‘Children are fragile, handle them with care’, reads a handwritten poster taped to the wall of an odd room on the third floor of the Bandra family court. In contrast to the grim settings of a typical courtroom, the walls of this room are pink, and dotted with posters and crayon paintings to lend it a welcoming feel.

This cheerfully painted room is the place where the children of estranged couples meet their ‘other’ parent - the one that doesn’t have primary custody - usually once a week for a few hours.

Sitting in a corner of it, six-year-old Hussain (name changed) is visibly uncomfortable. For four of his six years, he has been at the centre of a bitter custody battle between his parents. They are separated,but not yet divorced. He has seen his father just once before, at a court hearing.

On this day, the two are meeting for their first ‘visitation hours’ together. Under the terms of his custody, Hussain’s father is allowed access to him for two hours every alternate Saturday. In the two hours they spend together the two barely interact. Hussain firmly avoids eye contact and replies with terse ‘no’ to almost every question from his father. Neither the toys on the floor nor the children playing tempt his out of his seat.

Hussain’s mother says, “My husband never bothered to ask about his child’s well-being for four years, but now that the court has granted me interim primary custody, he suddenly wants to establish a relationship with him. But my son doesn’t want to meet him. In fact, he doesn’t recognise him as his father; he calls his maternal grandfather ‘abbu’ (father).”

On another day in the same room, 13-year-old Shreya (name changed) has not looked up from her mobile phone for an hour. Her father’s desperate attempts to get her attention have been in vain.

She tells the counsellor she doesn’t like it there and would rather be with her friends. Like Hussain’s, her parents have been fighting over her custody for years, and this isn’t the first time she’s missed a picnic or a birthday because of a court-mandated meeting with her father, whom she barely knows.

“Why does he keep trying? What will I say to him? There is nothing to talk about,” she tells the counsellor, her father sitting adjacent.

“Such behaviour is common among teenagers and pre-pubescent children, but in cases like these, children often suffer from what is termed parental alienation syndrome,” says the girl’s counsellor, who asked not to be named.

What the reports calls for
The urgent need to resolve cases like Hussain’s and Shreya’s have prompted the law commission to recommend a root-and-branch change in the way courts resolve child custody battles.

In its report ‘Reforms in Guardianship and Custody Laws in India’, which it submitted to the law ministry on May 23, the commission says that the child’s welfare must be paramount in any decision relating to custody. It also lays out a framework - unprecedented in India - for awarding joint custody of the child whenever it is possible.

As the present law lacks the concept of shared parenting, many cases are reduced to ugly fights for over the sole custody of the child or children. Cases generally conclude when the court names one of the parties as the primary guardian, leaving the other with weekly or fortnightly visitation rights.

And while sole custody is a necessity in many cases, the law presently offers no options for shared custody, even in cases where it is possible and desirable for the child’s best interests. Instead, the all-or-nothing fight for primary custody can often aggravate an already tangled set of circumstances. Experts HT spoke to said courts have had to intervene in many cases to stop estranged couples from using their children to browbeat each other.

“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,” said Jai Prakash, a senior counselor at Muskan, a child guidance clinic at the Tata Institute of Social Studies (TISS).

A child in such a situation can often become alienated from or angry toward one or both parents, counsellors say, especially in cases that drag on for years. “We ask the parents to let go of the past, to stop accusing each other and reliving bad memories, and instead think of their child’s future. It is much easier for children when parents mutually agree on access rights. But such cases are very rare,” said a counsellor, who asked not to be named.

‘Children’s needs come first’
“In appointing a guardian, the welfare of the child must be of paramount importance and everything else should be secondary to this consideration,” the law commission report reads. As a first step towards this, the report seeks to eliminate the bias towards fathers from two pieces of legislature, the Hindu Minorities and Guardians Act, 1956, and the Guardians and Wards Act, 1890.

It recommends these sections, which are often used to prolong cases, 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”.

