Ensuring the best interest of a child during highly conflicted child custody cases is paramount. India is lagging behind in formulating better child custody laws to fulfil the same. In such battles, the attorneys, psychologists and child services division should ideally work together while ensuring the well being of children who are embroiled in such battles of the spouses.
This article deals with the processes that India lacks when it comes to implementing the principle of “paramount welfare of child”[1] It is an indisputable fact that spouses undergo mental distress but on the same note, the child is the ultimate sufferer. There is a requirement for appointment of child psychologist and children services division to cater the needs of parties to such a dispute. This article deals with the role of habeas corpus in child custody matters, its maintainability, challenges to its execution in pandemic and its manipulation by parties obstructing the paramount interest of the child. This article reflects how virtual visitations can be a barrier in meeting actual needs of a non-custodial parent and how India in this era of the 21st century still lags behind as far as the promotion and execution of mediation and involvement of child services division and child psychologists are concerned.
- Need of child services division / child psychologists in India for child custody matters
- Emphasis on Mediation in Child Custody Matters
- Existence of gender stereotypes in child custody cases
- Impediments to proper execution of Habeas Corpus in child custody cases
- Manipulation of Jurisdiction by Foreign citizen in Child Custody case
- Challenges of Virtual Visitation in Child Custody matters
- Conclusion
Need of child services division / child psychologists in India for child custody matters
High-conflict custody cases can be considered as frequently complex involving disputes over alimony and child-support payments, visitation schedules and allegations of abuse[2],among other thorny issues.
In these situations where family dispute can lead to separation of the child from one of the parents, the child can build a black and white perspective about various aspects in future. Parental divorce/separation is associated with an increased risk for child and adolescent adjustment problems, including academic difficulties (e.g., lower grades and school dropout), disruptive behaviors (e.g., conduct and substance use problems), and depressed mood.
The involvement of a child psychologist and testing for child custody evaluation may play an instrumental role in seamlessly progressing with the child custody matter while giving due regard to the child’s emotional well-being. Only a child psychologist can figure out the developmentally, culturally and linguistically appropriate test to use. The United States can be considered as a good example when it comes to the implementation of these variables to solve child custody matters at the earliest[3].
In India, the courts have made laws for controlling, caring and maintenance of the child less than 18 years of age by the custodial parent(the rights being granted by court) under set parameters such as financial security, understanding with the child, lifestyle etc. The laws for the same have been provided under Guardians and Wards Act, 1890, Hindu Marriage Act, 1955, Special Marriage Act 1954, Hindu Minority and Guardianship Act, 1956, Islamic law, Parsi and Christian law.
But ensuring the welfare of the child during such proceedings is still a matter of grave concern in India given the inadequacy of the existing laws.
India should establish child services divisions to navigate child welfare till the time parents are not able to settle their dispute. Child Services Division protects children and youth from abuse and neglect, and partners with families, young adults, and communities to build safety, permanency, and well-being. Cases in India get stretched due to dispute between the parties but in this fight for custody of child, child’s actual welfare gets neglected. Children in divorce cases often feel caught in a loyalty conflict between their parents. Therapy can be a safe place to deal with this and to address both the positive and negative aspects of their feelings about their parents without repercussions.
Each case has its own dynamics and calls for its own remedy that is why there is a dire need in India to make some amendments in the existing child custody laws which would be solely child welfare centric.
The guidelines of American Psychological Association[4] regarding the involvement of child psychologist in child custody cases focuses on factors that pertain specifically to the psychological best interests of the child, because the court will draw upon these considerations in order to reach its own conclusions and render a decision. A similar model ought to be adopted by India too.
These alternatives for better and quick resolving of child custody disputes can drain wallets of the parties. That is where mediation and family programs[5] come into picture and the judicial system should focus on it with priority.
Emphasis on Mediation in Child Custody Matters
Mediation refers to a method of non-binding dispute resolution with the assistance of a neutral third party who tries to help the disputing parties to arrive at a negotiated settlement.[6]
The benefits of mediation in child custody cases[7] involve that both parents can discuss the best for their child, can open a channel for future negotiations and most importantly the child feels secure that his parents are willing to work together to resolve their family problems.
Many times, judges have recognised the benefits of use of mediation for resolving the disputes.[8] But lawyers still continue to follow the traditional methods and hesitate to adapt to new changes. There is a notion in the minds of lawyers that the mediation process could affect their income.
But as far as child custody cases are concerned mediation can help in quick redressal of the matter which means less emotional turmoil for the child.[9]
Mediation has not been popular in India because of lack of awareness about it and its benefits. There has been no initiative from the Government’s end to promote this practise.
The Mediation Training Manual,[10] circulated by the Mediation and Conciliation Project Committee of the Supreme Court, states that all cases arising from strained or soured relationships including disputes relating to matrimonial causes, maintenance, and custody of children are normally suitable for Alternative Dispute Resolution processes.
Existence of gender stereotypes in child custody cases
Throughout history, gender stereotypes have played a key role in child custody dispositions. Despite current gender-neutral statutes, men’s advocacy groups claim that custody decisions continue to discriminate against fathers[11]. Women’s advocacy groups and the media counter that custody decisions discriminate against mothers.
