We Are Divorcing by Mutual Consent: What Should the Custody Clauses in Our Settlement Say?

Custody clauses in mutual consent divorce papers should fix six things in writing: where the child lives and which days the other parent has, when and how that parent visits and calls, who decides school, medical, religious and travel questions, how much child maintenance is paid and how it rises, what notice a move to another city or country needs, and what both of you do when a term is broken. "Custody with the mother, reasonable visitation to the father" fixes none of these. Under Section 26 of the Hindu Marriage Act 1955 the Family Court writes your terms into the divorce decree and can vary them from time to time, so a clause drafted carefully becomes an enforceable order and a clause left vague becomes the next case.

Part of the child custody and guardianship practice at S Jain & Attorneys, Bangalore.

This is for a couple who have agreed to divorce under Section 13B, have a child of school age, and have a draft memorandum of understanding in hand.

What should the custody clauses in mutual consent divorce papers cover?

All nineteen of these. The item you skip is the one you argue about in two years.

1. Physical custody: which parent the child lives with, written as "primary residence".
2. Legal custody: which decisions are joint.
3. Schooling: choice and change of school, tuition, who signs forms.
4. Medical care: routine, non-emergency and emergency decisions.
5. Religion and ceremonies: which the child attends and with whom.
6. Extracurriculars: who chooses, who pays, whose time they use.
7. Weekday and weekend schedule: days, clock times, school pickup.
8. Video and phone calls: window, minimum length, missed calls.
9. Holidays and festivals: a named list, alternating each year.
10. Birthdays and parents' days: the child's and each parent's.
11. Vacation blocks: days for each parent in each school break.
12. Pickup, drop and travel cost: handover point, who drives, who pays.
13. Information sharing: both parents on the school and clinic records.
14. Passport and foreign travel: who keeps the passport, how consent is given.
15. Relocation: notice before a move out of the city or country.
16. Child maintenance: monthly figure, payment date and account, heads covered.
17. Escalation and the big heads: annual step-up, school fees, health insurance, an education fund.
18. Communication protocol: one written channel, a response time, nothing through the child.
19. Dispute resolution and modification: mediation before court, how a term is changed, when the child's wishes are revisited.

Three of these do most of the work, in plain English.

Schedule: "The child lives with the mother. The child is with the father from school closing on the first and third Friday of every month until 6 pm on Sunday, and every Wednesday from school closing until 8 pm. The father collects the child from school and drops the child home. Time lost to illness or travel is made up on the next free weekend."

Calls: "On every day the child is not with a parent, that parent may video call the child between 7.30 pm and 8 pm for at least ten minutes. The other parent will have the child ready with a charged device. A missed call is offered again the next morning."

Decisions: "Both parents decide together on the child's school, non-emergency medical treatment, religious ceremonies, passport applications and travel outside India. Either parent may take an emergency medical decision and must inform the other the same day. If a joint decision is not agreed within fifteen days, the parents attend one mediation session before either approaches the Family Court."

Every sentence there answers a question that would otherwise go to a judge.

Key takeaway. Draft every clause as if a stranger will have to enforce it without calling either of you. That is what the executing court will do.

How do we word a visitation schedule that actually works?

As a calendar with default rules, not as an adjective. In Yashita Sahu v State of Rajasthan (20 January 2020) the Supreme Court said courts "must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights". The Family Courts Act 1984 calls this "access" in the Explanation to Section 7.

A working schedule has five parts: fixed days as clock times, a default rule for each predictable collision (a festival on the other parent's weekend, a child with fever on handover day), a make-up rule so lost time is replaced rather than forfeited, a handover rule naming the place and the driver, and a notice rule for one-off changes.

Yashita Sahu also said that, unless there are special circumstances, the parent denied custody "should have the right to talk to his/her child" for five to ten minutes every day. In Ritika Sharan v Sujoy Ghosh (28 October 2020), from the Bengaluru Family Court, the Supreme Court gave the father one hour of video calls on each of Saturday and Sunday and five to ten minutes on other days. The law of access where there is no agreement is in the visitation rights post.

What changes when each term is drafted rather than assumed:

Common mistake. Signing "reasonable visitation" because it is the standard clause. It is standard because it is easy to draft, and it is why the same couple is back in court arguing about what reasonable means on Deepavali.

Who decides school, doctors, travel and a move: how do we write joint legal custody?

Legal custody is the power to decide, and it can be joint while the child lives with one parent. The list normally has six entries: school and any change of school, non-emergency medical treatment, religious ceremonies, passport applications, travel outside India, and relocation of the child's residence. Everything else is the day-to-day call of the parent the child is with. The information clause puts both names on the school and doctor's records, and a school acts on a decree that says this, not on one parent's word.

Joint decisions deadlock, so write the tie-break: fifteen days of discussion in writing, one session with a mediator, then either parent may apply to the Family Court under Section 26. If the court decides, it applies the welfare test in Section 17 of the Guardians and Wards Act 1890: the child's age, sex and religion, each parent's character and capacity, and the preference of a child old enough to form one.

Two more deserve their own clauses even if neither of you plans to move. The relocation clause fixes a written notice period before the child's residence moves outside Bengaluru or outside India, and requires the other parent's written consent or a Family Court order under Section 26 before the move. What a court weighs in a relocation case is in the relocation post.