“It is time to give up the archaic mindset that we have adopted since the British era, to think that only one parent is better than the other parent at taking care of a child,” the report reads.

As its third recommendation, the commission lays out a new legal framework to award joint custody when circumstances permit.

It calls for the introduction of Chapter IIA in the Guardians and Wards Act, 1890. This new section should, it reads: “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.”

Landmark judgement

--> While the commission’s recommendations are pending approval from the law ministry, a ‘test balloon’ case in the Bandra family court is already showing promise. On June 3, days after the law commission’s report was released, it was quoted in a landmark judgement by the family court, when denying exclusive custody of an eight-year-old girl to any one parent. Instead, judge PL Palsingankar heard suggestions from experts and then put forward a detailed plan for the child’s upbringing - shared parenting - which does away with the concept of primary guardianship and gives both parents equal rights over the custody of their child.

--> According to the 29-page order, which quotes portions of the law commission’s report, the girl will live with her mother for 183 days of the year - from July 1 to December 31 - and with her father for the remaining 182 - from January 1 to June 30. It adds that the non-custodian parent will have access to the child every Sunday between 10am and 6pm. Observing that both parties were well-off, the court ordered that the couple share not only the child’s custody but also her expenses. “The husband did not want any contribution from the wife for maintenance [but as] both are working and earning, both should contribute to the upbringing of their daughter,” the court observed.

--> The order also lays out a detailed plan for the child’s finances, including the setting up of a joint bank account, what must be done if she falls ill, and penalties for whichever parents fails to comply with the terms of the custody.

--> The family court’s approach to the long-ignored problem of children caught in custody battles is indeed unprecedented. With the weight of the law commission report behind it, can it set a precedent for thousands of similar cases?

Read: Don’t use children as tools to get at each other HC cautions couples

Read: Move away from old child custody laws, says Mumbai court
 
 

** Lawyers, experts welcome the move, but can it work?
Though many lawyers and other experts have welcomed the law commission’s recommendation on joint custody, they remain wary of how it will be implemented.

“We welcome the recommendation on shared custody. Such a change is imperative and it will put an end to the brutal practice of parents using their children as pawns to settle scores with. We need to understand that both parents have equal rights when it comes to their child’s custody. No child would like to be in a situation where she or he has to choose one of the other. The courts will need to consider the implementation of such plans in detail. One is not in favour of uprooting the child every six months or so, but the idea of doing away with a primary custodian and making both parents equal guardians is a move that has been hailed worldwide.” 
 

- Senior lawyer Mridula Kadam

“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.” 
 

- Senior women’s rights lawyer Veena Gowda

“Joint custody is not just about deciding the child’s living arrangements but also about ensuring equal contribution from both parents in bringing up their child. Straitjacket plans won’t work; we need to apply tailor-made, flexible arrangements to suit each case.”

- Senior lawyer Shilpi Shyamani

A fresh approach?
Here is the gist of the law commission’s main recommendations:

1. Give equal right of custody to father and mother: Section 6(a) of the Hindu Minority and Guardians Act, 1956 should be amended so as to remove the superiority of one parent (father) over the other (mother) and both father and mother should be simultaneously treated as natural guardians of a minor child. At present, the section treats the father of a minor boy or unmarried mother as his/her natural guardian, and the mother can become natural guardian during lifetime of her husband only in exceptional circumstances.

2. Place welfare of the child above everything and change the law accordingly: In appointing a guardian, the welfare of the minor must of paramount importance and everything else should be secondary to this consideration, the law commission said, while recommending appropriate amendments to sections 17 and 19 of the Guardians and Wards Act, 1890.

3. Introduce Chapter IIA in Guardians and Wards Act, 1890: Reiterating that the welfare of the child is of paramount importance when it comes to deciding its custody, the Law Commission has suggested addition of a new chapter in the Guardians and Wards Act, 1890 and thereby:

(a) make it a duty of courts to ensure welfare of the child is met, by recognizing changing emotional, intellectual and physical needs of the child, maintaining healthy and continuing relationship with both parents, society and siblings, recognizing the immediate and future ability and commitment of the parents to participate in the growth of the child etc.

