BEYOND CUSTODY - SOCIO-LEGAL IMPACTS OF PARENTAL DIVORCE ON CHILDREN WITH SPECIAL NEEDS IN INDIA

Abstract

Divorce, though a growing social reality in contemporary India, remains an area of complex emotional and legal navigation, particularly when it involves Children with Special Needs (CWSN). While Indian family law primarily orients custody and guardianship decisions around the principle of the child’s “welfare”, the legal and social discourse seldom addresses how disability alters this welfare equation. This study examines the intersection of family law, disability rights, and social welfare frameworks to highlight the multifaceted consequences of divorce for CWSN. The paper argues that focusing narrowly on custody outcomes overlooks the broader socio-legal ecosystem that determines the child’s long-term well-being. Children with physical, intellectual, or developmental disabilities face unique vulnerabilities that are often compounded by parental separation, ranging from emotional instability and disrupted caregiving to financial insecurity and institutional neglect. Using a multidisciplinary lens, the research explores how existing legal mechanisms under the Hindu Minority and Guardianship Act (1956), Guardians and Wards Act (1890), & Rights of Persons with Disabilities Act (2016) fail to sufficiently integrate the principle of disability-sensitive care into custody and guardianship determinations. Through a review of rulings, statutory frameworks, and sociological literature, the study identifies a recurring pattern of judicial inconsistency and limited recognition of specialized caregiving needs. Mothers, often the primary caregivers, face compounded gendered burdens of economic strain and emotional labor, while fathers’ financial responsibilities are inconsistently defined. Incorporating comparative perspectives from Australia and France, the paper highlights progressive approaches that India can adapt. Australia’s Family Law Act (1975) emphasizes shared parental responsibility within a framework that recognizes children’s developmental and psychological needs, supported by expert family consultants. France, through its Code Civil and child protection institutions, ensures judicial collaboration with social and medical experts, reinforcing the child’s right to stability and inclusion post-divorce. These models demonstrate the effectiveness of multidisciplinary family courts and disability-sensitive custody evaluations. The research concludes that safeguarding the welfare of CWSN post-divorce requires a paradigm shift from procedural justice to substantive inclusion, one that situates disability not as a legal afterthought but as a central axis of family law adjudication. It calls for disability-sensitive custody guidelines, judicial training, and cross-sectoral collaboration between legal, medical, and social systems. Hence, “beyond custody” signifies a move toward holistic justice, where the child’s dignity, continuity of care, and right to inclusive development become the cornerstones of post-divorce family policy in India.