IN THE HIGH COURT OF KARNATAKA AT

BANGALORE

W.P. No.24360/2023 (PIL)

BETWEEN

High Court of Karnataka …Petitioner

AND

Nil …Respondents

INDEX

S No Details Page
1. Report of the Amicus Curiae on
Guidelines for Child Custody Disputes

2. Report in Guardianship and Custody

Laws in India – Report No. 257 – May
2015

3. Order of the High Court of Himachal

Pradesh at Nainital dated 06.03.2024

4. Child Access and Custody Guidelines

along with Parenting Plan

Bangalore Advocate for Petitioner

Date:
 1

IN THE HIGH COURT OF KARNATAKA AT

BANGALORE

W.P. No. 24360/2023 (PIL)

BETWEEN

High Court of Karnataka …Petitioner

AND

Nil …Respondents

Report of the Amicus on Guidelines for Child

Custody Disputes

A. Extant Legislation relating to Child Custody in India

1. Child custody matters in India are governed by matrimonial

laws if it arises in the context of a matrimonial proceeding
and in other cases under legislation specifically for this
purpose such as the Guardian and Wards Act etc.

2. All matrimonial legislation, with the exception of the

Dissolution of Muslim Marriages Act, 1939, contain
provisions regarding the custody of children in a matrimonial
dispute. These provisions are found in Special Marriage Act,
section 38; Hindu Marriage Act, section 26; Parsi Marriage
and Divorce Act, section 49; Indian Divorce Act, sections 41
to 44. As noted, the Dissolution of Muslim Marriages Act,
1939, is silent on the issue of custody. Accordingly, section
 2

2 of the Muslim Personal Law (Shariat) Application Act,

1937, which includes guardianship as one of the subjects
where the Muslim personal law (Shariat), will apply.

3. Custody disputes which arise outside the context of

matrimonial dispute are governed by the Guardians and
Wards Act and, in the case of Hindus the Hindu Minority and
Guardianship Act.

B. International Treaties and Conventions

4. India is a signatory state to the United Nations Convention

on the Rights of the Child, 1989 which emphasizes on the
aspect of “best interest of the child” whilst determining child
custody matters which has become a part of Indian
jurisprudence.

C. Studies Conducted:

5. The Law Commission of India has suggested Reforms in

Guardianship and Custody Laws in India. A copy of the
report is produced herewith as Annexure A. Although the
recommendations made have not transformed to
amendments to the relevant laws, the High Court of
Uttarkhand at Nainital vide order dated 06.03.2024 directed
that the recommendations made must be followed whilst
dealing with cases relating to matrimonial disputes, custody
cases etc. A copy of the order dated 06.03.2024 is
produced herewith as Annexure B. A reading of the
recommendations made by the Law Commission at Chapter
 3

V has very important considerations laid down which are

summarised as follows:

a. Factors to consider for best interests of child.

b. Determining preference of the child.
c. Access to records of the child.
d. Grand Parenting time
e. Mediation
f. Relocation
g. Decision Making which involve various factors such as
(i) medical; (ii) education; (iii) religion; (iv) extra
curricular activities; (v) travel with one parent;
h. Parenting Plan
i. Visitation

Chapter V will serve as a ready reckoner for Courts to

utilise whilst determining issues of custody and visitation.
Several additional recommendations have made been
made in this Report as well.

6. Another NGO, Child Rights Foundation has also published a

report called Child Access and Custody Guidelines and
Parenting Plan, a copy of which is produced herewith as
Annexure C. This report has been implemented in the High
Court of Himachal Pradesh, High Court of Madhya Pradesh
and High Court of Bombay. This report also provides a
comprehensive approach to child custody issues. The report
has divided the entire scheme of parenting, visitation and
custody into various parts as follows:

a. Interim Visitation Schedule and Final Visitation

Schedule which is determined by the age of the child.
 4

b. Joint Custody.

c. Psychiatric and Psychological evaluation of parents

and the child.

d. Role of counsellors in the entire process.

e. A chart is also provided to fill in details of minimum

visitation etc.

f. The Parenting Plan or Custody Agreement is also

provided for. A detailed process and schedule is also
created for parenting. The plan provides for the
following:

A. Residential Parenting Schedule:

i. Residential time with each parent
ii. Day to Day Schedule
iii. Holiday schedule and other school free days
iv. Long Festival/ Weekend Holidays
v. Christmas Vacation
vi. Summer Vacation
vii. Transportation Agreements
viii. Supervision of Parenting Time

B. Decision Making:

i. Day to Day Decisions.

ii. Major Decisions such as name of the child,
surname, removal of child from school, medication,
illness or accident.

C. Financial Support / Maintenance

i. Child Support
ii. Health and Insurance
 5

D. Primary Residential Parent

E. Disagreements or modification of Plan or

Non Compliance

F. Rights of Child

G. Rights of Parent

H. Parental Relocation.

7. The report provides an excellent insight into each of these

issues and can certainly act as a ready reckoner for Courts
to utilise for the purposes of making the various
determinations on custody and visitation. As of today,
Courts make determinations without there being any
detailed information about the child, her mental and physical
health or well-being and sometimes simply on the basis of a
single meeting with the child. The complex relationship
between battling parents and the effect on the child can
hardly be determined by a Judge at a single meeting and
there is a need therefore to involve experts who can help
make that determination. The effort must be to encourage
parents to reach a decision as much as possible, by
mediation or various other routes; however, when that is
not possible, Courts must refer to an rely on expert views
coupled with the experience of a Judge to find out the best
interests of the child whilst not ignoring the rights of the
parents.
 6

D. Legal Doctrines under Indian Case Law

8. The “Welfare Doctrine” or “Doctrine of Best Interests of the

Child” is well established in Indian case law with respect to
determination of custody of children.1 Courts give due
weightage to child's health, education, intellectual
development, favourable surroundings2 as well as factors
such as continuity and stability, sibling relationships3, child's
own preference and psychological impact on the child 4.
Financial capacity is considered but is not a sole determining
factor.5

9. Indian Courts have viewed the "Parental Alienation

Syndrome"6 unfavourably where one parent damages a
child's relationship with the other parent by poisoning the
child's mind. The child has a right to know both parents, and
presence of both parents in the life of a child is important
for his/her healthy growth and development of personality.7

10. In the post-divorce scenario, the Indian Courts are

presently emphasising on “shared parenting” and joint
custody drawing inspiration from the consensus arrived at
in the International Council for Shared Parenting at its
conference held in 2014. The quintessence of “shared

1 Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228

2 Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673
3 Shaleen Kabra v. Shiwani Kabra, (2012) 5 SCC 355
4 Mamta v. Ashok Jagannath Bharuka (2005) 12 SCC 452
5 Sarita Sharma v. Sushil Sharma, (2000) 3 SCC 14
6 Vivek Singh v. Romani Singh, (2017) 3 SCC 231
7 Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479
 7

parenting” is equal responsibility of both parents towards

the child.8

11. Indian legislation and uncodified personal law do not

contain any specific provisions relating to access or
visitation rights of the non-custodial parent. Indian courts
have had to fill this lacuna and uphold the importance of
granting meaningful access to the non-custodial parent.9

E. Commonly Faced Problems in Child Custody Disputes

12. Although there exists a plethora of legislation and judicial

precedent on the aspect of child custody in India, their
application in each case by the Courts is largely dictated by
the unique factual matrix of each case. Therefore, it
becomes necessary for Courts to have access to all facts
touching upon custody, in a particular case, before
determining aspects of custody in a particular factual matrix.
It is in this light that the present Report has drawn up a
format of an Affidavit in the form of a Declaration to be made
by the respective claimants in all custody disputes, drawing
inspiration from the dictum of the Hon’ble Supreme Court in
Rajnesh v. Neha10. The intent of such an Affidavit is to make
available to the Court specific facts of a case regarding the
child and the claimants for custody in order to determine the
best interests of the child.

