Law Commission of India Report No. 257
Reforms in Guardianship and Custody Laws in India
Forwarded to the Union Minister of Law and Justice, Ministry of Law and Justice, Government of India by Justice Ajit Prakash Shah Law Commission of India, on 22 May 2015
Hon'ble Minister for Law and Justice
Government of India
Reforms in Guardianship and Custody Laws in India
Background to the Report1.1 This report of the Law Commission of India recommends a number of legislative amendments to emphasize the "welfare of the child" as the paramount consideration in adjudicating custody and guardianship matters. The worst affected in proceedings of divorce and family breakdowns are the children. Maintaining the central importance of the welfare of the child in proceedings of custody will help ensure that the child's future is safe and protected, regardless of changing familial circumstances. The courts in India have also arrived at similar conclusions. For instance, the Bombay High Court held that for determining the final decree, the child's welfare was the supreme consideration, irrespective of the rights and wrongs that the parents contend. Carla Gannon v. Shabaz Farukh Allarakhia, Bombay High Court, Criminal Writ Petition No. 509 of 2009. The Supreme Court has said that the welfare of a child is not to be measured merely by money or physical comfort, but the word welfare must be taken in its widest sense that the tie of affection cannot be disregarded. Nil Ratan Kundu v. Abhijit Kundu AIR 2009 SC (Supp) 732. Over the years, the non-negotiable principle on the basis of which cases of custody of children are decided is that of the 'best interest and welfare of the child' which attempts to enable each child to survive and reach his or her full potential.3 3 Principle 4, Rule 3, Juvenile Justice (Care and Protection of Children) Rules, 2007. 1.2 Despite its widespread recognition as a relevant consideration, the manner in which the welfare principle occurs in our legal and judicial framework, has certain problems, which need legislative redressal. First, there is disparity in the relevance accorded to this principle by different legislations regulating custody and guardianship. Second, there is uncertainty and lack of judicial consensus on what exactly constitutes welfare of the child, as a result, in fiercely fought custody battles, there are no ways to ensure that the interests of the child are actually protected. Third, the legal framework is silent on how should custody issues be handled, what factors should be relevant in decision-making, and what should be the process of dispute resolution between parents over children, among others. Fourth, although there are no codified rules governing custody, decision-making in this area is based on the presumption that welfare of the child essentially lies in custody being awarded to any one of the parents, assessed comparatively. 1.3 This report of the Law Commission reviews the current laws dealing with custody and guardianship, namely, the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956, and recommends legislative amendments to achieve the following objectives:
Legal Framework Governing Custody and Guardianship in India2.1 The law governing custody of children is closely linked with that of guardianship. Guardianship refers to a bundle of rights and powers that an adult has in relation to the person and property of a minor, while custody is a narrower concept relating to the upbringing and day-to-day care and control of the minor. The term 'custody' is not defined in any Indian family law, whether secular or religious. The term 'guardian' is defined by the Guardians and Wards Act, 1890 (hereinafter, GWA) as a "person having the care of the person of a minor or of his property or of both his person and property."19 Another term used by the law is 'natural guardian,' who is the person legally presumed to be the guardian of a minor and who is presumed to be authorized to take all decisions on behalf of the minor. The legal difference between custody and guardianship (or natural guardianship) can be illustrated by the following example: under some religious personal laws, for very young children, the mother is preferred to be the custodian, but the father always remains the natural guardian. 19 § 4(2), GWA. A. Statutory Law (i) Guardians and Wards Act, 1890 2.2.1 The GWA is a secular law regulating questions of guardianship and custody for all children within the territory of India, irrespective of their religion. It authorizes the District Courts to appoint guardians of the person or property of a minor, when the natural guardian as per the minor's personal law or the testamentary guardian appointed under a Will fails to discharge his/her duties towards the minor. The Act is a complete code laying down the rights and obligations of the guardians, procedure for their removal and replacement, and remedies for misconduct by them. It is an umbrella legislation that supplements the personal laws governing guardianship issues under every religion.20 Even if the substantive law applied to a certain case is the personal law of the parties, the procedural law applicable is what is laid down in the GWA.21 20 For instance, Section 2 of the HMGA states that its provisions are 'supplemental' to and 'not in derogation' of the GWA. 21 Guardian and Wards Act, No. 8 of 1890, § 6 ("In the case of a minor, nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property or both, which is valid by the law to which the minor is subject."). 2.2.2 Section 7 of the GWA authorizes the court to appoint a guardian for the person or property or both of a minor, if it is satisfied that it is necessary for the 'welfare of the minor.'22 Section 17 lays down factors to be considered by the court when appointing guardians.23 Section 17(1) states that courts shall be guided by what the personal law of the minor provides and what, in the circumstances of the case, appears to be for the 'welfare of the minor.'24 Section 17(2) clarifies that in determining what is for the welfare of the minor, courts shall consider the age, sex and religion of the minor; the character and capacity of the proposed guardian and how closely related the proposed guardian is to the minor; the wishes, if any, of the deceased parents; and any existing or previous relation of the proposed guardian with the person or property of the minor.25 Section 17(3) states that if the minor is old enough to form an intelligent opinion, the court 'may' consider his/her preference.26 22 Guardian and Wards Act, No. 8 of 1890, § 7. 23 Guardians and Wards Act, No. 8 of 1890, § 17. 24 Guardian and Wards Act, No. 8 of 1890, § 17(1). 25 Guardian and Wards Act, No. 8 of 1890, § 17(2). 26 Guardian and Wards Act, No. 8 of 1890, § 17(3). 2.2.3 Section 19 of the GWA deals with cases where the court may not appoint a guardian.27 Section 19(b) states that a court is not authorized to appoint a guardian to the person of a minor, whose father or mother is alive, and who, in the opinion of the court, is not unfit to be a guardian.28 The earlier Section 19(b) prevented the court from appointing a guardian in case the father of the minor was alive. This clause was amended by the Personal Laws (Amendment) Act, 2010 and was made applicable to cases where even the mother was alive, thus removing the preferential position of the father.29 27 Guardian and Wards Act, No. 8 of 1890, § 19. 28 Guardian and Wards Act, No. 8 of 1890, § 19(b). 29 Personal Laws (Amendment) Act, No. 30 of 2010, § 2. 2.2.4 Section 25 of the GWA deals with the authority of the guardian over the custody of the ward.30 Section 25(1) states that if a ward leaves or is removed from the custody of the guardian, the court can issue an order for the ward's return, if it is of the opinion that it is for the 'welfare of the ward' to be returned to the custody of the guardian.31 30 Guardian and Wards Act, No. 8 of 1890, § 25. 31 Guardian and Wards Act, No. 8 of 1890, § 25(1). 2.2.5 Reading the above provisions together, it can be concluded that, in appointing a guardian to the person or property of a minor under the GWA, courts are to be guided by concern for the welfare of the minor/ward. This is evident from the language of Sections 7 and 17. At the same time, the implication of Section 19(b) is that, unless the court finds the father or mother to be particularly unfit to be a guardian, it cannot exercise its authority to appoint anyone else as the guardian. Thus, power of the court to act in furtherance of the welfare of the minor must defer to the authority of the parent to act as the guardian. (ii) Hindu Minority and Guardianship Act, 1956 2.2.6 Classical Hindu law did not contain principles dealing with guardianship and custody of children. In the Joint Hindu Family, the Karta was responsible for the overall control of all dependents and management of their property, and therefore specific legal rules dealing with guardianship and custody were not thought to be necessary.32 However, in modern statutory Hindu law, the Hindu Minority and Guardianship Act, 1956 (hereinafter, HMGA) provides that the father is the natural guardian of a minor, and after him, it is the mother. Section 6(a) of the HMGA provides that:
(1) in case of a minor boy or unmarried minor girl, the natural guardian is the father, and 'after' him, the mother; and
(2) the custody of a minor who has not completed the age of five years shall 'ordinarily' be with the mother (emphasis added).32 Paras Diwan, Law of Adoption, Minority, Guardianship & Custody (2012), Universal Law Publishing Co.: New Delhi, P. xv. 2.2.7 In Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228 the constitutional validity of Section 6(a) was challenged as violating the guarantee of equality of sexes under Article 14 of the Constitution of India. The Supreme Court considered the import of the word 'after' and examined whether, as per the scheme of the statute, the mother was disentitled from being a natural guardian during the lifetime of the father. The Court observed that the term 'after' must be interpreted in light of the principle that the welfare of the minor is the paramount consideration and the constitutional mandate of equality between men and women. The Court held the term 'after' in Section 6(a) should not be interpreted to mean 'after the lifetime of the father,' but rather that it should be taken to mean 'in the absence of the father.' The Court further specified that 'absence' could be understood as :
temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise. Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228, ¶ 126.96.36.199 Therefore, in the above specific situations, the mother could be the natural guardian even during the lifetime of the father. 2.2.9 Section 13 of the HMGA declares that, in deciding the guardianship of a Hindu minor, the welfare of the minor shall be the 'paramount consideration' and that no person can be appointed as guardian of a Hindu minor if the court is of the opinion that it will not be for the 'welfare' of the minor.35 35 Hindu Minority and Guardianship Act, No. 32 of 1956, § 13. 2.2.10 The following can be concluded with respect to guardianship under the HMGA. First, the father continues to have a preferential position when it comes to natural guardianship and the mother becomes a natural guardian only in exceptional circumstances, as the Supreme Court explained in Gita Hariharan. Thus, even if a mother has custody of the minor since birth and has been exclusively responsible for the care of the minor, the father can, at any time, claim custody on the basis of his superior guardianship rights. Gita Hariharan, therefore, does not adequately address the original problem in Section 6(a) of the HMGA. Second, all statutory guardianship arrangements are ultimately subject to the principle contained in Section 13, that the welfare of the minor is the 'paramount consideration.' In response to the stronger guardianship rights of the father, this is the only provision that a mother may use to argue for custody/guardianship in case of a dispute. 2.2.11 The point of difference between the GWA and the HMGA lies in the emphasis placed on the welfare principle. Under the GWA, parental authority supersedes the welfare principle, while under the HMGA, the welfare principle is of paramount consideration in determining guardianship. Thus, for deciding questions of guardianship for Hindu children, their welfare is of paramount interest, which will override parental authority. But for non-Hindu children, the court's authority to intervene in furtherance of the welfare principle is subordinated to that of the father, as the natural guardian.36 36 Guardian and Wards Act, No. 8 of 1890, § 17(1) ("In appointing or declaring the guardian of a minor, the court shall... be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.") (emphasis added). (iii) Hindu Marriage Act, 1955 2.2.12 Section 26 of the Hindu Marriage Act authorizes courts to pass interim orders in any proceeding under the Act, with respect to custody, maintenance and education of minor children, in consonance with their wishes. The Section also authorizes courts to revoke, suspend or vary such interim orders passed previously. (iv) Islamic Law 2.2.13 In Islamic law, the father is the natural guardian, but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty. Islamic law is the earliest legal system to provide for a clear distinction between guardianship and custody, and also for explicit recognition of the right of the mother to custody.37 The concept of Hizanat provides that, of all persons, the mother is the most suited to have the custody of her children up to a certain age, both during the marriage and after its dissolution. A mother cannot be deprived of this right unless she is disqualified because of apostasy or misconduct and her custody is found to be unfavorable to the welfare of the child.38 In judicial decisions under the GWA involving Muslim children, courts have sometimes upheld the mother's right to custody over children under Islamic law and on other occasions have given custody to the mother out of concern for the welfare of the child. These cases are discussed below. 37 Paras Diwan, Law of Adoption, Minority, Guardianship & Custody (2012) Universal Law Publishing Co.: New Delhi, at P. xvi. 38 Id., at P. xvii. (v) Parsi and Christian Law 2.2.14 Similar to Section 26 of the Hindu Marriage Act, 1955, under Section 49 of the Parsi Marriage and Divorce Act, 193639 and Section 41 of the Indian Divorce Act, 1869,40 courts are authorized to issue interim orders for custody, maintenance and education of minor children in any proceeding under these Acts. Guardianship for Parsi and Christian children is governed by the GWA. 39 Parsi Marriage and Divorce Act, No. 3 of 1936, § 49. 40 Indian Divorce Act, No. 4 of 1869, § 41. B. Judicial Interpretations 2.3.1 The Supreme Court of India, Mausami Ganguli v. Jayant Ganguli, (2008) 7 SCC 673 and almost all of the High Courts have held that, in custody disputes, the concern for the best interest/welfare of the child supersedes even the statutory provisions on the subject outlined above. While the older cases under the GWA unequivocally hold that the father can be deprived of his position as the natural guardian only if he is found to be unfit for guardianship, there are many cases where the courts have made exceptions to this notion. 2.3.2 Some illustrative examples are as follows. In a 1950 decision under the GWA, the Madras High Court awarded custody to the mother based on the welfare principle, even though the father was not found unfit to be a guardian, Soora Beddi v. Cheema Reddy, AIR 1950 Mad 306. Courts have held that in deciding custody, children should not be uprooted from their familiar surroundings just to give effect to the father's right to natural guardianship, Vegesina Venkata Narasiah v. Chintalpati, AIR 1971 AP 134. In a case where the child was brought up by the maternal grandparents after the death of the mother, the Andhra Pradesh High Court held that, in view of Article 21 of the Constitution, children cannot be treated as chattel and the father's unconditional right to the custody over children and their property cannot be enforced, even if the father was not unfit to act as the guardian, L. Chandran v. Venkatalakshmi, AIR 1981 AP 1. Where both parents of the child were dead and the paternal relations claimed custody of the child who was residing with the maternal relations, the Calcutta High Court held that welfare of the minor was the paramount concern, and the paternal relations did not have a preferential position in matters of custody, Satyandra Nath v. B. Chakraborthy, AIR 1981 Cal 701. There are similar examples from other High Courts as well. 2.3.3 In deciding cases involving Muslim children, High Courts have decided in favour of the mother only when her right to custody was supported by Muslim law. In Suharabi v. D. Mohammed, AIR 1988 Ker 36 where the father objected to the mother's custody of the one-and-a-half year-old daughter on the ground that she was poor, the Kerala High Court held that the mother was authorized to have custody of a daughter of that age under Islamic law. In similar vein, in Md. Jameel Ahmed Ansari v. Ishrath Sajeeda, AIR 1983 AP 106 the Andhra Pradesh High Court awarded the custody of an eleven-year-old boy to the father, on the ground that Muslim law allowed the mother to have exclusive custody only until the age of seven in case of male children, and there was nothing to prove that the father was unfit to be a guardian in this case. In another case, the Madhya Pradesh High Court interpreted Mahomedan Law to allow custody for the mother, Mumtaz Begum v. Mubarak Hussain, AIR 1986 MP 221. 2.3.4 Two problems can be noted with the legal and judicial framework described above. The first is the superior position of the father in case of guardianship, though not necessarily in case of custody. The second is the indeterminacy of the welfare of the child principle, despite its widespread usage. (i) Superior Position of the Father 2.3.5 We have noted above, that under the GWA, the discrimination between the mother and the father in terms of guardianship has been removed by the 2010 amendment to Section 19(b). But discrimination between the parents continues under the HMGA. As far back as 1989, regarding the preferential position given to the father under Section 6(a) of the HMGA, the Law Commission of India had stated that:
Thus, statutory recognition has been accorded to the objectionable proposition that the father is entitled to the custody of the minor child in preference to the mother. Apart from the fact that there is no rational basis for according an inferior position in the order of preference to the mother vis-à-vis the father, the proposition is vulnerable to challenge on several grounds. In the first place, it discloses an anti-feminine bias. It reveals age-old distrust for women and feeling of superiority for men and inferiority for women. Whatever may have been the justification for the same in the past, assuming there was some, there is no warrant for persisting with this ancient prejudice, at least after the ushering in of the Constitution of India which proclaims the right of women to equality and guarantees non-discrimination on the ground of sex under the lofty principle enshrined in Article 15. In fact, clause (3) of Article 15, by necessary implication, gives a pre-vision of beneficial legislation geared to the special needs of women and children with a pro-women and pro-children bias. It is indeed strange that in the face of the said constitutional provision, the discrimination against women has been tolerated for nearly four decades.4949 Law Commission of India, 133rd Report, August (1989), ¶ 4.1, available at: http://lawcommissionofindia.nic.in/101-169/Report133.pdf 2.3.6 The Commission had recommended amending Section 6(a) to "constitute both the father and the mother as being natural guardians 'jointly and severally,' having equal rights in respect of a minor and his property."50 50 Law Commission of India, 133rd Report, August (1989), ¶ 4.3, available at: http://lawcommissionofindia.nic.in/101-169/Report133.pdf 2.3.7 The problem is further highlighted by the inconsistency between the superior position of the father in statutory law and recent judicial thinking on parental roles. In Padmaja Sharma v. Ratan Lal Sharma, AIR 2000 SC 1398 the Supreme Court held that the mother was equally responsible to pay towards the maintenance of the child. While pursuing the goal of equality in parental responsibility is laudable, the decision leads to an ironic result-the mother is not deemed a natural guardian and therefore does not have a say in significant decisions affecting the child, but she has equal financial responsibility towards the child. Similarly, in a 2004 judgement, commenting on a judgement of the Karnataka High Court that reversed a Family Court order and allowed the mother to retain custody of the minor daughter, the Supreme Court noted,
