Custody is the part of a family breakdown that people most often get wrong, because they approach it as a contest to be won rather than as a question the court decides on one criterion: the welfare of the child.

Arguments about who was at fault in the marriage, who left, or who behaved badly have far less traction than parties expect. The court is not distributing a prize.

The welfare principle governs everything

Whatever the starting presumptions, the court's overriding consideration is what serves the child's welfare — physical, emotional, educational and moral.

In practice that means the court looks at continuity and stability: who has actually been caring for the child, the child's schooling and routine, the accommodation available, the character and circumstances of each parent, and the child's own preference where the child is old enough for it to carry weight.

Custody and guardianship are different things

This distinction causes endless confusion.

Hizanat — custody, meaning day-to-day care and physical control of the child. Under the personal law applicable to most Pakistani families, the mother has a presumptive right to custody of young children, with the age varying by the child's sex and the school of law.

Guardianship — the father is generally the natural guardian, particularly of the child's property, and remains so even where the mother has custody.

So a mother may have custody while the father remains guardian. Neither is absolute, and both yield to welfare. A mother's presumptive right can be displaced where welfare requires it; a father's guardianship does not entitle him to remove a child from a mother providing good care.

What can displace the mother's presumptive right

Courts do displace it, but not lightly, and not for the reasons commonly asserted. The factors that matter are those bearing on the child:

  • Genuine inability or unwillingness to care for the child
  • Circumstances that would materially harm the child's welfare
  • A settled arrangement in which the child has long been cared for by someone else

Remarriage is frequently raised against a mother. It is a factor the court may consider, but it is not automatically disqualifying, and it is often asserted more forcefully than the law supports.

Allegations about conduct during the marriage, made without connection to the child's welfare, generally carry little weight and can damage the party making them.

The father's maintenance obligation continues

This is not contingent on custody or on contact. The father's obligation to maintain his children continues regardless of who has custody and regardless of how the marriage ended.

Maintenance is a separate claim, usually brought alongside custody in the Family Court, and it can include past maintenance in appropriate cases.

Visitation

Courts ordinarily provide for the non-custodial parent to have contact, and increasingly treat that as part of the child's welfare rather than as a concession to the parent.

Where contact is being obstructed, that can be pursued. Where there are genuine safety concerns, supervised arrangements are available. What does not work is self-help — withholding a child in breach of an order is treated seriously and tends to rebound on the parent doing it.

Taking a child abroad

This is where custody matters become genuinely difficult.

Removing a child from Pakistan without the other parent's consent, or without the court's permission where an order is in force, is a serious step with consequences in both countries. Equally, where a child has been brought to Pakistan and retained here, the parent abroad faces a difficult position.

Pakistan is not a party to the principal international convention on child abduction. That means outcomes turn heavily on the specific countries involved, on any bilateral arrangements, and on proceedings in each jurisdiction separately. There is no quick mechanism for return.

If this is your situation, take advice urgently and in both countries. We will tell you candidly what a Pakistani order will and will not achieve abroad, and when instructing counsel in the other country is the more useful first step. See also family matters from abroad.

What evidence actually helps

Courts respond to material about the child, not about the other parent:

  • School records, attendance and reports
  • Medical records and evidence of who takes the child to appointments
  • Evidence of the accommodation and who else lives there
  • Evidence of the child's established routine and who maintains it
  • Financial capacity to meet the child's needs

What rarely helps: extensive allegations about the other parent's character unconnected to the child, recordings obtained deceptively, and involving the child in the dispute. Courts notice when a child has been coached, and it counts against the parent who did it.

Practical advice

Do not remove the child to create a fait accompli. It is the most common opening move and it frequently backfires.

Keep the child out of the argument. Whatever the merits, a parent who conducts the dispute through the child damages their own case and, more importantly, the child.

Document the ordinary caregiving — the school runs, the appointments, the daily routine. That evidence is what the court is actually looking for, and it is much easier gathered as you go than reconstructed later.

Consider settlement seriously. Agreed arrangements about custody and contact, properly recorded, tend to work better and last longer than imposed ones, because both parents have a stake in them.

How the firm can help

We act in custody, guardianship, visitation and maintenance proceedings before the Family and Guardian Courts in Karachi, for mothers and fathers, and we handle these matters discreetly.

Where a workable arrangement can be negotiated we will pursue it, because contested custody litigation is corrosive and rarely produces a better outcome than a sensible agreement. Where it must be fought, it is prepared properly.

Contact the firm to discuss your position, or telephone the chambers if the situation is urgent.