8Savitha Seetharaman v. Rajiv Sarathi (2020) 6 Kar LJ 1417; Rajeshwari

Chandrashekar Ganesh v. State 2022 SCC Online 885
9Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318
10(2021) 2 SCC 324
 8

13. Further, apart from considering legal doctrine, it is

imperative for courts to derive insights into its decision
making on custody matters from allied disciplines such as
Child Psychology. In order to facilitate the involvement
Mental Health Professionals within the Family Court System,
this Report sets out Guidelines on the same.

14. It is also imperative to ensure that child custody battles

involve minimal adversarial processes and are resolved in
the realm of consensus-based mechanisms such as
mediation. This Report sets out ways to co-opt the services
of court attached mediation centres in order to resolve
custody disputes in a consensual manner as far as possible.

15. Lastly, often children become pawns in the hands of warring

parents/claimants for custody which results in each rival
claimant trying to convince the child that either is the better
parent/custody claimant. Specially in the case of children
above the age of 10 who may be able to articulate their
preferences, however may lack an independent avenue to
have their say. Hence this Report has suggested
involvement of Advocates specifically to represent the child
in custody disputes.
 9

F. Guidelines

1. Mandatory Mediation

a. A mandatory time bound mediation process for child custody

cases can be introduced immediately after the application
for custody is filed and before trial commences- First
Mediation.

b. At any stage in the trial, the courts must be open to referring

parties to Mediation even if the First Mediation has failed.

c. The Mediation Centres attached to courts such as the

Bangalore Mediation Centre in Bangalore can facilitate the
same.

d. The aim and object of the said process is for rival claimants
of custody to prepare a Parenting Plan amicably.

e. The amicably decided Parenting Plan in Mediation will be part

of the Mediation Report and passed as orders of the court.

f. If mediation fails, the courts will have to pass orders bearing

in mind existing case law and facts of the case.

g. It is open for parties to seek interim orders during the

pendency of the process of mediation so that both parents
have access to the child in this period.

h. The Mediation Centre may empanel mediators with special

qualifications to deal with child custody disputes and provide
continuous training for Mediators specialising in custody
disputes resolution.
 10

2. Custody Evaluator

a. Family Courts must empanel Child Psychologists to act as

Custody Evaluators.

b. The Custody Evaluator may, on the application of either

party or at the instance of the Mediator, participate in the
Mediation to provide inputs on feasibility of an agreed upon
Parenting Plan for the child.

c. The Courts may direct evaluation by the Custody Evaluator

at any stage of the proceedings, either of its own accord or
on an application by the parties, even after the First
Mediation.

d. Guidelines should be developed for ethical conduct of the

Custody Evaluators.

e. In cases where Custody Evaluator is appointed, a Report

regarding their Evaluation to be available on the record of
the court.

f. Custody Evaluators must be made mandatory in cases

where there is any sense of parental alienation resorted to
by any of the parents or where the relationship between the
parents is acrimonious resulting in the child being placed in
an unenviable position of being unable to make a choice.

g. Fees of custody evaluators must be fixed by the Court on

the basis of Guidelines to be drafted and should be normally
shared equally by both parents, unless one of the parents is
unable to afford such cost.
 11

h. The Custody Evaluator may also be required to be part of

visitation with the parents in order to assess parental
involvement and may also be permitted to advise parents
on the upbringing of a child, should the parental relationship
be hostile. In such cases, continuous reporting to the court
may be necessary.

i. The Child Access and Custody Guidelines along with

Parenting Plan published by the Child Rights Foundation,
NGO at Chapter 6 provides for psychiatric and psychological
evaluation of parents and the Child. There may be a need
to adopt the same whilst making evaluation of difficult
custody issues and determining the best interests of the
child.

3. Child Representative

a. Appointing an advocate as Child Representative is useful to

represent the best interests of the child, uninfluenced by the
biases of either party in conflict.

b. Upon application of either party or on its own motion, the

court can direct appointment of a Child Representative in
cases where there is a need.

c. Advocates empanelled by the Legal Services Authority or

Legal Aid Committee can act as Child Representatives.
 12

d. A Child Representative may be appointed to participate in

Mediation processes as well as before the Court.

e. The Child Representative must interact with the child and

the Custody Evaluator and address submissions on behalf of
the child. The Child Representative may file pleadings
setting out the stance of the child.

f. The Child Representative must interact with the child on a

periodic basis even after the Parenting Plan is effectuated.

g. The Child Representative may also be requested to interact

with the Custody Evaluator in order to assess the best
interests of the child. A joint report of the Custody Evaluator
and the Child Representative may be provided to the Court
from time to time.

4. Child Custody Affidavit

a. Every petition/application for child custody must be

accompanied by a Child Custody Affidavit in the Appendix to
this Report. In the event Part I of the Affidavit regarding the
Deponent has been furnished in any other proceeding, the
same shall be furnished in the custody proceeding too,
provided it is current. Part II relating to Child shall be
mandatorily furnished even if Part I has been furnished in
any other proceeding.
 13

b. A separate Child Custody Affidavit must be filed for each

child whose custody is being applied for.

c. The Respondent must also file the Child Custody Affidavit

after service of notice, along with Statement of Objections.

d. The Child Custody Affidavit of the Respondent may also be

filed before the Mediator in the mediation. However
mediation will not close without the Child Custody Affidavits
of both parties.

e. In the event of failure of one party to file the Child Custody

Affidavit, such failure must be viewed seriously.

f. Supplementary Child Custody Affidavit may be filed during

the pendency of the proceeding to bring on record
subsequent facts.

5. Parenting Plan

a. The Mediation must be aimed at arriving at a detailed

Parenting Plan through consensus.

b. Parenting Plans should afford an opportunity to both

custodial and non-custodial parent to spend time with each
of the child(ren), mutually sharing responsibilities, and
holidays. These must set forth details including, but not
limited to, the child's education; the child's health care;
 14

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 them, including holidays and vacations, or the
procedure by which such periods of time shall be
determined.

c. The Parenting Plan as stipulated by the Child Rights

Foundation may be taken as the format and applied by all
Courts across the State.

6. Regular Review and Improvement

a. Courts must review the custody arrangement every 3

months or prior thereto on an application by either party or
the Child Representative.

7. Format or Ready Reckoner:

a. The Parenting Plan and the guidelines suggested by the Child

Rights Foundation in its Child Access and Custody Guidelines
will certainly bring to focus the approach that a Court can
take towards all aspects of visitation, custody, and
parenting. The effort should be to ensure that the parties
come together to agree on the Parenting Plan.
 15

Bangalore
Dated: Sri. M. Dhyan Chinnappa
Senior Advocate and Amicus

Nayana Tara BG
Ananditha Reddy
Vidya Pai
Advocates

Parv Tyagi
Student Intern, 4th Year, NLSIU
 16

CHILD CUSTODY AFFIDAVIT

I ___________ d/o or s/o or w/o _____________ aged about

______ years resident of _______________, do hereby
solemnly affirm and declare as under:

PART I: DETAILS OF DEPONENT

A. Personal Information of Deponent

1. Name:
2. Age:
3. Sex:
4. Relationship to the child:
5. Date of marriage:
6. Date of separation:
7. Name, age and custodial guardian of any other children
of Deponent (from this or other
marriages/relationships):
8. Address of Current Residence:
9. Whether Current Residence is matrimonial house/
parental home/ separate residence:
10. Ownership details of Current Residence:
11. Details of other persons staying at the Current
Residence (name, age, relationship with Deponent):
12. Details of dependants, if any, of Deponent:
13. Qualifications (Education and Professional):
14. Occupation:
15. Work timings (including travel time):
16. Whether frequent work travel is required:

B. Details of Income of Deponent

1. Name of employer:
2. Designation:
3. Monthly income after TDS:
4. If self-employed professional or entrepreneur, provide a
brief description of nature of business/ profession/
vocation/ self-employed work activity and whether the
business/profession/self-employment is carried on as an
individual, sole proprietorship concern, partnership
 17

concern, LLP, company or association of persons, HUF,

joint family business.
5. If engaged in government service, furnish latest salary
certificates or current pay slips or proof of deposit in
bank account, if being remitted directly by employer.
6. If engaged in the private sector, furnish a certificate
provided by the employer stating the designation and
gross monthly income of such person, and Form 16 for
the relevant period of current employment.
7. If any perquisites, benefits, house rent allowance, travel
allowance, dearness allowance or any other service
benefit is being provided by the employer during the
course of current employment.
8. Whether assessed to income tax?
9. If yes, submit copies of the Income Tax Returns for the
periods given below:
a. One year prior to marriage
b. One year prior to separation
c. At the time when the application for custody is filed
10. Income from other sources, such as rent, interest,
shares, dividends, capital gains, FDRs, Post office
deposits, mutual funds, stocks, debentures, agriculture,
or business, if any, along with TDS in respect of any such
income.
11. Furnish copies of bank statement of all accounts for the
last 3 years.