Rather than focusing on the demands of adults, custody reform should primarily address the needs of children.
In a research conducted by the Psychology department of University of Illinois at chicago[12], it was stated that “Judges with more expertise in family law tended to engage in more biased decision-making than those with less experience in family court”. This goes on to prove the pervasiveness of gender stereotypes that plague the decision making process in matters concerning child custody. It will not be wrong to state that the odds in such cases often do not favour the males.
The issue arises when both sides have levelled allegations against each other in writ of habeas corpus in child custody. Unfortunately, the sufferer is the minor. This petition of Karolin Jagdishbhai Macwan Vs.State of Gujarat[13] and Ors is a classic example of how much bitterness and bad blood can be created out of a failed marriage. It is also an example of how much a young innocent child would suffer on account of bitter fights between his/her parents.
In the case of J.Meena vs T.Manikandan[14], the court was of the view that it is not known whether the allegations levelled by one party is true or not. It is a matter for enquiry / trial. Even assuming it to be true, it may be a ground for one party to seek divorce and may not be a ground to decline custody of the child. The question is whether there are justifiable grounds to decline custody?
The author is of the view that the court should refrain from getting influenced by existing gender stereotypes while determining child custody. Rather due consideration should be given to a parent’s involvement with a child through verifiable evidence.
Impediments to proper execution of Habeas Corpus in child custody cases
Role of Habeas Corpus in Child Custody matters
When it comes to Habeas Corpus in Child Custody case, it has been established maintainable in Elizabeth Dinshaw vs. Arvand M. Dinshaw & Ors[15] , Nithya Anand Raghavan vs. State (NCT of Delhi) & Anr [16] and in the Lahari Sakhamuri vs. Sobhan Kodali[17] and many others.
Writ of habeas corpus in child custody matters is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention.
A writ of Habeas Corpus in child custody matters comes into the picture when a party alleges a ‘detention’ of the child for getting the child’s custody. In the case of Tejaswini Gaud vs Shekhar Jagdish Prasad Tewari[18], the Supreme court of India held “The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child.”
The writ of Habeas Corpus in child custody matters also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it.
In the writ of habeas corpus in child custody matters, detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child.
Obstacles to execution of habeas corpus in child custody
It is seen that the proceedings of Habeas corpus in child custody matters are often hindered by parties wherein new allegations are levelled by one party on the other in mature stages of the court proceedings. In such cases of establishing habeas corpus in child custody matters, the courts have been seen to have assumed the common view that such allegations have no bearing in determining the custody rights of each parent.
In the case of J.Meena vs T.Manikandan[19], the court was of the view that it is not known whether the allegations levelled by one party is true or not. It is a matter for enquiry / trial. Even assuming it to be true, it may be a ground for one party to seek divorce and may not be a ground to decline custody of the child.
The question is whether there are justifiable grounds to decline custody?
“… The children are not mere chattels: nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them…”[20]
Moreover, the enquiry into best interest of child should be made instead of allowing habeas corpus in child custody matters[21]and even if it has come into action, the best interest of the child should be taken into consideration rather than focusing on manipulations by the parties in dispute.
Child custody cases cannot be decided solely by interpreting legal provisions; it is a human problem and is required to be solved with human touch. A court while dealing with Habeas corpus in child custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. [22]
Manipulation of Jurisdiction by Foreign citizen in Child Custody case
In many cases it has been observed that after severing of ties between couples , one parent moves the child to another country without having any legal order or authority[23]. The jurisdiction gets manipulated by one party in order to alienate a child from the other parent.
The Hon’ble Supreme Court and other courts in India have reiterated time and again that in the proceedings for custody of a minor, the welfare of the minor is the only consideration, irrespective of the claims of the parties to the custody.
While dealing with a case of Habeas corpus in child custody, a child was removed by a parent from another country to India in contravention of the orders of the court where the parties had set up their matrimonial home, the Hon’ble Supreme Court has held that a child can seek refuge under the parens patriae jurisdiction of the Courts in India.
Questions also arise as to whether a custody determination made in one State (or country) is enforceable in another State and, if so, what procedures are available to secure enforcement?
In the landmark case of Nithya Anand Raghavan vs State Of NCT of Delhi, the court has observed that India is not yet a signatory to the Hague Convention of 1980 on “Civil Aspects of International Child Abduction”. As regards the non Convention countries, the law is that the court in the country to which the child has been removed in matter of Habeas Corpus in Child Custody must consider the question on merits bearing the welfare of the child as of paramount importance and reckon the order of the foreign court as only a factor to be taken into consideration, unless the court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare.
Further, the Apex Court has also noted that India is not yet a signatory to the Hague Convention of 1980 on “Civil Aspects of International Child Abduction”, and Courts in India must consider the question on merits bearing the welfare of the child as of paramount importance.[24]
Kumar V. Jahgirdhar, president of Children’s Rights Initiative for Shared Parenting (CRISP), a Bangalore-based NGO, reacting to the judgment, said: “In cases relating to international child abduction, the left behind parents, mostly fathers, are deprived of the child custody. The only solution for preventing this crime is India should immediately sign the Hague Convention on International Child Abduction.”
