Child visitation
ftmc_atfgrt
(Querist) 13 February 2012
This query is : Resolved
Would the father be allowed visitation rights in this case.
1. Father has been accused of domestic violence.
2. High Court has protection orders for father to not come near the kids, wife because he tried to kidnap kids from school.
3. There is arrest warrant issued for father as he is not paying maintenance.
4. If the visitation rights are issued, would it be under the supervision of the mother at mother's residence?
ajay sethi
(Expert) 13 February 2012
no visiattion rights will be granted as father has been guilty of trying to kidnap children and arrest warrant is pending .
RadhikaReddy
(Expert) 13 February 2012
This cannot be a kidnap.. He can visit under the supervision of kids' mother.. No such cases can prevent visiting rights... Maintenance case is no way related to visiting his kids.. Protection order cannot prevent from visiting them
Tajobsindia
(Expert) 14 February 2012
@ Author
1. I completely disagree to set notions of even the best of my ld. brothers to summarily dismiss pleas of FATHERS seeking mere visitation rights suggestion from Experts and or generic ld. brothers in main family law forum thread postings.
2. Well the best interest maxim overrides the stipulations in different personal laws and is applied universally in all custody litigations and illustration in large below piece is self explanatory for the reason read with best interest behind it which many failed to put in clear ink in this legal portal.
3. To give an example, Ms. X. had been thrown out of the house, without her two daughters, aged four and one. By the time she approached legal aid, six months had lapsed since the event. She wanted custody of the younger daughter. In order to ensure the custody, the legal aid advised her to go to the house and pick up the child with the help of a social agency at a most opportune moment. The strategy succeeded. Within two days, the husband moved the court for custody but so did Ms. X.
The cases were grouped together. On the first day itself an order was passed that neither parent will disturb the custody of the other child (status quo is maintained which means). The husband's advocate flaunted hospital papers of an earlier mental depression suffered by Ms. X to make her look like an unfit mother. But, this did not influence the judge. After some time, the legal aid moved for access of the older child over weekends and holidays, which was granted. Similar access was not granted to the younger child as we argued that at this stage the child is too young. The case came up for final hearing after three years. By this time there was nothing further to do except retain custody with the respective parent. The issue of mental depression had become redundant by then. The court also granted the mother a lump sum maintenance. The custody battle may have been extremely traumatic if the child was not with her during this period.
If the mother has left the matrimonial home without the child and not taken any steps to claim the custody of the child for several months, by the time she stakes her claim for custody, the child would have comfortably settled down and the mother may have become only a faint memory. In such a situation, it is highly unlikely that she will be awarded custody. The mother will have to prove gross neglect on the part of father, which is difficult if the child is well settled and happy.
At best the mother will be granted right of access or visitation rights. Even this becomes problematic, because by then the child would be tutored against the mother. Ascertaining the wishes of the child also becomes meaningless as children usually reflect the opinions of the elders towards an absentee parent. It is very easy to convince a teenager that her mother is a woman of loose character and has abandoned her for selfish reasons.
So despite the positive decisions discussed above, one principle alone will ensure that women are awarded custody that is, to leave the home with the children or in any case to reclaim physical custody with the help of a social agency, the police, or even at their own initiative, before starting the legal battle. Usually women are apprehensive that they may be charged with kidnapping. But it is highly unlikely that a biological parent will be charged with this offence unless, of course, the child comes to harm. If, at the time of taking the custody of the child, a letter is filed with the local police to this effect, it will avert any further complications.
4. The next step is to approach the court and obtain an immediate ad-interim order of custody (temporary custody while the case is being decided) and an injunction restraining the husband from taking away the child. This relatively simple step more or less seals the fate of the matter as in ms. X case. Knowing the slow pace of our civil courts, it will be at least six months to one year before even an interim application for custody comes up for hearing. By then the child would have been admitted into a new school and would have become accustomed to the new environment. Rarely would a court grant custody to the father, if the child is well settled with the mother. The same principle also applies to a child who is left with the father.
Once a legal battle commences, the simple principle followed by the courts is to award interim custody to the parent who already has the physical custody, and award visitation rights to the other parent. This is usually over weekends and school vacations so that studies are not disrupted. Courts tend to believe that the welfare of the child lies in maintaining relationships with both parents.
So, author re-read above logics and you will find solace that the visitation in stated facts before us will always be granted to you no matter DV Act decision may be shown by other side and or be it so the restraining order flashed.
This is befitting case for application of mind by a ld. Judge as the box situation the three-four line facts has already been presented before a ld. Judge and all ld. lordship shall now do is to wriggle out of it and above is the only way out.