C. Assets of the Deponent

1. Self-acquired property, if any:

2. Properties jointly owned by the parties after marriage:
3. Share in any ancestral property:
4. Other self and joint properties of the parties (accounts/
investments/ FDR/ mutual funds, stocks, debentures,
etc.), their value and status of possession:
5. Status of possession of immovable property and details
of rent, if leased:
6. Details of loans taken or given by the Deponent

D. Liabilities of the Deponent

 18

1. Loans, liabilities, mortgage, or charge outstanding

against the Deponent, if any:
2. Details of any EMIs being paid:
3. Date and purpose of taking loan or incurring any such
liability:
4. Actual amount borrowed, if any, and the amount paid
up to date of filing the Affidavit:
5. Any other information which would be relevant to
describe current liabilities of the Deponent:

E. Deponent or other party being Non-Resident

Indians, Overseas Citizens of India, Foreign
Nationals or Persons living abroad outside India

1. Details of Citizenship, Nationality and current place of

residence of both parties:
2. If Indian citizenship is acquired by naturalization,
descent, registration, or any other method except by
birth, provide details:
3. Details of current employment and latest income in
foreign currency of both parties, duly supported by
relevant documentation of employment and income
from such foreign employer or overseas institution by
way of employment letter or testimonial from foreign
employer or overseas institution or latest relevant bank
statement:
4. Details of household and other expenditure of both
parties in foreign jurisdiction:
5. Details of tax liability of both parties in foreign
jurisdiction:
6. Details of income of both parties from other sources in
India/foreign jurisdiction:
7. Details of expenses incurred or contribution made on
account of spousal maintenance, child support or any
other educational expenses, medical treatment of
spouse or children:
8. Any other relevant detail of expenses or liabilities, not
covered under any of the above headings and any other
liabilities to any other dependent family members in
India or abroad:
9. Furnish copies of bank statement of all accounts for the
last 3 years.
 19

F. Details of Legal Proceedings

1. Particulars of any ongoing or past civil and criminal and

other legal proceedings with respect to Deponent before
any fora in any jurisdiction including arbitration?
2. If so, provide particulars thereof, along with a copy of
the order(s) passed.
3. If proceedings for divorce are pending, please attach the
pleadings of both parties in such proceedings.

G. Medical Details of the Deponent

1. Whether Deponent is suffering from any physical

disability or any other ailment. If yes, produce medical
records.
2. Whether the physical disability or ailment prevents or
otherwise inhibits the Deponent from performing tasks
or earning a livelihood?

H. Mental Health Details of the Deponent

1. Whether Deponent has been diagnosed with any mental
health issues?
2. Whether Deponent was ever advised to be diagnosed for
mental health issues but has not been examined?
3. Name of the Psychiatrist:
4. Name of the Institution associated with the Psychiatrist:
5. Name of the Psychologist:
6. Name of the Institution associated with the
Psychologist:
7. Whether the diagnosis prevents or otherwise inhibits the
Deponent from performing tasks or earning a livelihood?

PART II: DETAILS OF CHILD / CHILDREN (TO BE

FILLED IN SEPARATELY FOR EACH CHILD)

I. Basic Information pertaining to Child

1. Name:
2. Age:
3. Sex:
4. Natural/Ordinary Residence:
5. Current Residence:
 20

6. If relocated, reason for relocation of Child:

7. For how long has Child been residing at current
residence?
8. Whether current residence is an independent house or
flat?
9. Name of School:
10. Year of Enrolment into School:
11. Current Class of Child:
12. Distance from Current Residence to School:
13. Distance from Previous Residence to School:
14. Whether Child attends any day care centre?
15. Details of Day Care including distance from current and
previous residence?
16. Annual vacation of Child as per School notified calendar:
17. Whether transport arrangements can be changed based
on visitation?
18. In whose custody are the documents related to Child
such as passport, birth certificate etc.
19. Who has been named as the first point of contact in the
School?
20. Who receives all information from the School regarding
Child?

J. Assets of the Child

1. Whether Child has an insurance policy on his/her name

or is covered under a family insurance policy? If any,
who has undertaken to make payments towards the
insurance policy or under whose name has the insurance
policy been taken under? Who is covered under the
policy? (Mention the type of insurance policy).
2. Whether Child has any other
accounts/investments/FDR/ mutual funds, stocks,
debentures, etc., their value and status of possession:
under his/her name? (Mention the Number, Principal
Amount, Interest, Lock in period, Name of the Bank)
3. Brief description of jewellery and ornaments of Child.
4. Immovable Property in the name of Child, if any:
5. Status of possession of immovable property and details
of rent, if leased
6. Properties of Child that have been sold/alienated etc
 21

K. Medical Details of the Child

1. Whether Child is suffering from any physical disability or

any other ailment. If yes, produce medical records.
2. Whether the physical disability or ailment prevents or
otherwise inhibits Child from performing tasks or
attending school?
3. Whether assistance of any Third-Party is provided to aid
the Child in performing tasks? If so, who is providing for
the Third-Party assistance to enable the Child. Please
provide details regarding the nature of services of each
Third-Party assistance.

L. Mental Health Details of Child

1. Whether Child is diagnosed with any mental health

issues. If yes, produce medical records.
2. Name of the Psychiatrist:
3. Name of the Institution associated with the Psychiatrist:
4. Name of the Psychologist:
5. Name of the Institution associated with the
Psychologist:
6. Whether the diagnosis prevents or otherwise inhibits
Child from performing tasks or attending school?
7. Whether assistance of any Third-Party is provided to aid
the Child in performing tasks? If so, who is providing for
the Third-Party assistance to enable the Child. Please
provide details regarding the nature of services of each
Third-Party assistance.

M. Day to Day Activities of Child

1. Details of tutorials/ remedial classes taken by Child
including location and timings
2. Details of co-curricular activities taken by Child including
location and timings
3. Details of extra-curricular activities taken by Child
including location and timings
4. Whether any third-party is looking after Child such as
grandparents, nanny etc.,

N. Expenses Incurred for Child

1. School Fee per Year:
 22

[Link] Fee:
[Link] of Expenses towards books, stationery etc:
[Link] towards Tuitions:
[Link] towards Extra-Curriculars:
[Link] other recurring expenses or fees:
[Link] expenses:
[Link] expenses for Child towards clothes, food,
leisure etc:
9. Estimated financial contribution of Deponent to the
expenses of Child:
10. Contributions made by the parents in the name of Child
towards investments for the benefit of Child:

O. Any other details pertaining to Deponent, Child or

other party relevant for determining custody and
visitation? Serious concerns such as domestic
violence, substance abuse, verbal and sexual
abuse, serious mental health issues against the
other party may be detailed here.

Declaration

1. I declare that I have made a full and accurate disclosure of

all the information recorded in this Affidavit. I further declare
that I have not suppressed any information in this affidavit.