Challenges of Virtual Visitation in Child Custody matters
In India, visitation rights have been defined by the Supreme Court in Roxann Sharma v. Arun Sharma[25] as “a non-custodial parent’s or grandparent’s Court ordered privilege of spending time with a child or grandchild who is living with another person, usually the custodial parent.”
The right to visitation is when a non- custodial parent is given a statutory right and social right to interact with the child. “Virtual visitation,” as the term implies, is a form of child visitation that requires the use of technology to keep in contact with a child. This type of visitation may include email, video conferencing, video mail, and instant messaging, but typically is detailed as part of a parenting agreement or child custody order.
During this COVID pandemic, the courts cannot provide physical visitation rights to non custodial parents and hence virtual visitation is the preferred alternative.[26]
In the United States, several states including Texas, Utah, Illinois, North Carolina and Florida have enacted laws allowing courts to order online or electronic visitation in custody matters. Legislation in many other states like California, Michigan, Ohio, South Carolina, New Jersey(and other states)are currently considering passing such laws.
Virtual visitation comes with its obvious advantages and drawbacks. One of the challenges is when the opposite party hinders the execution of virtual visitation rights by distorting the virtual communication through various means. It could involve intimidating the child from outside the camera’s view, causing interruptions during the virtual call or other similar reasons. A lack of oversight of such calls leaves room for exploitation by the party having the child’s custody while the trial subsists.
Another potential drawback comes in the form of the vengeful parent. There are some concerns that one parent could use this type of parenting time as a way to keep the child from physically visiting or living with the other parent.
The courts should also consider swapping virtual visitation with other modes if any kind of malafide intention is proved to be shown by the custodial parent.
Conclusion
The most important consideration in a proceeding for the custody of a minor is the welfare of the child. No legal right, preferential right or any other right holds more importance than the well-being of the child. Any court of law ideally grants custody to that party who can assure the court that the welfare of the child best lies with them.
In this regard, India needs to frame a proper legislation regarding child custody to ensure the paramount welfare of the child. The proposal for establishing children services divisions along with child psychologists must be given due regard. The efficacy of virtual visitations should be re-considered, given its obvious drawbacks to the extent of obstruction of the visitation process by one party. Attempts to thwart the proceedings by any party which prolongs the judicial process and causes unnecessary stress on the child should be kept under check and attempts to manipulate jurisdiction to obtain custody of a child without legal sanction should be adequately dealt with.
[1] Saraswatibai Shripad Vad v. Shripad Vasanji Vad, (1940) SCC Bom 77
[2] DSG v. AKG, (2019) SCC 1750
[3] Uniform ChildCustody Jurisdiction and Enforcement Act, 1997 and Federal Parental Kidnapping Prevention Act, 1980
[4] American Psychological Association Guidelines, https://www.apa.org/about/policy/approved-guidelines
[5] Parent Education Programs https://www.childwelfare.gov/topics/preventing/prevention-programs/parented/
[6] Afcons Infra. Ltd. v. Cherian Varkey Constn., (2010) 8 SCC 24
[7] Rule 3 of Order XXXIIA of the Code of Civil Procedure, 1908 states that, in suits or proceedings relating to matters concerning the family, where it is possible to do so consistent with the nature and circumstances of the case, the court has a duty to assist the parties in arriving at a settlement. Section 9 of the Family Courts Act, 1984, lays down the duty of the Family Courts to assist and persuade the parties, at first instance, in arriving at a settlement in respect of subject matter.
[8] Justice R.V. Raveendran
[9] Praveen Kohli v. Komal, 2016 SCC OnLine Del 4400
[10] Mediation Training Manual, at p. 67, available at http://supremecourtofindia.nic.in/MEDIATION%20TRAINING%20MANUAL%20OF%20I NDIA.pdf
[11] Gender bias in Child Custody decisions https://onlinelibrary.wiley.com/doi/abs/10.1111/j.174-1617.1996.tb00429.x
[12] Judges as susceptible to gender bias as laypeople, https://www.sciencedaily.com/releases/2018/04/180419141541.htm
[13] (2017) GJ 0936
[14] (2017) 20 MAD 1092
[15] (1987) 1 SCC 42
[16] (2017) 8 SCC 454
[17] (2019) 7 SCC 311
[18] (2019) 6 SCC 838
[19] (2017) 20 MAD 1092
[20] Rosy Jacob V/s Jacob A. Chakramakkal, (1973) 1 SCC 840
[21] Sarita Sharma V/s Sushil Sharma, (2000) 3 SCC 14
[22] Nil Ratan Kundu V/s Abhijit Kundu, (2008) 9 SCC 413
[23] Kanika Goel v State of Delhi, (2018) SCC 635
[24] Nithya Anand Raghavan vs State Of NCT of Delhi
[25] (2015) SC 0165
[26] Hriday Nest of Family Harmony v. The State of West Bengal & Ors.
