Custody of a Child Above 5 Years in India: Who Decides and How
Quick answer: There is no automatic rule that a child above five years goes to the father or the mother. After five, the "mother ordinarily" presumption under Section 6 of the Hindu Minority and Guardianship Act no longer applies, and the court decides on the welfare of the child, including the child's preference, stability, education, health and each parent's ability to care.
What changes after age five?
The Hindu Minority and Guardianship Act says custody of a child below five should ordinarily be with the mother. After five this presumption ends, and both parents stand on equal footing in law. Courts then apply the welfare test under the Guardians and Wards Act, 1890.
Factors courts consider
| Factor | What courts look at |
|---|---|
| Child's age and needs | Emotional bonds, schooling, special needs |
| Primary caregiver | Who has been looking after the child |
| Child's wishes | A child old enough to express an intelligent preference may be heard; the court is not bound by it |
| Stability | Home, neighbourhood, school continuity |
| Parent's capacity | Time, health, income, support from family |
| Conduct | Violence, addiction or neglect, if shown |
| Siblings | Courts avoid separating siblings where possible |
| Access to the other parent | Willingness to allow contact |
What helps a parent's case
- Show involvement. School records, medical visits, photographs, messages.
- A realistic plan. Daily routine, caregivers, school pick-up, health care.
- Stable accommodation.
- Cooperation. Courts value a parent who supports the child's relationship with the other.
- Honest conduct. Do not pressure or coach the child.
Read the guidance for mothers and fathers.
Visitation and shared parenting
The parent without custody usually gets visitation. In Yashita Sahu v. State of Rajasthan (2020) the Supreme Court emphasised that a child benefits from access to both parents unless there is a risk of harm. Arrangements may include weekend visits, holiday time and video calls.
Getting started in Delhi
File for custody under the Guardians and Wards Act or as part of divorce proceedings, and ask for interim orders if needed. See custody under Hindu law, child custody after divorce in Delhi and our child custody lawyers.
Frequently asked questions
Who gets custody of a child above 5 in India?
Either parent, depending on welfare. There is no automatic rule.
Does the mother lose preference after five?
The statutory "ordinarily with the mother" rule applies only below five, but courts still often consider the mother's role as caregiver.
Will the judge ask the child?
Often, for older children, in a child-friendly setting, but the child's wish is only one factor.
Can the father get custody of a girl above 5?
Yes, if it is in her welfare.
Can custody orders be changed?
Yes, if circumstances change and the child's welfare requires it.
Related guides
- Custody under Hindu law
- Custody of a girl child
- Child custody battles: best interests standard
- Mutual divorce and child custody
Where we can help
Talk to a Delhi lawyer about your case
Every case turns on its own facts and documents. A short consultation with Advocate Anant Misra's team will tell you where you stand and what to do next.
Call +91-98680 84425Book an appointmentThis page is general legal information for readers in India, not legal advice, and no lawyer-client relationship is created by reading it. Laws and court practice change, so confirm the current position with a qualified advocate before acting. AM Legal, 2589 Hudson Lane, GTB Nagar, Delhi 110009.