When a marriage breaks down, the hardest questions are usually about the children. Bangladeshi law treats custody and guardianship as two different things, and the court's first concern in both is the welfare of the child. The main statutes are the Guardians and Wards Act, 1890 and the Family Courts Act, 2023, applied together with the personal law of the parties.

Custody and guardianship are not the same

• Custody (hizanat) is the day-to-day care and physical upbringing of the child.
• Guardianship (wilayat) is the legal authority over the child's person and property, including major decisions about education, marriage and assets.

It is common for a mother to have custody while the father remains the legal guardian.

The position under Muslim personal law

Under the Hanafi rules generally applied in Bangladesh:

• The mother is entitled to custody of a son until the age of seven and of a daughter until puberty.
• The father is the natural guardian of the child's person and property.
• The father must maintain the child even while the child lives with the mother.

These ages are a starting point, not a fixed limit. The higher courts of Bangladesh have repeatedly held that the welfare of the child overrides the traditional age rules, and mothers have been allowed to keep custody beyond those ages where that served the child better.

The welfare principle

Section 17 of the Guardians and Wards Act requires the court to be guided by what appears to be for the welfare of the minor, consistently with the law to which the minor is subject. In practice the court looks at:

• The child's age, sex and religion
• The character and capacity of each parent, and their closeness to the child
• Stability of home, schooling and the child's existing routine
• The child's own preference, if old enough to form an intelligent one
• Any history of neglect, violence or abandonment

Can a mother lose custody?

Traditional rules say a mother may lose her right to custody if she marries a person not related to the child within the prohibited degrees, leads an immoral life or neglects the child. Courts today do not apply these mechanically. Remarriage alone does not automatically end a mother's custody if staying with her is better for the child.

Other communities

For Hindu, Christian and other families, the Guardians and Wards Act applies along with their personal law. The father is generally treated as the natural guardian, but the same welfare test governs who actually keeps the child.

How to apply to the Family Court

1. File a suit for custody or guardianship in the Family Court of the area where the child ordinarily resides.
2. Attach the marriage and divorce documents, the child's birth certificate and any evidence about schooling, health and living arrangements.
3. The court will first attempt reconciliation or a compromise between the parents.
4. If no settlement is reached, the court hears evidence, may speak to the child privately and then gives its decision.
5. Interim orders for custody or visitation can be requested while the case is pending.

Visitation rights

The parent who does not have custody is normally given the right to meet the child. The court can fix the days, times and place, and can order that the child spend holidays or weekends with that parent. Obstructing court-ordered visitation can be used against the custodial parent later.

Child maintenance

The father's duty to maintain his children continues regardless of who has custody. Generally a son is maintained until he reaches majority and a daughter until she is married. A claim for maintenance can be filed in the same Family Court, and arrears can be recovered through the court.

Taking a child abroad

A parent who removes a child from the court's jurisdiction without the other parent's consent or the court's permission risks losing custody and facing legal action. If you plan to relocate, apply to the court first.

Practical advice for parents

• Keep records of school fees, medical expenses and your involvement in the child's life.
• Do not use the child to carry messages or to pressure the other parent.
• Consider a written parenting agreement and have it recorded by the court.
• Custody orders are never final. They can be changed if circumstances change.

This article is for general information only and is not legal advice. Custody outcomes depend heavily on the facts of each family. Consult a family lawyer about your situation. You can find family law practitioners on Ukilpara.com.