We make it clear that we do not subscribe to the general observations and comments made by the High Court in favour of mother as parent to be always a preferable to the father to retain custody of the child. In our considered opinion, such generalisation in favour of the mother should not have been made. Kumar v. Jahgirdar v. Chethana Ramatheertha, SLP (Civil) 4230-4231/ 2003, Supreme Court of India, Judgement dated 29 January, 2004.2.3.8 Equality between parents is a goal that needs to be pursued and, indeed, the law should not make preferences between parents based on gender stereotypes. However, such equality cannot be only in terms of roles and responsibilities, but must also be in terms of the rights and legal position of the parents. Thus, the first step towards reform in this area is to dismantle the preferential position of the father in the HMGA, and make both the mother and the father natural guardians. (ii) Indeterminacy of the Welfare standard 2.3.9 While the welfare principle is used extensively by appellate courts dealing with custody issues, there is no evidence of the extent of its use by the lower courts. Based on a study of Family Court orders, legal academician Asha Bajpai notes,
The best interest of the child may have been considered by the courts, but there was no mention of this standard in the orders. The courts did not give any information regarding the factors that they considered or their reasons for awarding custody. The orders just mentioned to whom custody was awarded in a particular case. Asha Bajpai, Custody and Guardianship of Children in India, 39(2) Family Law Quarterly 441, 447 (2005).2.3.10 The problem with respect to the welfare principle is that, despite its extensive invocation, the appellate judicial decisions do not illuminate the legal content of this principle. Family Law scholars note that while there are illustrations galore, no principled basis can be found in the manner in which courts use the welfare of the child standard. Legal academician Archana Parashar analyzed Supreme Court judgements from 1959 to 2000 that used the best-interest principle in custody disputes. Parashar concluded that, in the absence of legislative guidance regarding what factors should be used to assess the best interest of a minor, courts give varied interpretations based on their personal ideas about what is best for the children and notions of ideal parenthood.54 For instance, there are contradictory judgements on whether the financial capacity of a parent is a relevant factor in deciding custody. In Rosy Jacob v. Jacob A Chakramakkak [AIR 1973 SC 2090] the Supreme Court gave custody of the children to the mother because she was economically well off and hence, would be able to take care of the children. In Bhagya Lakshmi v. Narayan Rao [AIR 1983 Mad 9], the Madras High Court gave custody to the father, since he had the means to provide the best comfort and education to the children. In Ashok Samjibhai Dharod v. Neeta Ashok Dharod [II (2001) DMC 48 Bom] the Bombay High Court held that affluence of the father or his relatives is not a factor in his favour for giving him custody. Indeed, a large number of judgements have established precedents in favour of the mother. But as Parashar rightly notes, these decisions are also based on the judges' perceptions of who is a 'good' mother. Consequently women who do not fit such criteria would have difficulty claiming custody of children. 54 Archana Parashar, Welfare of Child in Family Laws-India and Australia, 1(1) Nalsar Law Review 49, 49 (2003). 2.3.11 The wide discretion available to judges under the welfare principle also means that certain issues that should merit consideration are not treated seriously while determining custody. Allegations of sexual abuse against female children by fathers, grandfathers or other male relatives are brushed aside without any investigation, if they appear improbable to the judge.56 Legal scholar and activist Flavia Agnes notes in this regard that "the courts must exercise their power with great prudence and caution, so that it does not result in violation of the basic human right of children, the right to life, which includes the right to live without fear and trauma."57 The determinants of the welfare standard should therefore be clearly laid down so as to prevent judges from disregarding certain issues while determining custody and access. 56 Flavia Agnes, Family Law II: Marriage, Divorce and Matrimonial Litigation (2011), Oxford University Press: New Delhi, Pp. 257-259. 57 Id., at 259. 2.3.12 This chapter has reviewed the legal framework governing guardianship and custody in India, and has identified two areas that require legislative reform. The next chapter discusses the concept of shared custody based on examples from other jurisdictions.
The Concept of Joint CustodyA. International Approaches to Joint Custody 3.1.1 Joint custody systems vary widely across the globe. A comparative review of different countries reveals a vast diversity of approaches. The term "joint custody" can refer to several different things: joint legal custody, joint physical custody, or a combination of both. The definition in the State of Virginia recognizes this:
"Joint custody" means (i) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child's primary residence may be with only one parent, (ii) joint physical custody where both parents share physical and custodial care of the child, or (iii) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child.5858 VA Code Ann. § 20-124.1. 3.1.2 Similarly, the State of Georgia defines joint custody as "joint legal custody, joint physical custody, or both joint legal custody and joint physical custody."59 59 Ga. Code Ann., § 19-9-6(4). 3.1.3 There is a similar distinction between sole legal custody and sole physical custody, although some States (including Virginia) combine them together.60 The State of California has the following definitions: "Sole legal custody" means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.61 "Sole physical custody" means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.62 60 VA Code Ann. § 20-124.1 ("'Sole custody' means that one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child."). 61 West's Ann. Cal. Fam. Code § 3006. 62 West's Ann. Cal. Fam. Code § 3007. 3.1.4 One of the unifying themes across the different shared parenting systems is the importance given to the best interest of the child.63 However, jurisdictions differ on how they apply this standard. Some have a presumption that shared parenting is in the best interest of the child-Australia's Family Law Act, for example, states that, "[W]hen making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child."64 Other jurisdictions allow for shared parenting but do not contain this presumption. Minnesota law explicitly states that "[T]here is no presumption for or against joint physical custody," with certain exceptions.65 Canada, South Africa, the U.K., and Kenya also have no presumption for or against joint custody.66 63 See, e.g., Canada Divorce Act, 1985, § 16(8) ("In making an order under this section, the court shall take into consideration only the best interests of the child...."); Australia Family Law Act, 1975, § 65AA (as amended 2006) ("[I]n deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration."); South Africa Children's Act, No. 38 of 2005, § 9; U.K. Children's Act, 1989, § 1(1). 64 Australia, Family Law Act, 1975 § 61DA (as amended); see also Idaho Code Ann. § 32-717B(4) ("[T[here shall be a presumption that joint custody is in the best interests of a minor child or children."). 65 M.S.A. § 518.17(2)(a). 66 Canada Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), § 16(4), (8); South Africa Children's Act, No. 38 of 2005, §§ 22, 23, 30; U.K. Children's Act, 1989, §§ 8, 11(4); Kenya Children's Act §§ 82(1), 83(1). 3.1.5 Many countries that allow (or even have a statutory preference for) shared parenting do not allow it in some cases. Where there is domestic violence or any sort of abuse, most jurisdictions have a presumption against shared parenting.67 Shared parenting is also disfavoured where parents have a particularly contentious relationship. As a US Court of Appeals noted in Braiman v Braiman:
Joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion. As a court-ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos. Braiman v. Braiman, 44 N.Y.2d 584 (1978) (citations omitted); see also Padgen and Padgen (1991) FLC 92-231 (Austr.) (setting preconditions for shared custody, including compatible parenting, mutual trust, co-operation, and good communication).67 Id. St. 32-717B(5) ("There shall be a presumption that joint custody is not in the best interests of a minor child if one (1) of the parents is found by the court to be a habitual perpetrator of domestic violence ...") (Idaho); Australia Family Law Act, 197 (as amended), § 61DA(2) (presumption that equal parental responsibility is in the best interest of the child does not apply if there are reasonable ground to believe that a parent has engaged in abuse or family violence). 3.1.6 Practical considerations are also relevant. Some jurisdictions consider geographical proximity when deciding an award of shared parenting. Padgen and Padgen (1991) FLC 92-231 (Austr.). Family courts in South Africa, for example, 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 where the parents live far apart.70 Also, the de facto living situation of child can be relevant-in the United Kingdom, shared residence orders "may be regarded as appropriate where it provides legal confirmation of the factual reality of a child's life." In re A,  EWCA Civ 867, ¶ 66. 70 A Barrat and S Burman,"Deciding the Best Interests of the Child" 118 South African Law Journal (2001). 3.1.7 A number of jurisdictions recognize the distinction between legal custody (the right to make major decisions for a child, such as decisions involving education, medical and dental care, religion, and travel arrangements)72 and physical custody (the right to provide routine daily care and control of the child).73 This distinction parallels the distinction between guardianship and custody in India. Some jurisdictions use other terms for this distinction. In Australia, for example, "parental responsibility"-defined as "the duties, powers, responsibilities and authority which, by law, parents have in relation to children"-is distinct from the amount of time the child spends with each of the parents.74 Similarly in France, "parental authority," which refers to "a set of rights and duties whose finality is the welfare of the child,"75 is distinct from a parent's right of access and lodging.76 Kenya distinguishes between "legal custody" and "actual custody."77 72 See V.A.M.S. 452.375(1)(2) ("'Joint legal custody' means that the parents share the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child, and, unless allocated, apportioned, or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities, and authority ...."); 15 V.S.A. § 664(1)(A) ("'Legal responsibility' means the rights and responsibilities to determine and control various matters affecting a child's welfare and upbringing, other than routine daily care and control of the child. These matters include but are not limited to education, medical and dental care, religion and travel arrangements. Legal responsibility may be held solely or may be divided or shared."). 73 See VA Code Ann. § 20-124.1 ("'Joint custody' means.... (ii) joint physical custody where both parents share physical and custodial care of the child...."); 15 V.S.A. § 664(1)(B) ("'Physical responsibility' means the rights and responsibilities to provide routine daily care and control of the child subject to the right of the other parent to have contact with the child. Physical responsibility may be held solely or may be divided or shared."); Ga. Code Ann., § 19-9-6(3) ("'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."). 74 Compare Austrl. Family Law Act 1975 § 61B ("In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children."), with Austrl. Family Law Act 1975 § 61DA (the presumption that parents have equal responsibility "does not provide for a presumption about the amount of time the child spends with each of the parents"). 75 France Civil Code Article 371-1. 76 France Civil Code Article 373-2-1 ("Where the welfare of the child so requires, the judge may commit exercise of parental authority to one of the parents. The exercise of the right of access and lodging may be refused to the other parent only for serious reasons."). 77 Kenya Children's Act, § 81(c)-(d). B. Joint Custody in India 3.2.1 Although joint custody is not specifically provided for in Indian law, it is reported by lawyers that Family Court judges do use this concept at times to decide custody disputes. Two examples of attempts to institutionalize shared parenting in India in recent times are noted below. A set of guidelines on 'child access and child custody,' prepared by the Child Rights Foundation, a Mumbai-based NGO, understands joint custody in the following manner:
child may reside alternately, one week with the custodial parent and one week with non-custodial parent, and that both custodial and non-custodial parent share joint responsibility for decisions involving child's long term care, welfare and development.7878 Child Rights Foundation, Child Access and Custody Guidelines (2011), available at http://www.mphc.in/pdf/ChildAccess-040312.pdf, p. 24. 3.2.2 Although the guidelines state that this understanding of joint custody is consistent with the CRC, it must be noted that there can be no straitjacket formula that can be applied universally to all cases of custody. 3.2.3 The second example of joint custody is found in a 2011 judgement of the Karnataka High Court, which used the concept to resolve a custody dispute involving twelve-year old boy. In KM Vinaya v. B Srinivas, MFA No. 1729/ 2011, Karnataka High Court, Judgement dated Sept. 13, 2013, a two-judge bench ruled that both parents are entitled to get custody "for the sustainable growth of the minor child." Joint custody was effected in the following manner:
In modern day custody battles, neither the father, as the traditional natural guardian, nor the mother, as the biologically equipped parent to care for the child of tender age, are routinely awarded custody. The principle, best interest of the child takes into consideration the existing living arrangements and home environment of the child. … Each case will be decided on its own merit, taking into account the overall social, educational and emotional needs, of the child.8181 Flavia Agnes, Family Law II: Marriage, Divorce and Matrimonial Litigation (2011), Oxford University Press: New Delhi, p. 255. 3.3.3 But despite this development in judicial attitude, we have ignored the idea that under certain favourable circumstances, the best interest of the child could also result from simultaneous association with both the parents. Since there is no inherent contradiction between pursuing the best interest of the child and the concept of shared custody, the law needs to provide for this option, provided certain basic conditions are met. 3.3.4 Third, as already mentioned, a number of institutions, including the judiciary, have already started engaging with the idea of shared custody. We have referred to some of these recent developments above. But currently this idea is being put into practice in a haphazard manner. There are several components to the idea of shared custody, such as clear determinants of the best interest of the child standard, the role of judges and mediators, parenting plans and so on. These must be laid down in the law, in order for shared custody to be a viable option that facilitates divorcing parents to mutually agree on the preferred custodial arrangement, without compromising on the welfare of the child. 3.3.5 In the legal systems of several Western countries that we have reviewed in this chapter, there is a presumption in favour of joint custody, and sole custody is awarded only in exceptional circumstances. We have already referred to the inequalities in parental roles, responsibilities and expectations that exists in our country. Therefore, we are not in favour of the law placing a presumption in favour of joint custody. As opposed to the case of guardianship, where we have recommended shared and equal guardianship for both parents, in this case, we are of the view that joint custody must be provided as an option that a decision-maker can award, if the decision-maker is convinced that it shall further the welfare of the child.
Mediation in Child Custody Cases4.1 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, Afcons Infra. Ltd. v. Cherian Varkey Constn., (2010) 8 SCC 24, ¶ 8. In the context of child custody, the focus of mediation is not to determine who is right or wrong, but rather to establish a solution that meets a family's needs and is in the best interest of the child.83 The benefits of mediating a child custody dispute are that both parents have input in determining custody and access arrangements for their children; the children feel more secure knowing that their parents are willing to continue working together to resolve family problems; parents are in the best position to decide what their children need; it helps parents develop some trust in each other, which allows for future negotiation on issues that arise; it is easier to work with a plan that parents have formulated themselves, rather than one that is imposed by the court; and it can help avoid a long and costly court battle.84 Mediation reportedly produces better outcomes for children after divorce.85 83 Terri Garner, Child Custody Mediation: A Proposed Alternative to Litigation, 1989 J. DISP. RES. 139, 139-40. 84 Family Conciliation Services-Frequently Asked Questions, Manitoba Family Services, http://www.gov.mb.ca/fs/childfam/family_conciliation_faq.html (last visited Mar. 23, 2015). 85 Danielle Gauvreau, Mediation versus Litigation: Examining Differences in Outcomes amongst the Children of Divorce, RIVERDALE MEDIATION, http://www.riverdalemediation.com/wp-content/uploads/2009/07/Gauvreau-Mediation-vs-litigation.pdf (last visited Mar. 23, 2015). A. Current Legal Framework for Mediation in India 4.2.1 Section 89 of the Code of Civil Procedure, 1908 provides that a court can formulate terms of a settlement and give them to the parties for their observation and, after receiving the observation of the parties, reformulate the terms and refer the same for arbitration, conciliation, judicial settlement (including settlement through Lok Adalat), or mediation. 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. Also, if at any stage, it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement. 4.2.2 Additionally, 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. The Family Courts have also been conferred with the power to adjourn the proceedings for any reasonable period to enable attempts to be made to effect settlement if there is a reasonable possibility. 4.2.3 There is a growing need of mediation for matrimonial disputes in India. In K. Srinivas Rao v. D.A. Deepa, AIR 2013 SC 2176 the Supreme Court stated that,
