Parents’ calls for aren’t vital in custody circumstances when baby is grownup sufficient to make rational choices: Kerala High Court

Kerala HC, custody of the child

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The Kerala High Court on Wednesday found that when deciding custody cases, parents’ claims cannot be given too much weight if the child is adult enough to make rational decisions [Aneesh v. Aswathy].

A Division Bench of Justices Anil K Narendran And PG Ajithkumar made the observation while considering an application from a father seeking custody of his 16-year-old son.

The Bench said the best interests of the child must come first and that their own decision as to which parent they wish to live with must also be considered.

“… the best interests of the child must come first. Being an adult and capable of making sensible decisions in his personal affairs, too much importance cannot be attached to the demands of his parents.”

The petitioner’s father and the boy’s mother lived together as husband and wife until 2020. The petitioner alleged that the defendant mother left his company with the child without sufficient reason. The boy’s mother claimed that the petitioner was in an extramarital relationship with another woman, which is why their cohabitation could not continue.

The family court gave custody of the boy to the mother and granted visitation rights to the father. The father challenged this order in the High Court.

When the court interacted with the boy, he expressed his desire to stay with his mother.

The court also noted that the family court held that overnight custody of the boy could not be transferred to the father because the boy used a wheelchair and his mother would pick him up from school at midday to help him with his daily activities to help pursuits.

After referring to various precedents, the court said that since the boy was an adult and capable of making sensible decisions in his personal affairs, too much importance could not be attached to the parents’ demands.

However, the Court said that having a connection with both parents is essential to the best interests of the child.

“Of course, while the child stays with the mother, the father must be allowed to interact with the child. It is important for the child to maintain emotional connection and warmth with both parents, which will help his proper upbringing. In view of the child’s physical condition and the special needs and amenities required for his or her daily affairs, we do not consider it conducive and in the child’s interest to give the petitioner overnight custody of the child,” reads the the verdict .

The court therefore gave custody of the boy to his mother, but reversed the family court’s order, granting the petitioner visitation rights from 10:00 am to 12:00 pm every other and fourth Saturday.

The petitioner was represented by lawyers MK Sumod, Abdul Raof Pallipath, KR Avinash, Prajit Natnakaran, Vidya MK and Thushara K.

The defendant was represented by attorneys Chacko CA and CM Charisma.

[Aneesh v Aswathy].pdf

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