2. I undertake to inform this Court immediately with respect to

any material change in the information included in this
affidavit.

3. I understand that any false or misleading information may

be viewed seriously and I may be met with penal
consequences for such false or misleading information
including that the same may become material in determining
custody or visitation rights with respect to the child.

DEPONENT
 23

Verification
Verified at _________ on this the ____ day of _________
that the contents of the above Affidavit are true to my
personal knowledge, no part of it is false and nothing
material has been concealed therefrom, whereas the
contents of the above Affidavit are based on information
believed to be true on the basis of record. I further verify
that the copies of the documents filed along with the
affidavit are the copies of the originals.

DEPONENT
 24

GOVERNMENT OF INDIA

LAW COMMISSION OF INDIA

Report No.257

Reforms in Guardianship and

Custody Laws in India

May 2015
 25

D.O. No.6(3)/268/2014-LC(LS) 22 May, 2015

Dear Mr. Sadananda Gowda ji,

In order to emphasize the “welfare of the child” as the paramount consideration

in adjudicating custody and guardianship matters, the Law Commission of India
decided to study the issue of adopting a shared parenting system in India.

The Commission, in November 2014, issued a Consultation Paper on the

subject. The Consultation Paper analysed shared parentage systems across the
world and reviewed the existing law in India. It also posed a set of questions
pertaining to shared parenting and invited comments from the public. On
receiving several of responses from the public, the Commission set up a sub
committee to study the legal provisions pertaining to shared custody in both
developing and developed countries, with special emphasis on the circumstances
in which joint custody may be granted, parenting plans and mediation. Further,
through a series of meetings with legal experts, practitioners and other
stakeholders the committee outlined the nature and scope of the concept of
shared parenting in India and identified the provisions in the current law that
need to be amended.

After several rounds of discussions and deliberations, the views of the

Commission centred around (i) strengthening the welfare principle in the
Guardians and Wards Act, 1890 and emphasize its relevance in each aspect of
guardianship and custody related decision-making; (ii) providing for equal legal
status of both parents with respect to guardianship and custody; (iii) providing
detailed guidelines to help decision-makers assess what custodial and
guardianship arrangement serves the welfare of the child in specific situations;
and (iv) providing for the option of awarding joint custody to both parents, in
certain circumstances conducive to the welfare of the child.

contd….2/-

ii
 26

-2-

The above recommendations of the Commission are put in the form of its
Report No.257 titled “Reforms in Guardianship and Custody Laws in India”,
and is enclosed herewith for consideration by the Government.

With warm regards,

Yours sincerely,

Sd/-

[Ajit Prakash Shah]

Mr. D.V. Sadananda Gowda
Hon’ble Minister for Law and Justice
Government of India
Shastri Bhawan
New Delhi

iii
 27

Report No.257
Reforms in Guardianship and Custody
Laws in India
Table of Contents

Chapter Title Pages

I BACKGROUND TO THE REPORT 1-11
A. “Welfare of the Child”: Historical Evolution 3-4
B. “Best Interest of the Child” in International 5-6
Human Rights Law
C. Joint Custody 7-8
D. Summary of Responses received by the 8-10
Commission
E. The Present Report 10-11
II LEGAL FRAMEWORK GOVERNING 12-25
CUSTODY AND GUARDIANSHIP IN
INDIA
A. Statutory Law 12-19
(i) Guardians and Wards Act, 1890 12-15
(ii) Hindu Minority and Guardianship Act, 1956 15-17
(iii) Hindu Marriage Act, 1955 17-18
(iv) Islamic Law 18
(v) Parsi and Christian Law 18-19
B. Judicial Interpretations 19-25
(i) Superior Position of the Father 21-23
(ii) Indeterminacy of the Welfare Standard 23-25
III THE CONCEPT OF JOINT CUSTODY 26-34
A. International Approaches to Joint Custody 26-30
B. Joint Custody in India 30-32
C. Reasons for Adopting Joint Custody in 32-34
India
IV MEDIATION IN CHILD CUSTODY 35-40
CASES
A. Current Legal Framework for Mediation in 35-37
India
B. International Approaches to Mediation in 37-40
Child Custody

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V CONSIDERATIONS FOR DECIDING 41-50

CHILD CUSTODY CASES
A. Factors to consider for the Best Interest 41-42
Standard
B. Determining the Preference of the Child 42-43
C. Access to Records of the Child 43-44
D. Grand-parenting Time 44
E. Mediation 44-45
F. Relocation 45-46
G. Decision Making 46-47
H. Parenting Plan 47
I. Visitation 47-50
VI SUMMARY OF RECOMMENDATIONS 51-66
A. Amendments to the Hindu Minority and 52-55
Guardians Act, 1956
B. Amendments to the Guardians and Wards 55-66
Act, 1890
Annexure I : The Hindu Minority and 67
Guardianship (Amendment) Bill, 2015
Annexure II: The Guardians and Wards 68-80
(Amendment) Bill, 2015

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CHAPTER I

BACKGROUND TO THE REPORT

1.1 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.1 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. 2 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

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

1
Carla Gannon v. Shabaz Farukh Allarakhia, Bombay High Court, Criminal Writ Petition No.
509 of 2009.
2
Nil Ratan Kundu v. Abhijit Kundu AIR 2009 SC (Supp) 732.
3
Principle 4, Rule 3, Juvenile Justice (Care and Protection of Children) Rules, 2007.

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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:

 Strengthen the welfare principle in the Guardians

and Wards Act, 1890 and emphasize its relevance
in each aspect of guardianship and custody
related decision-making
 Provide for equal legal status of both parents with
respect to guardianship and custody
 Provide detailed guidelines to help decision-
makers assess what custodial and guardianship
arrangement serves the welfare of the child in
specific situations.

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 Provide for the option of awarding joint custody to

both parents, in certain circumstances conducive
to the welfare of the child.

A. “Welfare of the Child”: Historical Evolution

1.4.1 Traditionally at Common law, the father was

considered the sole guardian of the person and property
of the child. The authority of the father in every aspect
of the child’s life, including his/her conduct, education,
religion and maintenance, was considered absolute and
even the courts refused to interfere with the same.
Mothers did not have any authority over children, since
mothers did not have independent legal status; their
identities being forged with that of their husbands upon
marriage. As divorce became possible and mothers
began to have independent legal existence and
residence, their claim, if not right, to have custody of the
children began to be recognized by the courts. However,
despite a series of legislations – starting with the
Custody of Infants Act, 1839, in the UK – that enabled
the mother to claim custody over minor children, the
rights of the father continued to remain supreme.

1.4.2 Two developments aided in the dismantling

of paternal authority over children under English law.
First, in a number of judicial decisions, the courts
claimed the parens patriae jurisdiction – an even higher
parental authority of the state – to supersede the
natural guardianship of the father and award custody
depending on what promoted the welfare of the child.4
Second, through a series of legislations, the British
Parliament shifted the emphasis from paternal rights to
the welfare of the child and conferred equal legal status
to the father and the mother in determining

4
In re, O’Hara, (1990) 2 IR 232

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guardianship and custody. The Custody of Infants Act,

1873, allowed the mother to have custody of the child
till the age of sixteen and removed the restriction on
petitions made by mothers who had committed
adultery. The Guardianship of Infants Act, 1886,
recognized equal rights of the mother over custody,
access and appointment of testamentary guardian, and
allowed the court to appoint and remove guardians in
certain circumstances. The Guardianship of Infants Act,
1925, put the claims of the mother and the father in a
custody dispute on an equal footing and provided that
welfare of the infant shall be the “first and paramount
consideration”. Finally, the Guardianship of Minors Act,
1973, conferred the same rights to the mother that the
common law gave to the father; the mother was allowed
to exercise these rights without the concurrence of the
father. If the parents failed to reach an agreement, then
the court is authorized to decide the matter based on
the principle of welfare of the child.

