What is Guardianship in Pakistan?
Guardianship refers to the legal authority and responsibility to care for and make decisions on behalf of a minor child. It covers aspects such as:
- Physical Custody: Where the child lives and with whom.
- Legal Custody: The right to make decisions about the child’s education, health, and other important life decisions.
In Pakistan, guardianship laws ensure that children’s best interests are prioritized, and the parents (or other legal guardians) are given the responsibility to nurture and protect the child. However, when parents separate, one parent may seek sole or joint custody, which can lead to complex legal proceedings.
Types of Guardianship in Pakistan
In Pakistan, there are two primary forms of guardianship: legal guardianship and custodial guardianship.
1. Legal Guardianship
Legal guardianship refers to the right to make decisions for a child, including decisions related to education, healthcare, and other significant matters. It is typically granted to one or both parents, but in certain cases, other relatives may be appointed as legal guardians by the court.
Who Can Be a Legal Guardian?
- Father: Under Islamic law, the father is generally considered the natural guardian of the child. This means that the father has the primary right to make important decisions on behalf of the child.
- Mother: While the mother may not always have the right to make decisions about the child’s legal matters, she is usually awarded custodial rights if the father is absent or unsuitable.
- Other Relatives: If both parents are deceased or unfit, the courts may appoint a relative, such as a grandparent or an elder sibling, as the legal guardian.
2. Custodial Guardianship
Custodial guardianship refers to the responsibility of providing daily care, education, and overall supervision of the child. While legal guardianship can include custodial rights, custodial guardianship can be granted to one parent or another family member, regardless of the legal guardian status.
Custody Considerations:
- For Mothers: In Pakistan, the mother is typically given custody of young children, especially those under the age of seven. The Islamic law emphasizes the mother’s role in nurturing young children.
- For Fathers: If the mother remarries or is found to be unfit for custody, the father can be granted custody of the children, particularly after they reach a certain age (often around seven or older).
- Joint Custody: In some cases, the court may award joint custody, where both parents share the responsibilities of raising the child. However, this is less common and often requires mutual agreement.
Guardianship and Custody in Case of Divorce
Divorce can significantly complicate guardianship and custody arrangements, especially when there are children involved. In Pakistan, the courts play a crucial role in determining guardianship and custody based on the best interests of the child.
Who Gets Custody After Divorce?
- Mother’s Custody Rights: Generally, if the parents divorce, the mother will be awarded custody of children under the age of seven. This is based on the Islamic principle that the mother is best suited to care for young children. After the child reaches the age of seven, custody may be shifted to the father.
- Father’s Custody Rights: Fathers are more likely to receive custody once the children reach an age where they can be more independent, typically around the age of seven or older. This is because the father is usually considered the natural guardian in terms of decision-making.
- Visitation Rights: The non-custodial parent (often the father) is generally granted visitation rights, allowing them to maintain a relationship with the child. These arrangements are typically decided by the court to ensure the child’s welfare.
Guardianship of Children after the Death of a Parent
When one parent passes away, the surviving parent automatically assumes full custody of the children, unless there is a compelling reason to remove the child from their care. In situations where both parents have passed away or are unfit to care for the child, the courts will appoint a legal guardian.
The Role of Extended Family:
- Grandparents and Relatives: If neither parent is available, extended family members, such as grandparents, uncles, or aunts, may be considered for guardianship. However, they must apply to the Family Court, and the judge will decide based on what is in the child’s best interests.
- Step-parents: If a step-parent wishes to become a guardian, they may be granted guardianship rights if the biological parent gives consent or if it is deemed to be in the child’s best interest by the court.
The Legal Process for Guardianship in Pakistan
Securing legal guardianship in Pakistan requires a clear legal process. Here’s a breakdown of the steps involved in the guardianship process:
1. Petition for Guardianship
If you are seeking guardianship of a child, whether as a parent or a relative, you must file a petition in the Family Court. This petition should include:
- The details of the child and the petitioner (yourself).
- The reasons why you believe you should be appointed as the guardian.
- Any supporting documents such as the death certificate of the deceased parent, proof of incapacity of a parent, or any evidence of unfit behavior.
2. Court Hearing
Once the petition is filed, the Family Court will schedule a hearing where both parties (the applicant and the other parent or parties) will present their arguments. The judge will evaluate the circumstances and decide on the best interests of the child.
3. Appointment of Guardian
If the court is satisfied with the petition and evidence presented, they will appoint a legal guardian. In most cases, the court will prioritize the child’s welfare over everything else, including the parents’ wishes.
4. Custody Arrangements
If guardianship is granted to one parent or relative, custody arrangements will be determined, including living arrangements and visitation rights. The court will also make provisions for child support, if applicable.
5. Appeal Process
If either party is dissatisfied with the court’s decision, they may appeal the ruling in a higher court. The appeal process can be lengthy, and legal representation is essential during this phase.
