Child Custody Guide for Overseas Pakistanis: Key Insights

Author: Sadia Javed, Advocate High Court

CEO of: SJ Law Experts, Islamabad

As an experienced family lawyer practicing in Islamabad, I aim to provide a comprehensive exposition on the legal framework governing child custody law as well for the understanding of overseas Pakistanis.In Pakistan, child custody matters are among the most sensitive and complex issues dealt with by family courts in Islamabad and Rawalpindi. The primary concern in any child custody case is the welfare of the child, which guides the court’s decisions. The legal framework governing child custody in Pakistan is rooted in both Islamic law and Statutory law, providing a comprehensive system for resolving custody disputes. This article will explore the legal framework, the court procedures involved in child custody cases, and the time it typically takes for a court to issue a decree.

Legal Framework for Child Custody:

The legal provisions for child custody in Pakistan are mainly derived from two sources: Islamic principles and statutory laws, primarily the Guardians and Wards Act, 1890.The Guardians and Wards Act, 1890, is the cornerstone of child custody law in Pakistan. It provides the legal basis for appointing guardians for minors and governs the procedures for child custody cases. The Act emphasizes that the welfare of the minor is the paramount consideration in any decision regarding guardianship and custody.Under this Act, a guardian can be appointed for the person or property of a minor, and the court has broad discretion in determining who is most suitable to be appointed as the guardian. The Act applies to both Muslims and non-Muslims in Pakistan, ensuring that the law is uniformly applied across different communities. In addition to the statutory framework, Islamic principles play a significant role in custody decisions, especially for Muslim families residing in Pakistan, and as well for keeping in mind overseas Pakistanis. According to Islamic law, the mother is typically granted custody of young children, especially during their formative years, unless she is deemed unfit or incapable of fulfilling her duties. For male children, the father often gains custody when the child reaches an age where his upbringing requires male guidance, typically around the age of seven. However, Islamic law also emphasizes the welfare of the child, and the court may deviate from these general rules if it determines that doing so would better serve the child’s interests.

Court Procedure for Child Custody:

Furthermore, the court procedure for child custody cases in Pakistan involves several stages, each designed to ensure that the child’s best interests are served.The process begins with the filing of a petition in the family court by the parent or guardian seeking custody. The petition must detail the reasons why the petitioner believes they are the most suitable guardian for the child and may include evidence of the child’s current living conditions, the petitioner’s financial stability, and other relevant factors, such as living abroad. Then, once the petition is filed, the court issues a notice to the other party (usually the other parent) to appear in court and respond to the petition. The respondent is given an opportunity to contest the petition and present their case. Afterwards, during the proceedings, the court may issue interim orders for temporary custody of the child. These orders are meant to ensure the child’s welfare while the case is being adjudicated. Temporary custody may be granted to one parent, with visitation rights for the other. Then, both parties are required to submit evidence to support their claims. This may include witness testimony, financial records, and reports from child welfare agencies or psychologists. The court will hold several hearings to examine the evidence and hear arguments from both sides.In cases where the child is of sufficient age and maturity, the court may take the child’s preference into account. The child’s views are considered particularly important in determining which parent the child feels more comfortable with and which environment they believe is in their best interest.After considering all the evidence and arguments, the court issues a final decree regarding custody. The decree may grant custody to one parent, with or without visitation rights for the other, or in some cases, the Court may order joint custody.

In addition to the above, the time it takes for a court to issue a final decree in a child custody case in Pakistan can vary significantly depending on several factors, including the complexity of the case including one of the parents is an oversea Pakistani, the availability of evidence, and the court’s workload.In general, child custody cases can take anywhere from a few months to over a year to resolve. The issuance of interim orders may occur within the first few weeks of filing the petition, providing temporary relief to the petitioner. However, the final decree usually takes longer as the court thoroughly examines all aspects of the case.Worth to mention here, delays in obtaining evidence, non-cooperation from one of the parties, and procedural adjournments can extend the duration of the case. Additionally, if either party files an appeal against the court’s decision, the process may be further prolonged.

Child custody law in Pakistan is designed to prioritize the welfare of the child above all else. The legal framework, as outlined by the Guardians and Wards Act, 1890, combined with Islamic principles, provides a robust system for resolving custody disputes. While the court procedure can be lengthy and complex, it is structured to ensure that the child’s best interests are fully considered in every decision. As family lawyers, it is crucial to navigate these legal processes with sensitivity and diligence, always keeping the child’s welfare as the guiding principle.

To file a child custody, guardianship or custodianship, our family lawyers in Islamabad are available. You can get details legal consultation via phone or by visiting at SJ Law Experts, Islamabad.