1.4.3 In India, the Guardians and Wards Act was

enacted in 1890 by the colonial state, which continued
the legacy of Common law, of the supremacy of the
paternal right in guardianship and custody of children.
While Sections 7 and 17 of the Act provided that courts
should act in furtherance of the welfare of the minor,
Sections 19 and 25 of the original Act, subordinated the
same to the supremacy of the father. It is only the Hindu
Minority and Guardianship Act, 1956, enacted by the
independent Indian state that provides that welfare of
the minor shall be the paramount consideration
superseding all other factors. This legal framework is
discussed in detail in Chapter 2 of this report.

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B. “Best Interest of the Child” in International

Human Rights Law

1.5.1 While the “welfare of the child” principle

dominates the domestic legal framework, a comparable
legal standard is found in international human rights
law. According to the United Nations Convention on the
Rights of the Child (hereinafter, CRC), “in all actions
concerning children, whether undertaken by public or
private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.”5
The Convention directs the State Parties to ensure that
“both parents have common responsibilities for the
upbringing and development of the child.” 6 The CRC
provides that a child should be separated from his or
her parents if there is “abuse or neglect of the child by
the parents, or where the parents are living separately
and a decision must be made as to the child’s place of
residence.” 7 Welfare of the child, as a criterion for
decision, is generally flexible, adaptable and reflective of
contemporary attitudes regarding family within
society.8

1.5.2 The Committee on the Rights of the Child has

provided additional guidance regarding the best interest
standard in its General Comment 14.9 The Committee
stated that it is “useful to draw up a non-exhaustive and
non-hierarchical list of elements that could be included
in a best-interests assessment by any decision-maker
having to determine a child's best interests.” 10 The

5
Convention on the Rights of the Child, Art. 3, (1989).
6
Id., at Art. 18.
7
Id., at Art. 9.
8
Gilmore, Stephen, Great Debates: Family Law, Palgrave Macmillian, (2014) pp. 76-83.
9
Committee on the Rights of the Child, General Comment No. 14 on the Right of the Child to
Have His or Her Best Interests Taken as a Primary Consideration (art. 3, para. 1), U.N. Doc.
CRC/C/GC/14 (May 29, 2013).
10
General Comment 14, at ¶ 50.

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Committee suggested that the following considerations

can be relevant: the child’s views; the child’s identity
(such as sex, sexual orientation, national origin, religion
and beliefs, cultural identity, and personality);
preservation of the family environment and maintaining
relations (including, where appropriate, extended family
or community); the care, protection and safety of the
child; any situation of vulnerability (disability, minority
status, homelessness, victim of abuse, etc.); and the
child’s right to health and right to education.11 However,
there are two main criticisms of the best interest
standard when applied to custody issues.

1.5.3 First, it is unpredictable and information

intensive. Parents who are divorcing are left guessing as
to how the courts will make custody decisions; this can
lead to unnecessary pre-court bargaining that may be
harmful to both the child and the parents.12 This could
be resolved by a more predictable rule-based standard,
which delineates the content of the best interest
standard. On the other hand, a rule-based standard is
likely to be rigid and not consider the individual
circumstances of each case.13 Second, the best interest
of the child standard primarily focuses on the
predicaments of the child alone and does not take into
consideration the feelings and interests of the parents.
The parents are also actors within the family who have
rights and any legal framework must account for their
welfare as well.14 Thus, it is an open question whether
the best interest of the child standard is an adequate
legal tool to resolve child custody decisions, or whether
it needs to be supplemented with further legislative
guidelines.

11
General Comment 14, at ¶¶ 52–79.
12
Id.
13
Id.
14
Id.

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C. Joint Custody

1.6.1 The face of child custody arrangements is

changing. A number of countries across the globe have
adopted a preference for shared parenting systems over
sole custody as a post-divorce arrangement with respect
to children. In the West, this trend has arisen largely in
response to changing familial roles (male care takers
taking on more child rearing responsibilities) as well
psychological studies revealing that the involvement of
both parents in child rearing is preferable to sole
custody arrangements.15 Studies indicate that children
generally fare better when parents share custody, and
some jurisdictions in some countries have a legally
prescribed presumption of joint custody. 16 However,
scholars and courts also caution that a presumption of
joint custody can run contrary to the “best interests of
the child” standard, especially in cases of domestic
violence, where battered women may agree to joint
custody out of fear of further violence.17

1.6.2 In November 2014, the Law Commission of

India (hereinafter, the Commission) issued a
Consultation Paper on Adopting a Shared Parenting
System in India (hereinafter, the Consultation Paper).18
The Consultation Paper surveyed shared parenting
15
Glover, R. & Steel, C., Comparing the Effects on the Child of Post-Divorce Parenting
Arrangements, Journal of Divorce, Vol. 12 No. 2–3 (1989).
16
Several states in the U.S. have this. See, e.g., Idaho Code Ann. § 32-717B(4) (“Except as
provided in subsection (5), of this section, absent a preponderance of the evidence to the
contrary, there shall be a presumption that joint custody is in the best interests of a minor child
or children.”); Minn. Stat. Ann. § 518.17(2)(b) (“The court shall use a rebuttable presumption
that upon request of either or both parties, joint legal custody is in the best interests of the
child.”).
17
DEPARTMENT OF LEGISLATIVE SERVICES, CHILD CUSTODY: BACKGROUND AND POLICY
IMPLICATIONS OF A JOINT CUSTODY PRESUMPTION 6 (2011) (“Advocates for victims of
domestic violence argue vehemently against placing a presumption of joint custody in the
law.”).
18
The paper is available at
[Link]
df.

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systems in several countries, including the United

States, Canada, Australia, the United Kingdom, South
Africa, Netherlands, Thailand, Singapore, and Kenya.
The systems studied in the Consultation Paper
represented a wide variety of approaches to post-divorce
custodial arrangements. The Consultation Paper also
reviewed the existing law in India regarding child
custody, including the Guardians and Wards Act, 1890
and the Hindu Minority and Guardianship Act, 1956, as
well as relevant Supreme Court and High Court
decisions, and concluded that the law on custody in
India had evolved to a point where it was appropriate to
initiate a discussion on the idea of shared parenting. To
that end, the Consultation Paper posed a set of
questions pertaining to shared parenting and invited
comments from the public.

D. Summary of Responses received by the

Commission

1.7.1 Of the 125 responses, most were in favour of

shared custody. Some of the reasons for this were:

 Children need both their mother and father—they

seek advice from each parent in different
situations.
 Children need adequate opportunities to bond
with each parent.
 Shared physical custody without shared legal
custody will lead a child to believe that the parents
do not have equal moral authority. Shared legal
custody without shared physical custody will
prevent a child from bonding with both parents.
 Shared custody can reduce acrimony between the
parents.

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 Some women misuse the protections in Protection

of Women from Domestic Violence Act, 2005 and
Section 498A of the Indian Penal Code, to take
children away from their fathers. However, in
shared custody arrangements, parental contact
would be withheld only for child abuse, neglect, or
mental illness. Children should have contact with
both parents regardless of whether the parents
reconcile.
 Gender-based stereotypes—e.g., that a girl child
should be raised by the mother and a boy child by
the father—are outdated. Both parents have
valuable contributions to make in the lives of
children of either gender.

1.7.2 A few reasons were given against a shared

parenting law:

 During divorce proceedings, husbands use child

custody to force their wives to give up maintenance
or withdraw criminal complaints.
 It is not healthy for a child to move between two
homes. A stable, anchored home is the best option.
 In a patriarchal society where women and children
are often harassed, ensuring the child’s safety
could be a problem.
 Where parents have unresolved issues, they will
not be able to agree on joint decisions for the child.
 India does not have the necessary supportive
measures, such as: laws for division of
matrimonial property; the right to reside in the
matrimonial home; a financial plan for the future
security of the caretaker spouse; and foster homes
for the children.
 It could be used to harass women.

