Legal Question in Family Law in India

Re: Child custody when father resides overseas

It's unlikely that the boy's father would initiate some kind of suit from India. However, it is conceivable that he might sue in the appropriate court of the U.S. in order to challenge your custody, even though he's not a U.S. citizen or lawful permanent resident.(Such suits by foreigners with nonimmigrant status have been recognized as valid.)

Rather than sending the boy to see his father in some strange hotel room, you would likely be better advised to have the visitation occur, if possible, at your place of residence. Furthermore, it would not appear to be prudent on your part to simply attempt to sever all of the father's vistation with his 11 year old son at this particular stage in the boy's life without many more persuasive reasons of which a family court of proper jurisdiction within the U.S. could take appropriate cognizance.

Re: Child custody when father resides overseas

Madam,

I presume you and ex were married under the Hindu Marriage Act. It should be possible for you to avoid visitation by your ex in US as per the Indian Law. Your ex is unlikely to file a case in the US considering the financial implication since he may have to visit from Dubai.

Avoding visitation by your ex would be possible if you can provide answers to the following questions and the following documents:

1.Copy of the Petition for divorce with documents filedalongwith it and the copy of the decree of divorce granted by the Indian Court.

2. Copy of the Birth certificate of Your son.

3. A demand draft favouring Mr S.Seshadri for rs 10,000/- payable at chennai towards opinion fees.

Please send the above to the following address and a PROFESSIONAL OPINION WOULD BE COURIERED TO YOU ADVISING YOU APPROPRIATELY TO AVOID ANY LITIGATION IN INDIA BY YOUR EX FOR VISITIATION:

Mr S.Seshadri,

Advocate

Aiiyangar and Associates, ,

7A, Queens Court, 130, Montieth Road, Egmore,

Chennai 600008.

Phones 911- 044- 28515229/ 98403 20808

email:[email protected]/ [email protected]

Re: Child custody when father resides overseas

Supplementing the advice given by Mr. Hendrickson, it is advsable to not to curtail or stop the visitation rights, but to do it at your home instead of father's hotel room.

In any event, since, if you do curtail the visiting rights, the only remedy open to father is to make an application in the same court in India which gave the visitation rights, for violation of its orders.

Of course, if father obtains a favorable order from the Indian Court, he may then apply to the local court in USA for necessary action against you in terms of the said Indian Court's orders.

In case of your visit to India, the said court's order may then be enforced upon you.

Re: Child custody when father resides overseas

Visitation rights are granted by the Court which grants divorce. In your case also Ex would have secured visitation rights only by the decree of divorce.

If you now refuse visitation rights to Ex, then that would amount to contempt of the court's order i.e. disobedience of court's order. Contempt of court is a serious offence and is punishable with imprisonment and fine.

In such a situation, Ex may sue you in India for contempt of court and for securing the visitation rights.

The court would issue summons to you. Contempt proceedings being criminal in nature, you must either yourself or through your attorney attend to the court's summons. In case of non-appearance, then the court may issue arrest warrants against you. However, the arrest warrant cannot be executed since your out of the Indian Territory. In such a case, you would be declared as proclaimed offender and the moment you come into India, the authorities may arrest you.

In order to avoid contempt of court proceedings,

I would suggest that you should move an application before the Court in India which granted you divorce decree praying for modification of the order to the effect of cancelling the visitation rights to Ex. In the application you may explain the conduct of Ex and the dislike of your son towards Ex.

I wish to further caution that even if you apply to a court in US and get an order in your favour, the same would not be recognised by the courts in India.

Re: Child custody when father resides overseas

It is advisable not to restrain your son to Visit his father at this juncture, as the same may lead to legal complications.The later part of your question can only be answered conclusively if you let us know whether the matter has reached any Courts, and if yes, What's the Order granted.

Re: Child custody when father resides overseas

please meet the lawyer who handled the divorce case and report the matter to him, it is better if your lawyer who handled the divorce case should move the court for modification of the custody of the child, giving all reasons and see the outcome of the case.

only after going through the case judgement one can tell correctly

Regards.

Balasubramanya.

Advocate.