One of the most pressing concerns during divorce proceedings is the issue of child custody. Particularly when one parent is abusive. Many clients ask, “Who will have custody of the children while the divorce is ongoing?”. This question takes on even greater urgency when the well-being and safety of the children are at risk. And a parent is seeking full custody while the case is still in progress.
Legal Framework for Interim Custody in Sri Lanka
Under the Civil Procedure Code (CPC) of Sri Lanka, courts are empowered to issue interim orders that determine the custody, maintenance, and education of children while divorce proceedings are still ongoing. These interim custody orders are designed to protect the welfare of the children, ensuring that their needs are met while the court deliberates on the final custody arrangement. The court’s guiding principle in making these decisions is the best interests of the child, a standard that takes into account several factors such as the child’s age, health, emotional and psychological ties to each parent, and the overall home environment.
Court’s Role in Custody Cases
In cases where there is a claim of abuse or neglect, the courts take such allegations very seriously. If the other parent is abusive, it is essential to bring this to the court’s attention as quickly as possible. The court may issue orders to protect the child from harm, including restricting the abusive parent’s access to the child during the proceedings.
Sri Lankan courts also have the power to issue a writ of habeas corpus to ensure that the child’s welfare is given top priority. This writ can be used to challenge unlawful detention or custody of a child and make sure the child is placed in the safest and most suitable environment during the divorce process. If the court believes that another court is more suited to handle the matter, such as a court in a different jurisdiction, it may direct the case to that court to better address the specific circumstances of the custody dispute.
Key Legal Precedents in Child Custody Cases
Over time, Sri Lankan courts have developed a rich body of legal precedents that guide custody decisions. One of the most notable cases is Ivaldy v. Ivaldy (1956) 57 NLR 568, in which the court held that while a father generally has a preferential right to custody, this right is not absolute. The mother can challenge this preference if she can demonstrate that the father is not acting in the best interests of the child. The court ultimately prioritizes the child’s welfare above parental rights.
This principle has been reaffirmed in subsequent rulings, such as in Weragoda v. Weragoda (1961) 66 NLR 83, where the court emphasized that the child’s welfare takes precedence over the automatic custody rights of the father. The court thoroughly examines both parents’ ability to care for the child, including their moral character, financial stability, and emotional capacity to provide a supportive environment. In abuse cases, the court is even more vigilant in ensuring the child’s safety and well-being.
The Best Interests of the Child Standard
In all custody cases, Sri Lankan courts adhere to the principle of “best interests of the child,” which is an internationally recognized standard supported by various international conventions, including the United Nations Convention on the Rights of the Child (UNCRC). This standard compels the court to consider the child’s long-term well-being and development when making any custody decision. Courts often look into factors such as the child’s relationship with each parent, the parent’s ability to provide emotional support, and whether either parent poses a danger to the child.
Steps to Take If You Are Seeking Interim Custody
If you are in the process of seeking interim custody during a divorce, it is crucial to act quickly and strategically. The first step is to gather evidence of any abuse, neglect, or unsafe conditions that the other parent may be subjecting the child to. This evidence may include:
- Police reports or medical records documenting abuse.
- Witness testimony from family members, teachers, or caregivers.
- Photos, videos, or other documentation that proves the unsafe environment.
Presenting this evidence to the court is essential in supporting your claim for custody. It is also highly recommended that you work with a lawyer who is experienced in Sri Lankan family law, especially in cases involving abuse or contentious custody battles. Your lawyer will help you navigate the complex legal procedures and present a strong case to the court on your behalf.
Conclusion: Navigating Child Custody During Divorce
Divorce is never easy, and child custody battles can add to the stress and emotional toll. However, by understanding your legal rights and the available mechanisms under Sri Lankan law, you can protect your children’s well-being during this difficult time. Whether you’re seeking interim custody or a permanent arrangement, the key is to prioritize the best interests of your child and present your case with solid evidence and expert legal support.
Consulting a lawyer with expertise in family law and child custody matters is crucial. With their guidance, you can navigate the legal complexities and secure the protection and care your children deserve.
Do read our blog on divorce law in Sri Lanka to understand this better.