Quite often, the cause of the misunderstanding in a matrimonial dispute is trivial and can be sorted. Mediation as a method of alternative dispute resolution has got legal recognition now. We have referred several matrimonial disputes to mediation centres. Our experience shows that about 10 to 15% of matrimonial disputes get settled in this Court through various mediation centres. We, therefore, feel that at the earliest stage i.e. when the dispute is taken up by the Family Court or by the court of first instance for hearing, it must be referred to mediation centres. Matrimonial disputes particularly those relating to custody of child, maintenance, etc. are preeminently fit for mediation.4.2.4 Furthermore, the Mediation Training Manual,87 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.88 87 The Manual is available at http://supremecourtofindia.nic.in/MEDIATION%20TRAINING%20MANUAL%20OF%20INDIA.pdf 88 Mediation Training Manual, at p. 67, available at http://supremecourtofindia.nic.in/MEDIATION%20TRAINING%20MANUAL%20OF%20INDIA.pdf B. International Approaches to Mediation in Child Custody 4.3.1 Despite many differences in the law regulating divorce and child custody worldwide, there is a broad awareness that the best way to reorganize a family after separation involves a consensual/extrajudicial solution that minimizes conflict and encourages collaborative parenting.89 89 Giancarlo Tamanza et al, Separation and Divorce in Italy: Parenthood, Children's Custody, and Family Mediation, 51(4) Family Court Rev. 557, 557 (2013). 4.3.2 Virginia law specifies that, "Mediation shall be used as an alternative to litigation where appropriate."90 The goals of mediation "may include development of a proposal addressing the child's residential schedule and care arrangements, and how disputes between the parents will be handled in the future."91 However, in assessing the appropriateness of a referral for mediation, the court shall ascertain upon motion of a party whether there is a history of family abuse.92 The fee paid to a mediator is set by statute and is paid by the government.93 Although the statutory scheme does not expressly say so, it appears that courts have the obligation to ensure that a mediated agreement is in the best interest on the child.94 90 VA Code Ann. § 20-124.2(A). 91 VA Code Ann. § 20-124.2(A). 92 VA Code Ann. § 20-124.4. 93 VA Code Ann. § 20-124.4 ("The fee of a mediator appointed in any custody, support or visitation case shall be $100 per appointment and shall be paid by the Commonwealth from the funds appropriated for payment of appointments made pursuant to subsection B of § 16.1-267."). 94 See Va. Prac. Family Law § 15:14(i) (2014 ed.) (citing a case where "a trial judge concluded that it would be contrary to public policy to simply enforce an arbitrator's award without determining whether the award is in the best interests of the child, and, while the arbitrator's decision could be given weight, it could not be used to deprive the court of its jurisdiction to determine the child's best interests."). 4.3.3 South Africa law also encourages mediation. It states that, in any matter concerning a child, "an approach which is conducive to conciliation and problem-solving should be followed and a confrontational approach should be avoided."95 More specifically, a children's court may order mediation before deciding an issue, but it must consider several factors before doing so: the vulnerability of the child, the ability of the child to participate in the proceedings, the power relationships within the family, and the nature of any allegations made by the parties.96 Mediation cannot be used in a matter involving the alleged abuse of a child.97 Where parents reach an agreement through mediation, the court must confirm that the agreement is in the best interests on the child.98 Also, when divorced parents who are co-holders of parental rights and responsibilities are experiencing difficulties in the exercise of their rights, they must attempt to agree on a parenting plan before seeking the court's assistance.99 In developing a parenting plan, the parents must either seek assistance from certain specified people (e.g., a social worker) or go through mediation.100 95 Children's Act, No. 38 of 2005, § 6(4). 96 Children's Act, No. 38 of 2005, § 49. 97 Children's Act, No. 38 of 2005, § 71(2). 98 Children's Act, No. 38 of 2005, § 72. 99 Children's Act, No. 38 of 2005, § 33(2). 100 Children's Act, No. 38 of 2005, § 33(5). 4.3.4 In China, a court dealing with a divorce case "shall carry out mediation."101 However, mandatory mediation has been criticized as problematic in cases of domestic violence-mediated agreements in such cases will not be the product of negotiations between parties of equal bargaining power.102 101 Marriage Law of the People's Republic of China (1980), Article 32. 102 Charlotte Germane et al, Mandatory Custody Mediation and Joint Custody Orders in California: The Danger for Victims of Domestic Violence, 1(1) Berkeley J. Gender L. & Just. 175, 176 (2013); see generally Dennis P. Saccuzzo Et Al, Mandatory Custody Mediation: Empirical Evidence of Increased Risk for Domestic Violence Victims and their Children (2003), available at https://www.ncjrs.gov/pdffiles1/nij/grants/195422.pdf. 4.3.5 In Canada, family mediation is widely promoted as an alternative to litigation.103 The Divorce Act, 1985 requires every lawyer or advocate acting on behalf of a divorcing spouse to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of mediation facilities that might be able to assist with this.104 A lawyer must submit a certification to the court that he or she has discussed this with the client.105 In addition, Canadian family law provides that parents that cannot agree must attend a mediation information session before appearing before a judge.106 The session provides information on the mediation process, including the nature and objectives of mediation, the steps involved in the process, the role of the mediator, and the roles played by the spouses.107 After attending this session, the spouses can proceed with mediation or continue legal proceedings. Provincial laws also provide for mediation.108 In the province of Quebec, for example, divorcing couples that have children can obtain the services of a professional mediator during the negotiation and settlement of their application for separation, divorce, dissolution of the civil union, child custody, spousal or child support, or the review of an existing decision.109 Five hours are paid by the Family Mediation Service and another 2.5 hours can be added when a revision of an existing court judgement is needed.110 Some provincial laws also specify the duties of dispute resolution professionals111 and the required qualifications for family mediators.112 103 Francine Cyr et al, Family Life, Parental Separation, and Child Custody in Canada: A Focus on Quebec, 51(4) Family Court Rev. 522, 528 (2013). 104 Divorce Act, 1985, § 9(2). 105 Divorce Act, 1985, § 9(3). 106 Francine Cyr et al, Family Life, Parental Separation, and Child Custody in Canada: A Focus on Quebec, 51(4) Family Court Rev. 522, 528 (2013). 107 Id. 108 Id. 109 Id. 110 Id. 111 See, e.g., British Columbia Family Law Act, § 8, available at http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_11025_01. 112 See, e.g., British Columbia Family Law Act Regulations, B.C. Reg. 347/2012, §§ 4-5, available at http://www.bclaws.ca/civix/document/id/complete/statreg/331105891. 4.3.6 This chapter set forth the existing law in India regarding mediation in family matters and how such mediation is implemented in other countries. The following chapter will discuss other important considerations for deciding child custody cases.
Considerations for Deciding Child Custody Cases5.1 As discussed earlier, the guiding principle in child custody cases is the welfare of the child. However, it can be difficult to determine, in a given case, what specific custody or visitation arrangement would be in the welfare of the child-this standard gives little practical guidance.113 Because of this, it is important to have guidelines for judges and other decision makers on how to implement this standard. Several organizations have published standards and guidelines for conducting child custody evaluations.114 The following analysis is based primarily on states in the U.S. because they were found to have the most fully developed guidelines.115 113 Laura Woodward Tolle et al, Improving the Quality of Child Custody Evaluations : A Systematic Model 2 (Springer 2012) (noting "the lack of clarity and explication of the key standards underlying these [cases]-the best interests of the child"). 114 Laura Woodward Tolle et al, Improving the Quality of Child Custody Evaluations : A Systematic Model 15 (Springer 2012). 115 A number of other countries do not have written guidelines at all (at least, not in an easily accessible form). Guidelines from U.S. states were readily available and found to address all the major issues and challenges that might arise during child custody disputes. A. Factors to Consider for the Best Interest Standard 5.2 A number of jurisdictions have statutes that enumerate specific factors to guide courts when they consider the best interests of a child. Generally, these factors relate to: the physical and mental condition of the child; the physical and mental condition of each parent; the child's relationship with each parent; the needs of child regarding other important people (siblings, extended family members, peers, etc.); the role each parent has played and will play in the child's care; each parent's ability to support the child's contact and relationship with the other parent; each parent's ability to resolve disputes regarding the child; the child's preference; any history of abuse; and the health, safety, and welfare of the child.116 However, these factors are not exhaustive, and some statutes expressly indicate that courts should consider "other factors as the court deems necessary and proper to the determination."117 116 See Va. Code Ann. § 20-124.3; Colo. Rev. Stat. Ann. § 14-10-124(1.5)(a); West's Ann. Cal. Fam. Code § 3011. 