(b) Clearly define joint custody: Joint custody is 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.

(c) Empower courts: to pass different kinds of custody orders, including joint custody; modify the orders as and when required; effectuate or enforce any order relating to custody of a child; provide time-bound mediation; and increase the maximum age for child support to 25 from the present 18.

Child custody laws around the world
 

* United States of America
There are two forms of joint custody in the US: joint legal custody and joint physical custody. Joint legal custody as defined by the state of Georgia, means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care. Joint physical custody means that physical custody is shared by the parents in such a way as to assure the child of substantially equal time and contact with both parents.

* Australia
Australian family courts rarely award joint physical custody in post-divorce arrangements. The courts have developed a detailed list of preconditions for shared physical custody. They include: geographical proximity, compatible parenting, and ability of the parents to supervise the child, child’s adaptability, mutual trust, co-operation and good communication. The parents who wish to secure a joint physical custody arrangement must prove to have a degree of maturity value, attitude, behavior of the parents, and openness of mind to communicate with the other parent.

* United Kingdom
Family courts in UK take into account several factors that include: the ascertainable wishes and feelings of the child concerned. His physical, emotional and educational needs, the likely effect on him of any change in his circumstances, his age, s*x, background and any characteristics of his which the court considers relevant. They also consider how capable each of his parents is, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs.

* South Africa
Family courts in South Africa do not frequently award joint physical custody of children on the basis that such an arrangement would be disruptive for the child, particularly in cases in which the parents live far apart. Instead, courts grant joint custody (but not joint physical custody of the parent). South Africa offers a unique look at autonomy of the children in question for custody arrangements. It takes into account the opinions of the children in dispute.

* Netherlands
All divorces must be accompanied by a parenting plan based on the assumption of a shared parentage system. The plan must include: the division in the care and parenting tasks, how to inform and consult each parent on parenting the children and the costs of caring and parenting the children. If no plan can be agreed upon or the plan is not amenable, the judge has the discretion to send the divorcing parents to a mediator in order to acquire such a plan before continuing the divorce proceedings.

* Thailand
There are generally two procedures for securing child custody arrangements in Thailand. The first is by mutual consent and the second, by the court. Mutual consent is an option for previously married parents who have divorced by mutual consent, previously married parents who had an uncontested divorce, or unmarried couples in which the child is registered as the legitimate child of the father and the unmarried parents agree on the custody arrangement. The court can also award custody to the parents or to a third person as a guardian in lieu of the parents if it is in the “happiness and interest” of the children.

* Singapore
The family law requires the court to consider the best interests of the child. According to the Women’s Charter, the court may not make any judgment of divorce or nullity of marriage or grant a judgment of judicial separation unless the court is satisfied that arrangements have been made for the welfare of the child and that those arrangements are satisfactory or are the best that can be devised in the circumstances or that it is impracticable for the party or parties appearing before the court to make any such arrangements.

* Kenya
Kenyan law draws the distinction between actual custody and legal custody. Actual custody is the actual possession of a child, whether or not that possession is shared with one or more persons. Legal custody is so much of the parental rights and duties in relation to possession of a child as are conferred upon a person by a custody order. The Kenyan law considers the conduct and wishes of the parent or guardian of the child, the ascertainable wishes of the child, the customs of the community to which the child belongs and the religious persuasion of the child. It is important to note that Kenyan law does not place the “best interest of the child” necessarily as paramount.

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Statistics- no. of Divorce and custody cases in the Bandra Family Court from 2012 to 2014 (as per the Court's own records)

2012 – Divorce 8439 ; custody 319

2013 – Divorce 8850 ; custody 331

2014  - Divorce 9092 ; custody 356

Till April 2015-  Divorce 6244 ; custody 264