided by the court, the custody will continue along with the mother. No other persons can seek the custody of the child other than the natural parents. In the case of adopted parents, the natural parents will lose their right to the child custody.
Author : K.P.Satish Kumar M.L
Advocate, High Court Madras
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