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1.7.3 Several respondents had suggestions on how

to implement a shared parenting system in India:

 Courts are not well suited to adjudicate custody

disputes. Instead, mediation centres should be set
up, staffed by people trained in advising parties on
issues pertaining to children and relationships.
Lawyers will just make the situation worse.
 Parents should have to submit a “Parenting Plan”
which provides the personal profile, educational
qualification, residence, and income of both
parties.
 Parents should open a joint bank account that can
only be used for the child’s expenses.

E. The Present Report

1.8 After receiving a large number of responses

to the Consultation Paper, the Commission formed a
sub-committee comprising the Chairman, Justice A.P.
Shah; Prof. Moolchand Sharma, Member, Law
Commission of India; Prof. Yogesh Tyagi and Mr. R.
Venkataramani, Part-Time Members, Law Commission
of India; Ms. Dipika Jain, Associate Professor and Mr.
Saptarshi Mandal, Assistant Professor, Jindal Global
Law School. The committee surveyed legal provisions
pertaining to shared custody in both developing and
developed countries, focusing in particular on the
circumstances in which joint custody is granted or
avoided; parenting plans; and mediation. Further,
through a series of meetings with legal experts,
practitioners and other actors involved in child custody
disputes, the committee outlined the nature and scope
of the concept of shared parenting in India and
identified the provisions in the current law that need to
be amended. The committee was assisted by Ms.

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Sumathi Chandrashekaran, Consultant, Law

Commission of India; Mr. Brian Tronic; Ms. Upasana
Garnaik and Ms. Kimberly Rhoten, Assistant
Professors, Jindal Global Law School; and Ms.
Madhuvanti Rajkumar, Ms. Smriti Sharma and Mr.
Pranay Lekhi, Researchers, Law Commission of India.
The Committee also acknowledges the valuable
suggestions and inputs made by Justice (Mrs) Manju
Goel, Retired Judge, Delhi High Court and Ms Laila
Ollapally of Centre for Advanced Mediation Practice,
Bangalore.

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CHAPTER II

LEGAL FRAMEWORK GOVERNING CUSTODY AND

GUARDIANSHIP IN INDIA

2.1 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.

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

19
§ 4(2), GWA.

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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

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

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.”).
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).

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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

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

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

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

25
Guardian and Wards Act, No. 8 of 1890, § 17(2).
26
Guardian and Wards Act, No. 8 of 1890, § 17(3).
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.
30
Guardian and Wards Act, No. 8 of 1890, § 25.
31
Guardian and Wards Act, No. 8 of 1890, § 25(1).

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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).

2.2.7 In Gita Hariharan v. Reserve Bank of India,33

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

32
Paras Diwan, LAW OF ADOPTION, MINORITY, GUARDIANSHIP & CUSTODY (2012), Universal
Law Publishing Co.: New Delhi, P. xv.
33
(1999) 2 SCC 228.

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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.34

2.2.8 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

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,

34
Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228, ¶ 25.
35
Hindu Minority and Guardianship Act, No. 32 of 1956, § 13.

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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

(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

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).

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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.

(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.

37
Paras Diwan, LAW OF ADOPTION, MINORITY, GUARDIANSHIP & CUSTODY (2012) Universal
Law Publishing Co.: New Delhi, at P. xvi.
38
Id., at P. xvii.
39
Parsi Marriage and Divorce Act, No. 3 of 1936, § 49.
40
Indian Divorce Act, No. 4 of 1869, § 41.

18
 47

Guardianship for Parsi and Christian children is

governed by the GWA.

B. Judicial Interpretations

2.3.1 The Supreme Court of India41 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. 42 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. 43 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.44 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

41
Mausami Ganguli v. Jayant Ganguli, (2008) 7 SCC 673.
42
Soora Beddi v. Cheema Reddy, AIR 1950 Mad 306.
43
Vegesina Venkata Narasiah v. Chintalpati, AIR 1971 AP 134.
44
L. Chandran v. Venkatalakshmi, AIR 1981 AP 1.

19
 48

welfare of the minor was the paramount concern, and

the paternal relations did not have a preferential
position in matters of custody. 45 There are similar
examples from other High Courts as well.

2.3.3 In deciding cases involving Muslim children,

High Courts have decided in favor of the mother only
when her right to custody was supported by Muslim
law. In Suharabi v. D. Mohammed,46 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, 47 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.48

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.

45
Satyandra Nath v. B. Chakraborthy, AIR 1981 Cal 701.
46
AIR 1988 Ker 36.
47
AIR 1983 AP 106.
48
Mumtaz Begum v. Mubarak Hussain, AIR 1986 MP 221.

20
 49

(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

21
 50

women has been tolerated for nearly four

decades.49

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

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,51 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
judgment, commenting on a judgment 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

49
Law Commission of India, 133rd Report, August (1989), ¶ 4.1, available at:
[Link]
50
Law Commission of India, 133rd Report, August (1989), ¶ 4.3, available at:
[Link]
51
AIR 2000 SC 1398.

22
 51

generalisation in favour of the mother should not

have been made.52

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.53

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

52
Kumar v. Jahgirdar v. Chethana Ramatheertha, SLP (Civil) 4230-4231/ 2003, Supreme
Court of India, Judgment dated 29 January, 2004.
53
Asha Bajpai, Custody and Guardianship of Children in India, 39(2) FAMILY LAW
QUARTERLY 441, 447 (2005).

23
 52

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 judgments
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 judgments on whether the financial
capacity of a parent is a relevant factor in deciding
custody.55 Indeed, a large number of judgments 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.

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

54
Archana Parashar, Welfare of Child in Family Laws—India and Australia, 1(1) NALSAR
LAW REVIEW 49, 49 (2003).
55
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 favor for giving him custody.
56
Flavia Agnes, Family Law II: Marriage, Divorce and Matrimonial Litigation (2011), Oxford
University Press: New Delhi, Pp. 257-259.

24
 53

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.

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.

57
Id., at 259.

25
 54

CHAPTER III

THE CONCEPT OF JOINT CUSTODY

A. 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.58

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

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:

58
VA Code Ann. § 20-124.1.
59
Ga. Code Ann., § 19-9-6(4).
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.”).

26
 55

“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

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
61
West's Ann. Cal. Fam. Code § 3006.
62
West's Ann. Cal. Fam. Code § 3007.
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).

27
 56

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.68

3.1.6 Practical considerations are also relevant.

Some jurisdictions consider geographical proximity
when deciding an award of shared parenting.69 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

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).
68
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).
69
Padgen and Padgen (1991) FLC 92-231 (Austr.).
70
A Barrat and S Burman,“Deciding the Best Interests of the Child” 118 South African Law
Journal (2001).

28
 57

provides legal confirmation of the factual reality of a

child's life.”71

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

71
In re A, [2008] EWCA Civ 867, ¶ 66.
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 Art. 371-1.

29
 58

right of access and lodging. 76 Kenya distinguishes

between “legal custody” and “actual custody.”77

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.78

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 judgment of the Karnataka High Court, which
used the concept to resolve a custody dispute involving

76
France Civil Code Art. 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).
78
Child Rights Foundation, Child Access and Custody Guidelines (2011), available at
[Link] p. 24.

30
 59

twelve-year old boy. In KM Vinaya v. B Srinivas,79 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:

 The minor child was directed to be with the father

from 1 January to 30 June and with the mother
from 1 July to 31 December of every year.
 The parents were directed to share equally the
education and other expenditures of the child.
 Each parent was given visitation rights on
Saturdays and Sundays when the child was living
with the other parent.
 The child was to be allowed to use telephone or
video conferencing with each parent while living
with the other.

