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Writer's pictureLead India
May 24, 20233 min read

How Can Grandfather File Writ For Child Custody After Death Of Son After Divorce ?

Under certain conditions, the law permits giving grandparents custody of a child. When choosing who receives custody of the child, the court considers a number of issues. The welfare of the child comes before any party's legal rights by a wide margin. The court considers the child's ability to determine who he chooses to live with if he is old enough to do so.


Testing for Custodial Rights

When assessing custodial rights, the court must take the pertinent Acid test into account. They are-

  • The child's upkeep, schooling, and health are crucial factors in determining who will be granted custody of the child.

  • The biological parents of the child get priority when it comes to custody.

  • The child's well-being is given top priority and cannot be decided purely on the basis of financial stability. However, custody may be granted to the grandparents if they have no interest in the child's well-being.

  • The parent's affection for their children cannot be used as a basis for granting them custody.

  • The Court must consider the child's physical, ethical, and moral well-being. The parent's mental and physical condition, in addition to their employment, is taken into consideration while deciding custody.

  • In cases where both parents are professionals in the workforce and are either unable to care for the child's requirements or have passed away, grandparents will be granted custody.

  • The child's decision about who they want to live with is of the greatest importance when deciding custody.

  • The "character" of the putative guardian is one of the factors a court of justice must take into account.

  • When considering custody disputes, a court is not bound by statute, stringent requirements for proof or process, or established precedents. The welfare and well-being of the children must come first when choosing a capable guardian.

  • Paperwork, oral testimony, or precedents cannot be used as the main or primary basis for deciding custody disputes. Simply having a human touch makes a big difference in a child custody dispute for their wellbeing.


Judicial Pronouncements

  • The Supreme Court recently declared that grandparents should be given preference when custody of a child is awarded following the death of his parents because they are more capable of caring for the youngster than other relatives who are also vying for custody.

  • The justices M. R. Shah and Aniruddha Bose's panel found that grandparents have stronger emotional ties to their grandkids than to their children and are more capable to take care of their grandchildren despite their advanced age.

  • In the case of Jai Prakash Khadria v Shyan Sunder Agarwalla and Anr (2000), the court gave the child's paternal grandparents custody since they lived close to the child's school. The court also argued that because the maternal grandfather was living alone and had no one to take care of the child, the paternal grandparents needed to be granted custody.

How to File Writ for Child Custody after the Death of a Son after Divorce

  • Finding and Hiring a Lawyer- If the grandparents want to file a writ petition saying that the child's mother, who is unable to care for the child, took custody of the child against their will; identifying and employing a lawyer must be their top priority in a custody dispute.

  • They focus on the welfare of the child- the lawyers help the court by providing relevant facts and data while maintaining the best interests of the child in mind.

  • They Help in Proving the Unlawful Custody of the Child- They may establish that the custody is unlawful by proving that a child is being detained in forceful custody, which would prove that the custody is unnecessary and illegal. At that time, the only method to stop the child's unlawful custody is to submit a petition of habeas corpus.

You will require legal counsel to lodge a writ petition for custody of your grandchildren following a divorce or death of the parents. Child Custody Lawyers In Mumbai can be contacted if you want to learn more about how to submit a writ petition to obtain your grandchild's custody in Mumbai.


If you want to find out more about filing a writ petition for your grandchild's custody in Mumbai, you can engage Family Lawyers In Mumbai. Similarly, Divorce Lawyers in Delhi who focus on divorce and child custody matters and are knowledgeable about how to file a writ petition for the custody of your grandchildren can be chosen to handle the situation in Delhi.


At Lead India, you can consult and talk to lawyers there. You can obtain free legal advice online as well as ask a legal question online for free to lawyers for consultation at Lead India.

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