The passport clause says who keeps the passport, makes an application or renewal a joint decision, and sets the routine for a trip abroad: a written request with itinerary and return date, consent not to be unreasonably refused, and an undertaking to return the child on that date. The passport office's forms are in the passport and consent post.

How do we fix the child's maintenance so it does not come back to court every two years?

A monthly figure, a payment date and account, an automatic step-up, direct payment of the large heads, and both parents' shares if both earn. Section 20 of the Hindu Adoptions and Maintenance Act 1956 lets a minor child claim maintenance from "his or her father or mother". In Padmja Sharma v Ratan Lal Sharma (28 March 2000) the Supreme Court held that it "is as much the obligation of the father to maintain a minor child as that of the mother" and split the children's maintenance between two earning parents in the ratio of their salaries.

Write it in heads: a monthly sum for living costs paid into a named account by a named date, school fees paid directly to the school against the fee demand, a health insurance policy kept in force by one parent, an education fund with a fixed annual deposit by each parent, and a stated ratio for one-off large expenses. Then the step-up: a fixed percentage on a fixed date each year, or an increase tied to the paying parent's documented salary revision.

Two things no clause can do. It cannot take away the child's own right: the claim under Section 20 belongs to the child, the power under Section 26 to provide for "maintenance and education" belongs to the court, and Section 144 of the Bharatiya Nagarik Suraksha Sanhita 2023 (the old Section 125 of the Code of Criminal Procedure) lets a Magistrate, in Bengaluru the Family Court, order a monthly allowance for a child whom a parent with sufficient means neglects to maintain. A promise by one parent never to claim for the child binds that parent's conduct at most. And it cannot make the figure final, because Section 26 lets either parent apply when circumstances change.

What I tell couples at this stage is that the settlements which hold are drafted for the bad year, not the good one. The dispute arrives when one changes jobs and the salary-linked step-up has no document to point to, when the school raises fees mid-year and the clause does not say who pays the increase, when a parent moves forty minutes further away and the Wednesday evening becomes impossible. That is a drafting question before it is a legal one.

How does the court treat our clauses?

It neither rubber-stamps them nor is bound by them. Section 13B(2) requires the court, before the decree on the second motion, to be satisfied "after hearing the parties and after making such inquiry as it thinks fit" that the averments in the petition are true. Section 26 lets the court "make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible", and after the decree to "revoke, suspend or vary" them. Your clauses become the court's own provisions: executable, and never final.

Section 9 of the Family Courts Act 1984 obliges the court to "assist and persuade the parties in arriving at a settlement", and Order XXIII Rule 3 of the Code of Civil Procedure, applied by Section 10 of that Act, requires it to record a lawful written agreement signed by the parties and pass a decree in accordance with it.

What the court will not do is hold you to a bargain made at the child's expense. In Gaytri Bajaj v Jiten Bhalla (5 October 2012) the Section 13B petition had recorded that the father would have sole custody of the two daughters and that the mother "will not insist on any visitation rights". When the mother later came to court, the Supreme Court restated that custody "is required to be made by the Court treating the interest and welfare of the minor to be of paramount importance", and decided on the clearly expressed wish of the daughters, by then seventeen and eleven, to stay with their father. A clause trading away a parent's contact will not hold against the child's welfare, and a clause granting contact will not hold against a child who, once old enough, refuses it.

Deadline warning. The second motion under Section 13B(2) can be moved no earlier than six months and no later than eighteen months after the petition is presented. A schedule rewritten between the motions is a fresh dispute inside a fixed window, explained in the cooling-off post.

What happens if one of us breaks the terms?

Three remedies, in this order: the mediation step, execution of the decree, and variation under Section 26. Because the terms are provisions of a decree, a parent who withholds the child on a scheduled weekend, blocks the calls or stops paying can be brought before the Family Court in execution, and wilful defiance can be contempt. What to file is in the enforcement post, and unpaid child maintenance is in the recovery post.

The breach clause has four parts: a written notice with a short cure period, one mediation session before either parent files anything except where the child's safety is at risk, a record-keeping rule, because execution turns on proof, and a statement that the clauses are to be recorded in the decree under Section 26. For change rather than breach, a new shift pattern or a transfer, let either parent propose the change in writing and take a durable one to the court under Section 26.

Four things decide whether a breached clause can be enforced.

Step by step: from the two-line draft to a decree that carries your clauses

1. Agree the calendar before the lawyers draft: weekends, the weekday evening, festivals by year, birthdays, vacation blocks.
2. Write a line for each of the nineteen items, adapt the sample clauses, then have the MoU drafted as numbered paragraphs and sign every page.
3. File the joint petition under Section 13B(1) with the MoU annexed and the custody and maintenance terms set out in the body of the petition. The papers the court asks for are in the documents post.
4. Live the schedule during the cooling-off period. Practice shows which default rule is missing, and a signed addendum can fix it before the second motion.
5. At the second motion, be ready for the inquiry under Section 13B(2) and for the judge to speak to the child if the court thinks it useful. Ask that the terms be recorded as provisions of the decree under Section 26.

The work is at the drafting table, not in court. Our child custody practice and family and divorce practice pages describe how we approach these settlements, and this short answer gives the realistic timeline.

Frequently Asked Questions

This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.

Related Guides

For help drafting or reviewing a custody settlement, see our child custody practice and our maintenance and alimony practice.

• Joint Custody in India: How It Works and What Parents Should Know
• Can a Custodial Parent Relocate to Another City or Country?
• Mutual Consent Divorce Process in India: A Plain Guide