India may opt for shared child custody
Pradeep Thakur,TNN | Nov 11, 2014
NEW DELHI: India is moving towards adopting a preference for shared parentage systems over sole custody arrangements for child custody disputes post-divorce. This is similar to arrangements followed in US, Canada, Australia, UK and many other countries.
The law commission has initiated a study and floated a consultation paper on its website to seek suggestions from public before it frames guidelines for joint custody of children and shared parentage. The recommendation is likely to be finalized by January and submitted to the government to bring in appropriate amendments in the laws concerned by the budget session next year.
Speaking to TOI, law commission chairman Justice A P Shah said the commission will formulate detailed guidelines that would be part of the act to be made compulsory for the parents to follow as part of the shared parentage system.
Justice Shah said the terms ‘joint’ or ‘shared’ do not mean giving physical custody to parents with ‘mechanical’ equality, and it is here that judicial pragmatism and creativity is going to play a huge role in developing this concept further.
“We may therefore consider the wisdom and relevance of re-shaping the two legislations,” the law panel chairman said.
Presently, the custody of children in divorce cases are determined by two laws – the Guardians and Wards, Act, 1890 and the Hindu Minority and Guardianship Act, 1956. Both the acts are silent on joint custody or shared parentage for children of divorcing parents. While the 1890 law deals with the appointment of a person as a guardian of a minor both in respect of his/her person or property, it provides for any person to apply to be appointed as a guardian of a minor.
The Hindu Minority and Guardianship Act, 1956, enumerates the classes of natural guardians of a Hindu minor and provides that the welfare of the minor will be of paramount consideration but doesn’t say anything on shared parentage like the 1890 law.
At present, in judicial practice, there is neither a presumption that father is the natural guardian nor a presumption that mother is biologically better equipped to care for the minor. “The judicial approach on child custody has evolved to such a level, that the context is favorable to take the discussion to the logical next step, which is the idea of shared parenting,” the consultation paper says. Though shared parenting or joint custody is not specifically spelled out in Indian law, it is reported that family court judges do use this concept at times to decide custody battles.
In US there are generally two forms of joint custody — joint legal custody and joint physical custody. Joint legal custody “means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care….” 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”.
In Canada under the Divorce Act, the court may grant an order of joint custody “in the best interests of the child”. Australia has a presumption of shared equal parental responsibility when devising parenting orders post-divorce. The UK has specific requirements for awarding shared residence orders (joint custody arrangements).