3.2.4 In addition to the above examples, there has

been a growing demand to institute shared custody in
India, from ‘father’s rights’ groups, who argue that the
Indian family laws, including the law of custody, are
biased towards the mothers. Consequently, these
groups demand that fathers must have ‘equal rights’
over custody of children. This assertion about the law
being biased towards the mothers is not only factually
incorrect, but the demand is also based on a faulty
understanding of equality in our constitutional and
legal framework. As we have discussed below, the father
is still deemed the natural guardian under both
religious and secular family laws, while the mother is
not. Further, in our society, equality in conjugal and
family life is still a distant dream. A large number of
women continue to disproportionately bear the burden
of housework and childcare, even when they have a paid
employment outside the home. Thus, when during the

79
MFA No. 1729/ 2011, Karnataka High Court, Judgment dated Sept. 13, 2013.

31
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subsistence of marriage, there is no equality in parental

and caregiving responsibilities, then on what ground
can one claim equality in parental rights over children
after the dissolution of the marriage? Our Constitution
and the legal framework direct the state to pursue
substantive equality. Substantive equality recognizes
the difference in the socio-economic position of the
sexes within the home and outside of it, and aspires to
achieve equality of results. We therefore reject the
position of the father’s rights groups on shared
parenting based on the rhetoric of equal rights over
children.

3.2.5 Having said that, however, we feel it is

important to consider the potentials of the shared
parenting model in India for several other reasons,
discussed below.

C. Reasons for Adopting Joint Custody in India

3.3.1 First, with rapid social and economic change,

conjugal and familial relationships are becoming more
complex and so are the conditions of their dissolution.
As these social changes that affect family life escalate,
we need to update the laws governing the family
relationships, during and after the marriage. At present,
our legal framework for custody is based on the
assumption that custody can be vested with either one
of the contesting parties and suitability is determined in
a comparative manner. 80 But, just as the basis for
dissolving marriage has shifted over time, from fault-
based divorce to mutual consent divorce, we need to
think about custody differently and provide for a

80
Swati Deshpande, Divorced Dads Unite for Custody Rights, Times of India (Sept. 9, 2009),
[Link]
rights/articleshow/[Link] (“Their experience is that family courts often swing totally one
way or the other as child-custody battles usually end with one parent getting full control over
the minor; the other parent is allowed only partial access during weekends or school holidays.”).

32
 61

broader framework within which divorcing parents and

children can decide what custodial arrangement works
best for them.

3.3.2 Second, the judicial attitude towards custody

matters has evolved considerably. As legal scholar and
activist, Flavia Agnes notes,

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.81

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

81
Flavia Agnes, Family Law II: Marriage, Divorce and Matrimonial Litigation (2011), Oxford
University Press: New Delhi, p. 255.

33
 62

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 favor 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 favor 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.

34
 63

CHAPTER IV

MEDIATION IN CHILD CUSTODY CASES

4.1 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. 82 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

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

82
Afcons Infra. Ltd. v. Cherian Varkey Constn., (2010) 8 SCC 24, ¶ 8.
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,
[Link] (last visited Mar. 23, 2015).
85
Danielle Gauvreau, Mediation versus Litigation: Examining Differences in Outcomes
amongst the Children of Divorce, RIVERDALE MEDIATION,
[Link]
[Link] (last visited Mar. 23, 2015).

35
 64

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,86 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,

86
AIR 2013 SC 2176.

36
 65

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, circulated by the Mediation and Conciliation
87

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

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

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

87
The Manual is available at
[Link]
[Link]
88
Mediation Training Manual, at p. 67, available at
[Link]
[Link]
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).
90
VA Code Ann. § 20-124.2(A).

37
 66

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

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
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.”).
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.

38
 67

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

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

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
99
Children’s Act, No. 38 of 2005, § 33(2).
100
Children’s Act, No. 38 of 2005, § 33(5).
101
Marriage Law of the People's Republic of China (1980), art. 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
[Link]
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).

39
 68

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
judgment is needed. 110 Some provincial laws also
specify the duties of dispute resolution professionals111
and the required qualifications for family mediators.112

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.

107
Id.
108
Id.
109
Id.
110
Id.
111
See, e.g., British Columbia Family Law Act, § 8, available at
[Link]
112
See, e.g., British Columbia Family Law Act Regulations, B.C. Reg. 347/2012, §§ 4–5,
available at [Link]

40
 69

CHAPTER V

CONSIDERATIONS FOR DECIDING CHILD

CUSTODY CASES

5.1 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

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
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.

41
 70

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

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

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 . . .
.”).
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,
[Link]
(last visited May 5, 2015).
120
Aaron Thomas, A Child's Preference in Maryland Custody Proceedings, DIVORCENET,
[Link]
(last visited May 5, 2015); Slepkow, Slepkow & Associates, Inc., Child's Preference and
Awarding Custody in Rhode Island, [Link] LEGAL RESOURCES,
[Link] (last visited May 5, 2015).
121
Id.

42
 71

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

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

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

122
Slepkow, Slepkow & Associates, Inc., Child's Preference and Awarding Custody in Rhode
Island, [Link] LEGAL RESOURCES, [Link] (last visited May
5, 2015).
123
Aaron Thomas, A Child's Preference in Arizona Custody Proceedings, DIVORCENET,
[Link]
(last visited May 5, 2015).
124
Aaron Thomas, A Child's Preference in Maryland Custody Proceedings, DIVORCENET,
[Link]
(last visited May 5, 2015); Slepkow, Slepkow & Associates, Inc., Child's Preference and
Awarding Custody in Rhode Island, [Link] LEGAL RESOURCES,
[Link] (last visited May 5, 2015).
125
Id.
126
Aaron Thomas, A Child's Preference in Maryland Custody Proceedings, DIVORCENET,
[Link]
(last visited May 5, 2015).
127
Id.
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 judgment 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 . . . .”).

43
 72

present a risk of harm, the court may prevent disclosure

of the information.129

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.

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,

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.”).
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”).
131
See supra Ch. IV.
132
Id.

44
 73

which can further encourage collaborative resolution

(as an alternative to costly litigation).133

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
133
Id.
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 . . . .”).

45
 74

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

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).

137
CONN. GEN. STAT. ANN. § 46b-56d(b).

46
 75

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

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
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 [Link]
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.

47
 76

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:

 The child alternates between the parents on a

regular basis (e.g., daily, weekly, or monthly)
 The child lives with one parent when school is in
session, and lives with the other parent during
school vacations
 The child lives primarily with one parent, but visits
the other parent on alternating weekends and 1–2
evenings per week (possibly including an overnight
stay)

5.10.2 Guidelines on scheduling have been provided

by both Indiana and Michigan, which recommend that
a child visit a non-custodial parent every other weekend
and one weekday evening per week.142 The Indiana and
Michigan guidelines also recommend dividing holidays
(some are given to each parent) and then alternating
them every year. 143 However, some holidays (such as
winter school vacation) are not alternated, but rather

141
See DOMESTIC RELATIONS COMMITTEE, INDIANA PARENTING TIME GUIDELINES (2013), §§
2–4, available at [Link] STATE COURT
ADMINISTRATIVE OFFICE, MICHIGAN PARENTING TIME GUIDELINE, available at
[Link]
[Link]; TATA INSTITUTE OF SOCIAL SCIENCES, CHILD ACCESS & CUSTODY GUIDELINES
(2011), available at [Link] COLORADO
DEPARTMENT OF LABOR AND EMPLOYMENT, CONNECTING WITH KIDS (2004), available at
[Link] (last
visited April 2nd 2015).
142
INDIANA PARENTING TIME GUIDELINES at § 2(D)(1); MICHIGAN PARENTING TIME
GUIDELINE at 7.
143
INDIANA PARENTING TIME GUIDELINES at § 2(F)(2); MICHIGAN PARENTING TIME GUIDELINE
at 7–9.

