Soon, joint custody would put child interests first

We don’t really know how many couples get divorced in India, and we seem to know even less about the child custody situation. What is certain in every case up to now is that only one parent was granted custody. That is because Indian law did not recognize joint parental custody of a child in the case of divorce. That may be about to change, if the recommendations of a Law commission report on child custody laws are enacted.

The Hindustan Times says that the report, titled ‘Reforms in Guardianship and Custody Laws in India’, was submitted to the law ministry in May. Starting with the basis that decisions regarding child custody must place the child’s interests first, it calls for joint custody to be preferred whenever possible. This marks a distinct change from the current law. Presently, one parent is named primary guardian and the other is allowed weekly or fortnightly visits. This has brought about many acrimonious disagreements, where children are used as pawns to punish partners during separations.

Jai Prakash, a senior counselor at Muskan, a child guidance clinic at the Tata Institute of Social Studies (TISS), told HT, “Parents in this situation often forget they are supposed to place the best interests of their child or children first. Instead, they use their children as tools to get at each other.”

The changes also seek to balance the rights of both mothers and fathers by doing away with some provisions of the Hindu Minorities and Guardians Act, 1956, and the Guardians and Wards Act, 1890. Under those laws, mothers are given preferential status while the child is under 5 years of age, and for older children, the “natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property…in the case of a boy or unmarried girl-[is] the father, and after him, the mother.” The commission recommended that the laws be “amended to remove the superiority of one parent (father) over the other (mother), and that both father and mother be simultaneously treated as natural guardians.”

The report also reveals a new framework to give joint custody to parents under certain circumstances. It suggests that the introduction of Chapter IIA in the Guardians and Wards Act, 1890, to “clearly define joint custody… where both parents share physical custody of the child in such proportion as the court may determine, and also equally share the responsibility for the care and control of the child, and decision making.”

However, while most acknowledge that this move is a step in the right direction, it isn’t a blanket solution to custody problems arising from divorce, and careful implementation is required. Sometimes sole custody may be preferred by both parties, or is beneficial to the child.

Women’s rights lawyer Veena Gowda said, “While a 50-50 approach might sound ideal, in reality it is often not so. Many divorce cases, for example, also involve domestic violence. Even the law commission report mentions that in cases where there is domestic violence or any sort of abuse, most jurisdictions have a presumption against shared parenting. Thus, till a court rules out all instances of violence, how can equal access be granted to such couples? All custody cases need to be looked at individually. Courts must pay importance not just to shared time but also to shared responsibilities to ensure financial security of such children. They must make decision according to the best interests of the child.”

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