117 Va. Code Ann. § 20-124.3(10); see also 15 V.S.A. § 665 ("[T[he Court shall be guided by the best interests of the child, and shall consider at least the following factors:") (emphasis added); COLO. Rev. Stat. Ann. § 14-10-124(1.5)(a) ("In determining the best interests of the child for purposes of parenting time, the court shall consider all relevant factors, including...."). B. Determining the Preference of the Child 5.3.1 A child's preference in matters of custody is generally taken into consideration if the child is sufficiently intelligent and mature.118 The preference must also be reasonable-the child's wishes will not be considered by the court if, e.g., it is based on which parent's home has better toys.119 In determining the preference of the child, some courts will interview the child in court chambers (after asking for each parent's permission to do so outside their presence).120 The attorneys may be present, but they may or may not be allowed to ask questions during the interview.121 The judge will usually make a record of the interview (e.g., by using a court reporter),122 but the judge can also order that the interview be kept confidential if doing so would be in the best interest of the child.123 118 Va. Code Ann. § 20-124.3(8) (courts should consider the "reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference"); Colo. Rev. Stat. Ann. § 14-10-124(1.5)(a)(II) (courts should consider the "wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule"); South Africa Children's Act, No. 38 of 2005, § 10 ("Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration."). 119 Aaron Thomas, A Child's Preference in Arizona Custody Proceedings, Divorcenet, http://www.divorcenet.com/resources/a-childs-preference-arizona-custody-proceedings.html (last visited May 5, 2015). 120 Aaron Thomas, A Child's Preference in Maryland Custody Proceedings, Divorcenet, http://www.divorcenet.com/resources/a-childs-preference-maryland-custody-proceedings.html (last visited May 5, 2015); Slepkow, Slepkow & Associates, Inc., Child's Preference and Awarding Custody in Rhode Island, Hg.Org Legal Resources, http://www.hg.org/article.asp?id=18641 (last visited May 5, 2015). 121 Id. 122 Slepkow, Slepkow & Associates, Inc., Child's Preference and Awarding Custody in Rhode Island, Hg.Org Legal Resources, http://www.hg.org/article.asp?id=18641 (last visited May 5, 2015). 123 Aaron Thomas, A Child's Preference in Arizona Custody Proceedings, Divorcenet, http://www.divorcenet.com/resources/a-childs-preference-arizona-custody-proceedings.html (last visited May 5, 2015). 5.3.2 Alternatively, instead of an interview, the court can appoint a guardian ad litem to represent the child's interests.124 The guardian ad litem can submit a report regarding what is in the child's best interests, including the child's wishes for custody.125 The guardian ad litem can also testify about the child's preferences.126 The court can also have a social worker or other mental health professional testify about the child's opinion.127 124 Aaron Thomas, A Child's Preference in Maryland Custody Proceedings, Divorcenet, http://www.divorcenet.com/resources/a-childs-preference-maryland-custody-proceedings.html (last visited May 5, 2015); Slepkow, Slepkow & Associates, Inc., Child's Preference and Awarding Custody in Rhode Island, HG.ORG LEGAL RESOURCES, http://www.hg.org/article.asp?id=18641 (last visited May 5, 2015). 125 Id. 126 Aaron Thomas, A Child's Preference in Maryland Custody Proceedings, Divorcenet, http://www.divorcenet.com/resources/a-childs-preference-maryland-custody-proceedings.html (last visited May 5, 2015). 127 Id. C. Access to Records of the Child 5.4 Both parents are generally allowed access to a child's records (medical, educational, etc.).128 However, where disclosure of information (for example, the present address of a parent or the child) could present a risk of harm, the court may prevent disclosure of the information.129 128 See, e.g., N.C.G.S.A. § 50-13.2(b) ("Absent an order of the court to the contrary, each parent shall have equal access to the records of the minor child involving the health, education, and welfare of the child."); W. Va. Code, § 48-9-601; M.G.L.A. 208 § 31 ("The entry of an order or judgement relative to the custody of minor children shall not negate or impede the ability of the non-custodial parent to have access to the academic, medical, hospital or other health records of the child...."). 129 M.G.L.A. 208 § 31 ("[I]f nondisclosure of the present or prior address of the child or a party is necessary to ensure the health, safety or welfare of such child or party, the court may order that any part of such record pertaining to such address shall not be disclosed to such non-custodial parent."). D. Grand-parenting Time 5.5 When evaluating the best interest of a child for a custody order, courts are generally empowered to consider the child's relationship to friends, extended family members (including grandparents), and other important persons. In many jurisdictions, such relationships are expressly listed in the statutory factors for the best interest of a child standard. Virginia state law, for example, requires a court to consider "[t]he needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members."130 Thus, courts can provide legal visitation rights to grandparents where appropriate. 130 Va. Code Ann. § 20-124.3; Colo. Rev. Stat. Ann. § 14-10-124(1.5)(a)(III) (a court must consider "The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child's best interests"); 15 V.S.A. § 665(b)(7) (a court must consider "the relationship of the child with any other person who may significantly affect the child"). E. Mediation 5.6 As discussed earlier in the report, mediation is the widely preferred method for resolving custody and other parenting disputes,131 and many jurisdictions provide guidelines as to when and how mediation should be employed in such disputes. In cases involving abuse or other mistreatment, for instance, mediation is not seen as appropriate.132 Some jurisdictions provide free mediation (at least to a point) for divorcing couples, which can further encourage collaborative resolution (as an alternative to costly litigation).133 131 See supra Ch. IV. 132 Id. 133 Id. F. Relocation 5.7 When both parents have legal rights regarding a child, relocation disputes can present a challenge. On the one hand, in today's highly mobile society, parents should be allowed to relocate for job opportunities or other important considerations. On the other hand, such relocation can interrupt the other parent's visitation schedule with the child. Courts generally solve such disputes by resorting to several principles. First, in some jurisdictions, a parent does not need permission (either from the court or the other parent) to relocate if it is only a local move or it would not affect the other parent's visitation schedule.134 Second, a parent who intends to relocate must give advance written notice to the other parent. Virginia, for example, requires thirty days advance written notice.135 This gives the other parent time to contest the move in court. The other key consideration is whether the proposed relocation is in the best interest of the child.136 A court may also consider: whether the relocation is for a legitimate purpose; each parent's reasons for seeking or opposing the relocation; the quality of the relationships between the child and each parent; the impact of the relocation on the quantity and the quality of the child's future contact with the non-relocating parent; the degree to which the relocating parent's and the child's life may be enhanced economically, emotionally and educationally by the relocation; and the feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements.137 134 Utah Code Ann. § 30-3-37(1) ("For purposes of this section, 'relocation' means moving 150 miles or more from the residence of the other parent."); Colo. Rev. Stat. Ann. § 14-10-129(1)(a)(II) (requiring court approval for relocations "that substantially change[ ] the geographical ties between the child and the other party"). 135 VA. CODE ANN. § 20-124.5; see also Colo. Rev. Stat. Ann. § 14-10-129(1)(a)(II) ("The party who is intending to relocate with the child to a residence that substantially changes the geographical ties between the child and the other party shall provide the other party with written notice as soon as practicable of his or her intent to relocate...."); UTAH CODE ANN. § 30-3-37(2) ("The relocating parent shall provide 60 days advance written notice of the intended relocation to the other parent."). 136 Va. Prac. Family Law § 15:11 (2015 ed.) (discussing relocation standards in Virginia); Utah Code Ann. § 30-3-37(4) ("In a hearing to review the notice of relocation, the court shall, in determining if the relocation of a custodial parent is in the best interest of the child, consider any other factors that the court considers relevant..."). 137 CONN. GEN. STAT. ANN. § 46b-56d(b). G. Decision Making 5.8 There are several key areas that should be addressed in a custody order or parenting plan-these are common areas of dispute, so it is best if there are clear rules specifying each parent's role (i.e., which decisions may be made individually, and which must be made jointly):
1. Medical: whether the child is to be hospitalized, and whether a non-emergency surgical procedure is to be performed on the child.
2. Education: the choice of school, enrichment classes, courses, and subjects, and whether the child is to attend a particular school trip or outing, or tuition.
3. Religion: the religious instruction of the child, attendance at places of worship, undergoing religious ceremonies, etc.
4. Extra-curricular activities: choice of extra-curricular activities, taking into consideration the child's interests and aptitude.
