Custody concerns who physically cares for and lives with a child. Guardianship concerns broader legal authority over the child’s person, property or both.
A parent may have legal guardianship without having day-to-day custody, and a custodial parent may still need court approval or the other parent’s lawful cooperation for major decisions, especially international relocation.
Family Court authority
The Family Court has jurisdiction over guardianship and custody under section 5 of the Family Courts Act. Under section 27, it is treated as a District Court for the purposes of the Guardians and Wards Act.
Applications concerning the guardianship of a child’s person are ordinarily made to the court within whose jurisdiction the child ordinarily resides under section 9 of the Guardians and Wards Act.
Ordinary residence is not determined only by the address on a birth certificate. The court may consider the child’s real, settled home, duration of residence, schooling and circumstances of any recent removal.
Guardianship of the person and property
Guardianship of the person involves legal responsibility for the child’s care and major personal decisions.
Guardianship of property involves management and protection of property belonging to the child. A guardian of property does not obtain ownership of that property.
The court may appoint or declare a guardian where the child’s welfare requires it. The applicant should identify whether the order is sought over the child’s person, property or both.
A custody order should not be assumed to authorise the sale of the child’s land or management of inheritance.
Welfare remains central
Section 17 requires the court to consider the child’s welfare. Traditional personal-law rules and parental status remain relevant, but they are applied through the court’s welfare responsibility.
The court may refuse to appoint a person who appears formally entitled if the appointment would harm the child.
Likewise, a court may permit a child to remain physically with one parent while preserving a different legal guardianship arrangement.
Return of a child under section 25
Section 25 of the Guardians and Wards Act permits the court, where a ward leaves or is removed from the custody of a guardian of the person, to order the child’s return if it considers that return to be for the child’s welfare.
The section is not an automatic possession remedy. Welfare remains part of the statutory test.
A parent should not assume that a guardianship title guarantees immediate physical return without examination of the child’s current situation.
Removal from the court’s jurisdiction
Section 26 restricts removal of a ward from the court’s jurisdiction by a guardian appointed or declared by the court without the court’s leave.
This provision should be stated carefully. It directly concerns a guardian appointed or declared by the court. It should not be described as if every biological parent in every case is automatically subject to section 26 before any guardianship proceeding exists.
Separate custody orders, injunctions, passport requirements and parental rights may nevertheless restrict international travel.
Where a case is pending, a parent should seek permission rather than create a dispute through secret departure.
Relocation abroad
A relocation application should address why the move serves the child rather than only the parent.
Relevant matters include:
- Immigration status of the child and relocating parent
- Housing and schooling
- Medical care
- Language and cultural adjustment
- Existing relationship with the other parent
- Proposed contact schedule
- Travel costs
- Risk that contact orders will not be honoured abroad
- The child’s own views
- History of caregiving
- Safety concerns
- Whether the move is genuine or intended to defeat contact
A job offer abroad may benefit the family but is not alone conclusive.
Passport consent and travel documents
A custody or guardianship order should identify who may apply for or retain the child’s passport where possible.
Passport administration and family-court authority are legally separate. A passport office may request parental documents, while a court may issue directions concerning custody, travel or preservation of the passport.
A parent should not make a false lost-passport declaration to obtain a replacement. In Eriko Nakano, the factual history included obtaining replacement passports before the children were removed from Japan, and the Court treated the unilateral conduct as relevant.
Foreign custody and guardianship orders
A foreign order may be important evidence of prior litigation, the child’s residence and the parents’ legal obligations.
It should not be described as automatically self-executing in Bangladesh. Recognition and practical enforcement depend on Bangladeshi law, jurisdiction, procedural fairness, the nature of the order and the child’s current welfare.
The applicant should provide:
- A certified copy of the foreign order
- Proof that it remains in force
- Evidence of service and participation
- An authenticated translation where needed
- The underlying factual findings
- The child’s current circumstances
The Family Court may still need to determine custody on the merits.
Emergency constitutional proceedings
In exceptional circumstances involving alleged unlawful custody, a parent may seek habeas corpus or another Article 102 remedy.
The Appellate Division in Eriko Nakano recognised that constitutional intervention may be available for an immediate unlawful custody problem, while emphasising that the Family Court is ordinarily the proper forum for a final evidence-based custody determination.
A writ petition should not routinely replace a Family Court trial.
Representation from abroad
Section 24 of the Family Courts Act may permit an authorised representative to appear for a person abroad when personal appearance is required for a reason other than testimony. The court may still require evidence from the parent and may direct the manner in which it is given.
A parent seeking relocation should expect detailed examination of the proposed plan. A power of attorney cannot personally answer questions about parenting intentions in the same way as the parent.
Common mistakes
Common mistakes include using “guardian” and “custodian” as interchangeable terms, taking a child abroad during pending litigation and assuming that a foreign order automatically controls.
Another mistake is seeking guardianship of the child’s property without disclosing all assets and proposed management.
Law updated as of 13 July 2026.
Primary sources: Family Courts Act, 2023, sections 5, 24 and 27; Guardians and Wards Act, 1890, sections 7, 9, 12, 17, 25 and 26; Convention on the Rights of the Child; Eriko Nakano v Bangladesh and others.
Legal-information disclaimer: This article provides general legal information, not legal advice. Do not remove a child across borders or withhold a passport based solely on this article. Consult a licensed family-law advocate in each relevant country.