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CHILD CUSTODY AND VISITATION

Debashrita Manik, 1st Year, KIIT School of Law, KIIT University

A child is always a boon and the apple of the eye to its parents but however, after divorce both the parents want the custody of the child in favour. The honorable court never sees the prosperity of the parents but the child to whom it matters. The court apportions physical custody to those who have parental skills, adequate financial security, a peaceful environment, and mental well-being for better growth and development of the child. The one getting the legal custody of the child is the one owing to the growth, development, physical and mental welfare of the child while the other one not getting the custody has certain visitation rights. Custody of a child to a single parent is one of the toughest decisions, therefore taking in prior caution with all the viewpoints in and out with full care and attention, the court pronounces the judgment because the future of a child is at risk which depends upon the judgment.


MOTHER’S CUSTODY

Indian laws have always stated that both the parents have equal rights for the custody of the child but however, according to Section 6(a) of the Hindu Minority & Guardianship Act, 1956, the custody of the child with ripe age should be given to the mother of the child. This act is often interpreted as discrimination between father and mother in connection to custody rights, but this is not the thing, because according to Article 14 of the Indian constitution, discrimination, which has a reason or object behind to achieve is permissible. In such cases, a child at a tender age can only be taken care of by its mother than anyone else, therefore the discrimination against the father is valid because it shows some reason or objects to achieve, which is the well-being of the child.


FATHER’S CUSTODY

Not necessarily, the custody of a child is always given to its mother. If the minor is old enough to choose its preference and form an intelligent opinion then the court shall consider its preference. In some cases the custody of a child is also given to its father, keeping in mind all the factors required for earning the custody. In the memorable case of Mridangara J. Hira Lal Suchak VS. Neena M. Suchak, the custody of the child was given to the father and the mother got the visitation rights as it was the interest of the welfare of minor Rinku to be in the custody of his natural guardian and his father, the appellant. Sentimental consideration is never an excuse so as to choose the custody of the child, but the welfare of the minor in determining its custody to their father or mother. The court always pronounces the judgment keeping in mind only the welfare of the child. The court further says that the child should be treated as chattel and the father should be treated as a natural guardian. In some cases, even though the child prefers his mother for his own custody then also the court has to dismiss the same provided if the father proves that the mother is unfit or unstable for the welfare of the child. This can also be done at the tender age of the child. This exception comes under Section 6(a) of the Hindu Minority and Guardianship Act, 1956. If the mother is proven ‘unsuitable’ i.e., abusive, neglected, improper employment, failed to provide proper care to the child; then the custody automatically goes to the father, may the age of the child be tender or minor.


DRAWBACKS OF CUSTODY FACED BY THE CHILD

The battle of custody is the most unfortunate part of divorced families. The benefits of sole custody can be wide-reaching but there are also disadvantages for the same, particularly to those who do not receive it.[1] The non-custodial parent’s visitation to the child at intervals may affect his or her relationship with the child.

Apart from getting custody, children having single parents often face usual issues like isolation, hatred, interference, comparison, etc. The impact of their peer groups having both the parents affect a lot. Comparison among friends and relatives is the most common issue among minor children with single parents. In some cases, children often develop natural hatred for the other parent for being away from them since childhood.

In some cases, the sole custody owner often puts certain limitations on the visitation of the other parent. Such as limiting the visiting hour, debarring the child to get in contact with the other parent by any mode of communication, intentionally making scenarios for not allowing the child to go out with the other parent, refusing to hand off the child to the other parent for a scheduled visitation. Between the grudges of both the parents, it is the child who is the ultimate sufferer.


CHILD’S CUSTODY AND RELOCATION

Life is all about change. A change is enough to make things good and help people overcome and accept the harsh past. It is often advised for one or both the parents to go on a vacation or move from the locality after divorce or separation, just for bringing a change. Changing of places often leads to better vibes and moving on from the already darkened days back.

Relocation is okay until both the parents have mutually agreed to the agreement and subsequent change in parenting plan. But, in case of any dispute over the move, then the court shall intervene if the relocation is in the interest of the child.


CONCLUSION

A child’s custody is the worst possible outcome of every divorced parent, whose ultimate sufferers are the child itself and the non-custodial parent. In the battle of anger and hatred for separation, parents often forget about the actual concern of the child.

Decisions related to the child’s upbringing is one of the toughest decision the custodial parent had to decide on its own for the proper welfare of the child both physically and mentally.

References

[1] Women’s Law, "What are some pros and cons of starting a custody case?"

(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

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