5. Travelling with one parent: where the child will spend holidays, and information that the parent has to provide to the other parent (e.g., a detailed itinerary).H. Parenting Plan 5.9 A number of jurisdictions require divorcing parents (either jointly or individually) to submit a shared parenting plan to the court. The plan must address major areas of decision making, including: the child's education; the child's health care; religious upbringing; procedures for resolving disputes between the parties with respect to child-raising decisions and duties; and the periods of time during which each party will have the child reside or visit with him, including holidays and vacations, or the procedure by which such periods of time shall be determined.138 Some jurisdictions provide additional guidance regarding communication (between parents and between the child and the non-custodial parent); transportation to and from the other parent's residence; what to do if a parent wishes to relocate; how to change scheduled parenting time; and exchanging information about the child.139 The parenting plan itself is not a legal document; it must be approved by a court to have legal effect.140 138 Mass. Gen. Laws ch. 208, § 31; Wash. Rev. Code § 26.09.184. 139 See Domestic Relations Committee, Indiana Parenting Time Guidelines (2013), § 1, available at http://www.in.gov/judiciary/rules/parenting/#_Toc348614670. 140 Mass. Gen. Laws ch. 208, § 31 ("At the trial on the merits, the court shall consider the shared custody implementation plans submitted by the parties. The court may issue a shared legal and physical custody order and, in conjunction therewith, may accept the shared custody implementation plan submitted by either party or by the parties jointly or may issue a plan modifying the plan or plans submitted by the parties. The court may also reject the plan and issue a sole legal and physical custody award to either parent."); Wash. Rev. Code § 26.09.187. I. Visitation 5.10.1 A number of jurisdictions have detailed visitation schedules that courts can use verbatim or modify as needed. These serve as templates so that the court does not have to start from scratch. Although these sample schedules vary across jurisdictions, there are some common themes. Generally, the schedule will depend on the child's age and the distance between the parents' homes.141 There must be a fair allocation of holidays, birthdays, and school vacations. A child must have time with his/her siblings and other important people in the child's life (grandparents, etc.). A parent's ability to care for a young child (especially infants) may be considered. Some basic options for scheduling parenting time are:
Summary of Recommendations6.1 The recommendations of the Law Commission in this report are captured in the Hindu Minority and Guardianship (Amendment) Bill, 2015, and the Guardians and Wards (Amendment) Bill, 2015, which are appended to the report. The Bills, respectively, amend the Hindu Minority and Guardianship Act, 1956, and the Guardians and Wards Act, 1890. In this regard, the Law Commission also makes incidental reference to some of the recommendations of the 83rd report (1980) of the Law Commission, entitled 'The Guardians and Wards Act, 1890 and certain provisions of the Hindu Minority and Guardianship Act, 1956,'149 as well as the 133rd report (1989) of the Law Commission, entitled 'Removal of discrimination against women in matters relating to guardianship and custody of minor children and elaboration of the welfare principles.'150 149 Law Commission of India, 83rd Report, April (1980), available at http://lawcommissionofindia.nic.in/51-100/Report83.pdf 150 Law Commission of India, 133rd Report, August (1989), available at http://lawcommissionofindia.nic.in/101-169/Report133.pdf 6.2 The Commission provides detailed legislative text by recommending the insertion of a new chapter IIA dealing with 'Custody, Child Support and Visitation Arrangements'. The Commission also provides specific guidelines to assist the court in deciding such matters, including processes to determine whether the welfare of the child is met; procedures to be followed during mediation; and factors to be taken into consideration when determining grants for joint custody. The recommendations are discussed in detail in the following pages. A. Amendments to the Hindu Minority and Guardians Act, 1956 6.3 The Law Commission recommends the following amendments to this Act:
The Hindu Minority and Guardianship (Amendment) Bill, 2015A Bill further to amend the Hindu Minority and Guardianship Act, 1956 Be it enacted in the Sixty-sixth year of the Republic of India:- 1. Short Title - This Act may be called the Hindu Minority and Guardianship (Amendment) Act, 2015. 2. Amendment of Section 6 - In the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the principal Act) in section 6,
(1) for clause (a), the following clause shall be substituted, namely:-
"(a) in the case of a boy or an unmarried girl - the mother and the father;";
(2) the Explanation shall be numbered as Explanation 1, and after the Explanation as so numbered, the following Explanation shall be inserted, namely:-
"Explanation 2. - For the purpose of clause (a), unless joint custody is granted by the court under Chapter IIA of the Guardians and Wards Act, 1890, the custody of a minor who has not completed the age of five years shall ordinarily be with the mother."3. Substitution of New Section for Section 7 - In the principal Act, for section 7, the following section shall be substituted, namely:-
"(7) Natural guardianship of adopted child. - The natural guardianship of an adopted child who is a minor passes, on adoption, to the adoptive mother and father."
The Guardians and Wards (Amendment) Bill, 2015A Bill further to amend the Guardians and Wards Act, 1890 Be it enacted in the Sixty-sixth year of the Republic of India:- 1. Short Title - This Act may be called the Guardians and Wards (Amendment) Act, 2015. 2. Amendment of Section 17 - In the Guardians and Wards Act, 1890 (hereinafter referred to as the principal Act), in section 17,
(i) for sub-section (1), the following sub-section shall be substituted, namely:-
"(1) In appointing or declaring the guardian of a minor, the welfare of the minor shall be the paramount consideration.";
(ii) after sub-section (1), the following sub-section shall be inserted, namely:-
"(1A) Subject to the provisions of sub-section (1), the court shall have due regard to the law to which the minor is subject, in appointing or declaring the guardian of that minor."3. Amendment of Section 19 - In the principal Act, in section 19, after clause (c), the following proviso shall be inserted, namely:-
"Provided that in determining whether a person is unfit to be a guardian under clause (a) or clause (b), the welfare of the minor as required under sub-section (1) of section 17 shall be the paramount consideration."4. Substitution of New Section for Section 25 - In the principal Act, for section 25, the following section shall be substituted, namely:- "25. Proceedings for custody of ward.
(1) Notwithstanding anything contained in section 19, if a ward leaves or is removed from the custody of a guardian of his person, or is not in the custody of the guardian entitled to such custody, the court, if it is of the opinion that it will be for the welfare of the ward to return to the custody of his guardian or to be placed in his custody, may make an order for his return, or for his being placed in the custody of the guardian, as the case may be.
(2) For the purpose of enforcing the order, the court may exercise the power conferred on a Magistrate of the first class by section 97 of the Code of Criminal Procedure, 1973.
(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.
(4) In making an order under this section, the court shall have regard to the welfare of the ward as the paramount consideration.
(5) The court shall not make an order under this section in respect of a child of fourteen years or over, without taking into consideration the preference of the child."5. Insertion of New Chapter - In the principal Act, after Chapter II, the following Chapter IIA shall be inserted, namely:-
Custody, Child Support and Visitation Arrangements19A. Objectives of the Chapter. The objectives of this Chapter are to ensure that the welfare of a minor is met by:-
(a) ensuring that the child has the benefit of both parents having a meaningful involvement in his life, to the maximum extent consistent with the welfare of the child;
(b) ensuring that the child receives adequate and proper parenting to help achieve his full potential;
(c) ensuring that the parents fulfil their duties, and meet their responsibilities concerning the care, welfare and development of the child;
(d) giving due consideration to the changing emotional, intellectual and physical needs of the child;
(e) encouraging both the parents to maintain a close and continuing relationship with the child, and to cooperate in and resolve disputes regarding matters affecting the child;
(f) recognising that the child has the right to know and be cared for by both the parents, regardless of whether the parents are married, separated, or unmarried; and
(g) protecting the child from physical or psychological harm or from being subjected to, or exposed to, any abuse, neglect or family violence.19B. Applicability of this Chapter. The provisions of this Chapter shall apply to all proceedings involving parents related to custody and child support, including such proceedings arising under the Indian Divorce Act, 1869, the Parsi Marriage and Divorce Act, 1936, and the Hindu Marriage Act, 1955. 19C. Definitions. For the purpose of this Chapter:-
(a) "Joint custody" is where both the parents:-
i. share physical custody of the child, which may be equally shared, or in such proportion as the court may determine for the welfare of the child; and
ii. equally share the joint responsibility for the care and control of the child and joint authority to take decisions concerning the child; and
(b) "Sole custody" is where one parent retains physical custody and responsibility for the care and control of the child, subject to the power of the court to grant visitation rights to the other parent.19D. Award of custody.
(1) In a proceeding to which this Chapter applies, the court may order joint custody or sole custody consistent with the welfare of the child.
(2) In determining whether an order under this section will be for the welfare of the child, the court shall have regard to the guidelines specified in the Schedule.
(3) Subject to the welfare of the child being the paramount consideration, the court may modify an order under this section, and record the reasons for doing so.19E. Power to pass additional orders. The court shall have the power to pass any additional or incidental orders necessary to effectuate and enforce any order relating to the custody of the child. 19F. Mediation.
(1) The court will ordinarily refer the parents to the court-annexed mediation centre or, in the absence thereof, to such person as the court may appoint as mediator, either at the commencement of, or at any stage during, the proceedings under this Chapter.
(2) A mediator to which parents are referred to under sub-section (1) must possess relevant professional qualifications or training in mediation, and sufficient skill and experience in mediation relating to family disputes.
(3) For the purpose of this section, every High Court and District Court and Family Court shall maintain a list of court-annexed mediation centres or individual mediators.
(4) The court-annexed mediation centres or individual mediators shall be identified and paid remuneration in accordance with a scheme prepared for this purpose by the concerned High Court, in consultation with the respective State Governments.
(5) For the purpose of ordering or performing any mediation under this section, the court and the appointed mediator shall have regard to the guidelines specified in the Schedule.
(6) The court may, where it considers appropriate or necessary, seek assistance from a trained and experienced professional to undertake an independent psychological evaluation of the child.
(7) A mediation ordered by the court under this section must ordinarily conclude not later than sixty days from the date of such order, unless extended by the court, where necessary.19G. Child support.
(1) A court may pass appropriate orders for the maintenance of children, and fix an amount that is reasonable or necessary to meet the living expenses of the child, including food, clothing, shelter, healthcare, and education.
(2) For the purpose of determining reasonableness or necessity, the court may take into consideration the following factors, namely:-
(a) the financial resources of each of the parents;
(b) the standard of living that the child would have had if the marriage had remained intact;
(c) the physical and emotional condition of the child;
(d) the particular educational and healthcare needs of the child; and
(e) any other factors that the court considers fit.
(3) An order of the court under this section must subsist till the child reaches 18 years of age.
