Household courtroom in Mumbai investigates chance of ‘shared parenting’ in custody circumstances | Information from Mumbai

Mumbai: Seven years after the Law Commission of India recommended granting joint custody of children in divorce cases, the Bandra Family Court has decided to examine the possibility of “shared parenting” in any case involving disputes over child custody child custody goes.

Citing a January 2016 Bombay High Court (HC) ruling, Chief Family Court Judge PL Palsingankar issued a circular on March 5 calling on all parties involved – lawyers representing separated spouses, family court judges and marriage counselors to consider the possibility of amicable arrangements for joint parenting.

“Having in mind the above judgment of the Hon’ble Bombay High Court and having regard to the provisions of Section 9 of the Family Courts Act 1984, it is the duty of all parties to the Family Court to see that an amicable settlement is reached’ lis ‘ (Litigation) regarding the issue of child custody and access,” the circular reads.

In the 2016 ruling, the HC stated that co-parenting should be the rule and single parenting the exception.

“When both parents are available, their connection with the child cannot be artificially denied only because of quarrels, hatred and vengeful actions of the parents,” the ruling said, adding that the family court should invite the parties in marital disputes, a planning to consider co-parenting.

In light of the ruling, Chief Justice Palsingankar said there was a need for the parties to be presented with a “parenting plan” and for their lawyers to explore the possibility of an amicable settlement regarding child custody and dealings in cases where the parents are divorced.

He directed the family court clerk to make a draft of the parenting plan available on the family court website for willing spouses to download and edit the form appropriately and submit it to the family court for consideration.

The 12-page draft or Standard Parenting Plan provides provisions for the schedule of inpatient parenting, shared custody of the child (or children), access and arrangements for schooling, extracurricular activities, and other decision-making processes, including those that relating to it includes day-to-day matters as well as important decisions affecting the child’s career, financial support and maintenance. The primary resident parent may be one of the parents with whom the child is expected to spend most of their time.

The draft plan also provides provisions for plan changes and outlines the rights of the child and the parents.

Family court attorney and attorney Swaty Malik welcomed the move. “It’s a very positive step as far as the child is concerned,” she said, adding that the Supreme Court has strongly opposed the practice of alienating the non-custodial parent.

Malik cited a recent case from Goa where the Supreme Court recommended joint custody, but added that the concept is still evolving in India.

Attorney Sashi Nair, president of the Family Court Bar Association, said joint custody is a key concept in the child’s mental health because, in many cases, the child becomes a tool in the marital dispute.

“The plan (draft plan) was created after taking ideas from various other countries where the concept has progressed. However, in India the plan may face problems in actual execution and hence each case must be dealt with based on its own facts and circumstances. The model plan is just a basis for that,” Nair said.

Common education in India

Although several developed and developing countries have adopted the concept of shared parenting, in November 2014 the Legal Commission in India initiated a dialogue on the concept for the first time by issuing a consultation paper on the introduction of a shared parenting system in India, which has become mainstream systems in several countries where joint custody of children is presumed in the event of parental separation and, unlike in India, sole custody is only granted in exceptional cases.

In its 257th report, presented to the then Minister of Justice on 22 May 2015, the commission recommended reforms to the guardianship and custody laws in India to introduce the concept of joint custody or parenthood.

“Children are the worst affected in divorce proceedings and family breakdowns,” says the report. “Maintaining the centrality of the child’s best interests in custody proceedings helps ensure that the child’s future is safe and secure regardless of changing family circumstances.”

A handful of high courts such as the Bombay HC and Madhya Pradesh HC have issued orders approving co-parenting policies.