Understanding the guardianship process

Questions about who should look after a child, and who may manage a child’s property, arise after a separation, a divorce or the death of a parent. In Punjab these questions are decided under the Guardians and Wards Act, 1890, and are heard by the Family Court, which exercises the powers of the guardian court.

Guardianship and custody

The law draws a distinction between guardianship, which concerns legal responsibility for a child’s person or property, and custody, which is about who the child lives with day to day. A court may make orders about one or both, and may also set a schedule for the other parent to meet the child.

Who can apply

An application can be made by a person who wishes to be appointed guardian, or by a relative or friend of the child. In practice most applications are made by a parent or a close relative.

What the application contains

The application sets out the child’s name, age and residence, the names of the child’s near relatives, who currently has custody, any property the child owns, and the reasons for the order sought. It should be supported by documents such as:

• the child’s birth certificate or NADRA registration (B-Form);
• the CNICs of the parents and the applicant;
• the nikahnama and, where relevant, divorce or death certificates;
• records of schooling, health and the child’s expenses.

What the court considers

The welfare of the child is the court’s paramount consideration. The court looks at the child’s age, sex and religion, the character and capacity of the person proposed as guardian, how closely they are related to the child, the wishes of a deceased parent, and, where the child is old enough to form an intelligent preference, the child’s own wishes. The court also has regard to the personal law that applies to the child.

How the case proceeds

After the application is filed, notice is issued to the other side, who may file a reply. The court can make interim arrangements, including a meeting schedule, while the case is pending. The parties then lead evidence and the court decides. How long this takes depends on the court’s list and on how far the parties cooperate.

Guardians of a child’s property

A guardian appointed by the court cannot sell, mortgage or otherwise transfer a child’s immovable property without the court’s prior permission. This protects the child, and it is also something any buyer of such property should check. See our guide on buying land in Punjab.