By Bilal Saeed, Advocate (Punjab Bar Council), Lahore High Court and District Courts Lahore. Reviewed and last updated 28 June 2026.
Understanding the welfare-of-the-minor test
The foundation of child custody in Pakistan is section 17 of the Guardians and Wards Act 1890. The court's paramount duty is to protect the welfare of the minor. This is not a formula. The judge weighs many factors: the child's age, physical and mental health, living conditions, financial capacity of each parent, character and conduct, relationship with each parent, and the child's own preference if they are old enough to express one.
Welfare means what serves the child's best interests, not what each parent prefers or deserves. A court will not award custody to a parent solely because they are the biological mother or father. The test is child-centric.
Hizanat vs guardianship
These are two separate roles under Islamic law and the law of Pakistan.
| Role | Meaning | Typical holder | Authority |
|---|---|---|---|
| Hizanat (custody) | Day-to-day care, upbringing, living with the child | Mother (for young children) | Guardians and Wards Act 1890 |
| Guardianship (walayat) | Legal decisions: education, medical, property, marriage | Father (natural guardian) | Muslim Family Laws Ordinance 1961 |
One parent can have custody and the other guardianship. Example: the mother has hizanat and the child lives with her; the father remains the natural guardian and has authority over major decisions like which school the child attends.
Mother's preferential custody
Pakistani courts follow a well-established principle: mothers ordinarily have preferential custody of young children. The age at which this preference ends is not fixed. Judges typically consider children up to around age 7 to 9 as benefiting from the mother's care, but this varies by case, judge, and the child's own needs.
A mother's custody continues even if the father has access or visitation rights. Co-parenting arrangements do not end hizanat.
Common myth: Remarriage automatically ends a mother's custody. Wrong. If a mother remarries, the court will assess whether the new marriage harms the child's welfare. Some judges grant custody to the father if the remarriage introduces instability. Others allow the mother to keep custody if the new family is stable. It depends on the evidence and the welfare test.
Common myth: Mother loses custody at age 7. Wrong. The age is not automatic. The court decides based on facts. A child may express preference for one parent, and a judge will weigh that preference more heavily as the child grows older. A child at age 6 can prefer the father; a child at age 12 refusing to live with the mother carries significant weight.
Father's path to custody
A father can be awarded custody if he proves the mother is unfit, the child's preference supports him (at age of discretion), or circumstances have changed materially. The court still applies the welfare test. Proving fitness means showing a stable home, financial capacity, genuine relationship with the child, and absence of risk.
Common grounds include:
- Mother is addicted to drugs or alcohol
- Mother is absent or has abandoned the child
- Mother's conduct is immoral or harmful to the child
- Mother is in poor health and cannot provide care
- The child, at an appropriate age, expresses a genuine preference for the father
- Substantial change in circumstances since the last custody order
To build a custody case, a father gathers evidence: character witnesses (neighbours, employers, teachers), medical and school records about the child, proof of his own income and housing, and statements from the child if appropriate. He files a petition in the Guardian Court and presents evidence at a hearing. The burden is on him to show the welfare test favors him.
Guardian Court procedure
Custody disputes are heard in the Guardian Court, also called the Family Court or Aiwan-e-Adal in Lahore. The procedure is straightforward but requires evidence and patience.
- File a petition in the Guardian Court naming the other parent as respondent
- The court issues a notice to the respondent
- Both parties give their statements and present evidence (witnesses, documents)
- The judge assesses the welfare of the minor and delivers a judgment
- Either party can appeal to the District Judge and then the Lahore High Court
This is a civil procedure, not criminal. There are no fixed timelines, and cases often take months. If you need legal guidance on your petition, a family lawyer in Lahore can present your evidence and cross-examine the respondent.
Visitation and access rights
Custody is different from access. A parent without custody may still have the right to see the child. If a mother has hizanat, the father ordinarily has visitation rights. These can be supervised or unsupervised depending on the court's assessment of safety.
If one parent denies the other parent access without a court order, the disadvantaged parent can petition the Guardian Court to enforce access rights. Willful denial can be contempt of court.
Section 41: Permission to take a minor abroad
A parent with custody cannot take the child out of Pakistan without permission under section 41 of the Guardians and Wards Act 1890. This permission is called a NOC (no objection certificate) or a permission letter from the court.
If you plan to take your child abroad for a holiday, relocation, or emigration, you must file an application in the Guardian Court. If the other parent opposes, the court will assess whether it is in the child's welfare to leave Pakistan. The court weighs the purpose of travel, duration, the child's ties to Pakistan, schooling, and the relationship with each parent.
Age of discretion and the child's preference
There is no fixed age at which a child's preference becomes decisive. Pakistani judges exercise discretion. A child aged 7 can express a preference, but a judge may not give it much weight without further investigation. A child aged 12 or older expressing a genuine preference carries substantial weight.
Courts will question the child in chambers (privately) to assess whether the preference is genuine or coerced by the other parent. If a teenager consistently and genuinely prefers one parent, that is a strong factor in the custody decision.
Maintenance for the child
Both parents are obligated to maintain the child. In practice, the father typically pays maintenance (nafaqa) to the mother while she has custody. The amount is set by the court and varies widely based on the father's income and the child's needs. Cases award anywhere from PKR 5,000 to 20,000 per month or more.
Maintenance is distinct from dower (mehr). Dower is the wife's right; maintenance is the child's right.
Example (illustrative)
A mother and father divorce. The mother has custody of their 6-year-old daughter under the welfare-of-the-minor test. The father is the natural guardian and pays maintenance of PKR 10,000 per month. The mother remarries. The father believes the new husband is unstable and files a fresh petition for custody in the Guardian Court. The judge hears evidence from both parents, the school, and a child psychologist. The judge may decide the mother's home is still safe and stable, and she retains custody. Or the judge may find the new situation harmful and award custody to the father. The decision depends entirely on the welfare of the child, not on the parents' preferences.
How a family lawyer helps
A family lawyer will help you gather evidence of fitness for custody, present witness statements, cross-examine the other parent, and argue the welfare of the minor on the facts. If you are defending your custody, your lawyer prepares your case and responds to allegations. The law is written in your favour if the welfare test points to you, but the court needs evidence. A lawyer knows how Guardian Court judges think in Lahore and can frame your case persuasively.
This article is general information, not legal advice.
Speak to a family lawyer in Lahore
If you want this handled correctly the first time, Saeed Law Firm has practised in Lahore since 1975. We offer a free initial consultation. Contact us or call the office.
Saeed Law Firm, Y Block Main Market, Sector Y, DHA Phase 3, Lahore 54793. Phone: +92-319-4959420.