Family law
Child custody: the rule, and what the court actually weighs
Last reviewed: 10 مرداد 1405
Custody is the most common dispute after separation and the most misunderstood. The law states an age rule, but sitting above that rule is the test that decides everything: the welfare of the child.
This guide sets out the rule, what courts weigh in practice, and how the visitation right of the parent without custody is enforced.
The age rule and what governs it
Article 1169 of the Civil Code, as amended in 1382, provides that custody of a child — girl or boy — rests with the mother until the age of seven, after which, if the parents disagree, the court decides with regard to the child's welfare.
What is often missed is that the age rule is not absolute: if remaining with the custodial parent would harm the child's physical health or moral upbringing, the court can order otherwise even before age seven. The child's welfare is the ceiling, not a side consideration.
What the court weighs in practice
"The child's welfare" is a general phrase, but its content is consistent across cases: the physical and mental health of each parent, addiction or misconduct, stability of housing and the child's schooling, the practical ability to care for the child, and — for older children — the child's own wishes.
Evidence decides these cases. Oral assertions about the other parent's neglect carry no weight; what carries weight is a social worker's report, medical records, school records, and testimony from people genuinely close to the situation.
Visitation and how it is enforced
Under article 1174 of the Civil Code, the parent without custody has the right to visit the child, and the court fixes the time and place. The right runs both ways: it belongs to the parent and to the child, which is why the parents cannot simply agree it away.
If the custodial parent obstructs visitation, the other can seek enforcement of the judgment; persistent obstruction can lead to compulsion and, where it continues, to a change of custody. That is why the visitation arrangement must be written into the judgment precisely enough to be enforced — times, place, and how handover happens.
Changing or ending custody
Custody is not a permanent award. A change in circumstances — addiction, imprisonment, illness, a remarriage under conditions that harm the child, or sustained obstruction of visitation — can support an application to transfer custody.
It is also important to distinguish custody from guardianship. Day-to-day care belongs to the custodial parent, but decisions over the child's property and certain major matters remain within the guardianship of the father and paternal grandfather. Conflating the two is the source of a great many mistaken expectations in these cases.
A custody case with Dadyar
- 1
Assess your position
Give Dadyar the child's age and both parents' circumstances to get the governing rule and the welfare factors, with citations.
- 2
Gather the evidence
Ask for the list of evidence that actually carries weight in a custody dispute.
- 3
Draft the petition
Use Dadyar's templates to build a custody or visitation petition with a precise prayer for relief.
- 4
Get specialist advice
Custody turns on case-by-case judgement; book a consultation from Dadyar's lawyer network.
Frequently asked questions
Does custody automatically pass to the father at seven?
No. After seven, if the parents disagree, the court decides on the child's welfare — there is no automatic transfer. What each parent has actually done, and the child's living situation, are decisive.
Does a mother lose custody if she remarries?
Remarriage does not of itself remove custody; what matters is whether the new circumstances harm the child's welfare, which the court assesses on the evidence.
The other parent won't let me see my child. What can I do?
Visitation is enforceable through the judgment. If an arrangement has been set, you can apply to enforce it; if not, you must first petition to have visitation fixed. Sustained obstruction can ground an application to change custody.
Is the child's own view heard?
For older children, the child's wishes are one element in assessing welfare, though not decisive on their own. Courts usually weigh it alongside the social worker's report and the other evidence.
Related to this guide
This guide is general, statute-grounded legal information — not legal advice for your specific situation. For important decisions, consult a licensed lawyer inside Dadyar.