(4) Notwithstanding anything contained in sub-sections (1), (2) and (3), the court may make such further orders as it considers fit, including:-
(a) requiring the payment of a sum greater than the sum determined under sub-section (1);
(b) requiring the subsistence of an order for a duration longer than as provided under sub-section (3), but such order shall not subsist in any case beyond such time as the child reaches 25 years of age;
(c) requiring the subsistence of an order under sub-section (3) beyond such time as the child reaches 25 years of age in case of a child with mental or physical disability; and
(d) making the estate of a parent, who dies during or after the conclusion of proceedings under this section, liable for obligations under the order passed by the court."6. Insertion of Schedule - In the principal Act, the following Schedule shall be inserted at the end, namely:-
Guidelines for Custody, Child Support and Visitation Arrangements
I. Factors to be Considered for Grant of Joint Custody(1) In making an order for joint custody under Chapter IIA, the court shall have regard to the following, namely:-
a. whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child;
b. whether each of the parents is willing and able to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
c. whether the parents are able to jointly design and implement a day-to-day care plan that fosters stability;
d. the maturity, lifestyle and background (including culture and traditions) of the child and parents, and any other characteristics that the court thinks are relevant;
e. the extent to which each parent has fulfilled, or failed to fulfil, his responsibilities as a parent;
f. the extent to which the parents are able or unable to find a reasonable way of working together;
g. the extent to which the higher income parent is willing to support in creating similar standards of living in each parental home;
h. the child's existing relationship with each parent, siblings, and other persons who may significantly affect the child's welfare;
i. the needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
j. any family violence involving the child or a member of the child's family;
k. whether the child is capable of forming an intelligent preference; and
l. any other fact or circumstance that the court thinks is relevant.(2) The court shall direct the parents to conduct an annual review of the welfare of the child and the income of each parent, and to file the same before the court.
II. Determining Preference of the Child(1) In determining the preference of the child for any purpose under this Act, the court shall take the following matters into consideration, namely:-
a. whether the child is of an age and maturity to indicate intelligent preference;
b. the extent to which the child has an understanding of the circumstances surrounding the court proceedings;
c. whether the child has had a history of expressing an intelligent preference;
d. whether any preference of the child so expressed was based on the fact that the child recently spent an extended period of time with either parent; and
e. whether the child understands the consequences of the preference that he has expressed.(2) In conducting an interview with the child, the court may, if it considers fit in the circumstances:-
a. decide who will be present when the court interviews the child, and if necessary, speak to the child alone, in the absence of the parents or their legal representatives; or
b. request the presence of a child psychologist, a mediator, or any other specific person identified by the court.(3) The court shall make a record of the interview with the child, and may keep such record confidential if the court determines that it is in the welfare of the child. (4) The court or any other person shall not, in any circumstance, require or compel the child to express his views in relation to any matter.
III. Access to Records of the Child(1) Unless limited by an order of the court, or any other provision of law, neither parent, regardless of whether such parent has custody of the child or not, shall be denied access to any information about their minor child, including medical, dental, and school records. (2) The court may, in exceptional circumstances, after an opportunity of being heard, order specific information to be withheld from a parent. (3) In the case of medical records, the court may, if it considers fit, deny access to a parent if the physician or child psychologist treating the child makes a written statement that any such access by the requesting parent would cause substantial harm to the child or another person.
IV. Grand-Parenting Time(1) A child's grandparent may apply to the court for a grand-parenting time order under one or more of the following circumstances, namely:-
a. the parents of the child are divorced or have separated, or proceedings for divorce or separation are pending before the court; or
b. the child's parent, who is the daughter or son of the grandparent, is deceased; or
c. the grandparent has, in the past, provided an established custodial environment for the child, whether or not the grandparent had custody under a court order.(2) An order for grandparenting time may be issued only after giving due notice, and an opportunity of being heard, to both the parents. (3) Before issuing an order for grand-parenting time, the court shall determine whether such an order is required for the welfare of the child. (4) In determining the welfare of the child under this part, the court shall consider the following, namely:-
a. the love, affection, and other emotional ties existing between the grandparent and the child;
b. the grandparent's mental and physical health;
c. the child's intelligent preference;
d. the willingness of the grandparent, except in the case of abuse or neglect, to encourage a close relationship between the child and the parent or parents of the child; and
e. any other factor relevant to the welfare of the child.
V. Mediation(1) The objective of mediation under Chapter IIA is to assist the parties to arrive at an agreement regarding the welfare of the child, and designing an implementation plan to ensure the welfare of the child. (2) Where there are undecided issues in proceedings under Chapter IIA, a court may direct the parties to undergo mediation, resolve the issues, and then seek approval of the court. (3) It is the role of the mediator to-
a. encourage the parties to co-operate;
b. assist the parents in realising their responsibilities and duties towards the welfare of the child; and
c. in case a joint custody order is likely to be issued, work with the parties to resolve, in a mutually acceptable manner, related issues, including, but not limited to, shared parenting time and shared responsibilities for decision making.(4) If either party applies to the court to modify an order issued under Chapter IIA, the court may direct the parties to undergo mediation, to arrive at an arrangement that will work for the concerned parties.
VI. Relocation(1) A parent intending to relocate shall give thirty days advance written notice to the other parent. (2) In case the relocation is opposed, the court must determine if the proposed relocation is for the welfare of the child. (3) In determining the welfare of the child in cases of relocation, the court shall take into consideration the following factors, namely:-
a. whether the relocation is for a legitimate purpose;
b. each parent's reasons for seeking or opposing the relocation;
c. the quality of the relationships between the child and each parent;
d. the impact of the relocation on the quantity and the quality of the child's future contact with the non-relocating parent;
e. the degree to which the relocating parent's and the child's life may be enhanced economically, emotionally and educationally by the relocation; and
f. the feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements.
VII. Decision Making(1) An order for custody of a child made by the court under Chapter IIA shall clearly address the following issues, amongst others:-
a. the religious instruction of the child, attendance at places of worship, undergoing religious ceremonies, and related matters;
b. the choice of school, subjects, classes, courses, and tuition, and whether the child is to attend a particular school trip outside the local area;
c. whether the child is to be hospitalized, and whether a non-emergency surgical procedure is to be performed on the child;
d. the choice of extra-curricular activities, taking into consideration the child's interests and aptitude; and
e. where the child will spend holidays, and in cases where required, the information that one parent has to provide to the other parent.(2) The court can either make a specific decision (e.g., the child will attend a given school) or allocate decision-making responsibility for a given issue to one parent or both together.
VIII. Parenting Plan(1) The objectives of a parenting plan are to-
(a) minimise the child's exposure to harmful parental conflict; and
(b) encourage parents to mutually agree on the division of responsibilities of the child's upbringing through agreements in the parenting plan, rather than by relying on court intervention.(2) In designing a parenting plan, the parents must ensure that it is for the welfare of the child, and that-
a. the day-to-day needs of the child are met;
b. any special needs that the child may have are met;
c. the child gets to spend sufficient time with each parent so as to get to know each parent, as far as possible;
d. there is minimal disruption to the child's education, daily routine and association with family and friends; and
e. transitions from one parental home to another are carried out safely and, effectively.(3) A parenting plan may deal with one or more of the following, namely:-
a. the parent or parents with whom the child is to live;
b. the time the child is to spend with the other parent;
c. the allocation of parental responsibility for the child;
d. the manner in which the parents are to consult with each other about decisions relating to parental responsibility;
e. the communication the child is to have with other persons;
f. maintenance of the child;
g. the process to be used for resolving disputes about the terms or operation of the plan;
h. the process to be used for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan;
i. any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for the child.(4) The parenting plan must be voluntarily and knowingly arrived at by each parent. (5) The court shall not ordinarily interfere with the division of responsibilities between parents reflected in the parenting plan, unless they are ex facie inequitable. (6) If the initial parenting plan does not cover certain issues, the parents may approach the court to modify the terms of the plan to address new subjects of decision-making.
IX. Visitation(1) An order made by the court regarding visitation must ensure that-
a. a child has frequent and continuing contact with both parents, when appropriate, and also with extended family and friends; and
b. both parents have equal opportunities to spend quality time with the child, including during holidays and vacations.(2) For the purpose of determining visitation rights and times, the court may take the following factors into consideration, namely:-
a. the age of the child;
b. the distance between the parental homes;
c. any holidays, including weekends, festivals and religious occasions, as well as longer school vacations; and
d. any other commitments of the parents, which might affect their ability to spend quality time with their child.(3) The court may decide the time, manner and place to exercise visitation rights, and may take into consideration any visitation rights plan that has been submitted to the court by the parents. (4) A court may limit, suspend, or otherwise restrict, the visitation rights granted to a parent, if the court has reasonable basis to believe that circumstances make such restriction necessary for the welfare of the child, or if there is serious or repeated breach by a parent of any duties imposed by the court in this regard."