48
 77

shared equally by the parents every year (i.e., the child

spends the first half of the vacation with one parent, and
the second half with the other).144 Both states also have
additional guidelines for parents that live far away from
each other145 and for young children.146

5.10.3 In India, visitation rights have been defined

by the Supreme Court in Roxann Sharma v. Arun
Sharma147 as “a non-custodial parents or grandparent's
Court ordered privilege of spending time with a child or
grandchild who is living with another person, usually
the custodial parent.” In a number of cases, the
Supreme Court has granted visitation rights to the non-
custodial parent and grandmothers, adoptive parents,
maternal uncles and aunts. The prime consideration for
visitation rights is the welfare of the child and the
proximity of the child to the relation concerned.

5.10.4 For example, in Prabhat Kumar v. Himalini,148

the Court held that the welfare of the child is determined
by the benefit of care and affection the minor would
receive in granting visiting rights to such family
members of the hostile family. The onus of proving such
benefit is upon the family member claiming the right.
Another important consideration is the nearness of the
child to the family member. Here, the Court upheld the
order for interim visitation for the father and his
relatives, due to a reinforced relationship between the
child and father on account of regular visits ordered by
the guardianship Judge.

144
INDIANA PARENTING TIME GUIDELINES at § 2(F)(2)(B). MICHIGAN PARENTING TIME
GUIDELINE at 8–9.
145
INDIANA PARENTING TIME GUIDELINES at § III; MICHIGAN PARENTING TIME GUIDELINE at
23–34.
146
INDIANA PARENTING TIME GUIDELINES at § II(C) (discussing infants and toddlers);
MICHIGAN PARENTING TIME GUIDELINE at 24–25.
147
Roxann Sharma v. Arun Sharma MANU/SC/0165/2015.
148
Prabhat Kumar v. Himalini MANU/DE/0016/201.

49
 78

5.10.5 The Commission believes it is necessary and

useful to lay down broad guidelines on visitation rights,
such that they are conducive to the welfare of the child,
and to ensure that both parents are able to spend time
with the child.

50
 79

CHAPTER VI

SUMMARY OF RECOMMENDATIONS

6.1 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

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.

149
Law Commission of India, 83rd Report, April (1980), available at
[Link]
150 Law Commission of India, 133rd Report, August (1989), available at
[Link]

51
 80

A. Amendments to the Hindu Minority and

Guardians Act, 1956

6.3 The Law Commission recommends the

following amendments to this Act:

1. Section 6(a): This section lists the natural

guardians of a Hindu minor, in respect of the
minor’s person and property (excluding his or her
undivided interest in joint family property). In the
case of a boy or an unmarried girl, this section
clearly states that the natural guardian of a Hindu
minor is the father, and after him the mother. Even
after the Supreme Court’s judgment in Gita
Hariharan v Reserve Bank of India,151 the mother
can become a natural guardian during the lifetime
of the father only in exceptional circumstances.
This is required to be changed to fulfil the
principles of equality enshrined in Article 14 of the
Constitution.

Accordingly, the Law Commission

recommends that this superiority of one parent
over the other should be removed, and that both
the mother and the father should be regarded,
simultaneously, as the natural guardians of a
minor. This also follows from the recommendation
of the Commission that the welfare of the minor
must be the paramount consideration in every
circumstance. This concept of welfare being
paramount is already captured in Section 13 of the
1956 Act. In recommending such an amendment
to Section 6, the Commission reaffirms the
recommendations of its 133rd report, to give equal
rights to both the mother and father in respect of
151
(1999) 2 SCC 228

52
 81

a minor and his/her property.152 It also reaffirms

the recommendations of the 83rd report of the Law
Commission, in intending the two provisions
(Sections 6 and 13) to be read together.153 Such a
reading will necessarily imply that neither the
father nor the mother of a minor can, as of a right,
claim to be appointed by the court as the guardian
unless such an appointment is for the welfare of
the minor.

The Guardians and Wards Act, 1890 has also

undergone similar legislative changes, moving
away from an absolute and natural right of a father
to be the guardian.154 The 1890 law was enacted
at a time when women had limited rights in law,
and it was in need of reform. According to the older
version of Section 19(b) of the 1890 Act, the court
could not appoint a guardian of a minor (other
than a married female), if the minor’s father was
living and not unfit to be the guardian. The
Personal Laws (Amendment) Act, 2010 amended
this clause to refer also to the mother in the same
vein as the father, thereby making the law more
equitable. 155 The recommendations of the
Commission, in context of the changes to the 1890
Act, therefore, are merely removing anomalies in
one law that have already been removed in
another.

The proviso to section 6(a) presently provides

that the custody of a minor below 5 years of age

152
Law Commission of India, 133rd Report, August (1989), ¶ 4.3, available at:
[Link]
153
Law Commission of India, 83rd Report, April 1980, ¶6.44, p. 30, available at
[Link]
154
Venkata Narasiah v. Peddiraju, 1970 (1) ALT 25; Kumarswami Mudaliar v. Rajammal AIR
1957 Mad. 563.
155
Personal Laws (Amendment) Act, No. 30 of 2010, chapter II.

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will ordinarily be with the mother. The

Commission believes that this position should be
allowed flexibility in cases where the court decides
to grant joint custody, and the text of the provision
is amended accordingly.

2. Section 7: This section provides that the natural

guardianship of an adopted son who is a minor
passes, on adoption, to the adoptive father and
after him to the adoptive mother. The language of
this section is incongruous in that it refers only to
the natural guardianship of an adopted son, and
does not refer to an adopted daughter. The Hindu
Minority and Guardianship Act, 1956 came into
force at a time when the general Hindu law as
administered by the courts did not recognise the
adoption of a daughter. Thus, at the time of
passing of the Act, the adoption of daughters was
only allowed under custom and not under codified
law. This explains the reason why the drafters of
the Act included the guardianship of only adopted
sons and ignored the adoption of daughters.156 It
was also enacted before the Hindu Adoptions and
Maintenance Act, 1956, which corrected the legal
position of adoption of a daughter statutorily. 157
The effect of the later law is that the adoptive father
and the adoptive mother would be regarded as the
natural guardians of the adopted child. 158 It
follows that the Hindu Minority and Guardianship
Act, 1956 should also include both an adopted son
and an adopted daughter within the scope of
natural guardianship. The Commission merely
corrects this by amending the Hindu Minority and

156
Paras Diwan, LAW OF ADOPTION, MINORITY, GUARDIANSHIP & CUSTODY, 3rd edn., 2000, p.
226.
157
Hindu Adoptions and Maintenance Act, No. 78 of 1956, § 10.
158
MULLA HINDU LAW, ed. Satyajeet A. Desai, 21st edn., 2010, p 1258.70

54
 83

Guardianship Act, 1956 to be in consonance with

the Hindu Adoptions and Maintenance Act, 1956.
Further, the Commission recommends that the
natural guardians of an adopted child should
include both the adoptive parents, in keeping with
its recommendations to Section 6(a) provided
above, and previous legislative changes such as
the Personal Laws (Amendment) Act, 2010.
Accordingly, the Commission recommends that
Section 7 be amended to refer to the natural
guardianship of an adopted child who is a minor,
which will pass, upon adoption, to the adoptive
mother and father.

B. Amendments to the Guardians and Wards Act,

1890

6.4 The Law Commission recommends the

following amendments to this Act:

1. Section 17: This section provides for matters to be

considered by the court in appointing the guardian
of a minor, and requires the welfare of a minor to
be consistent with the laws to which the minor is
subject. In the past, Section 17 was read with
Section 19 of this Act (which deals with the
preferential right of natural guardianship). 159
Before being amended by the Personal Laws
(Amendment) Act, 2010, Section 19 offered a
preferential right to the husband (of a minor girl),
or the father (in all other cases) to be the guardian
of the minor, if neither were unfit to be appointed
guardian. The 2010 Act included the mother along

159
Law Commission of India, 83rd Report, April (1980), ¶6.40, available at
[Link]

55
 84

with the father as a natural guardian of the child,

and changed the position of the law slightly. 160
However, the welfare of the child was still not,
under law, truly the paramount consideration in
such matters.

The Law Commission recommends that the

possibility of any alternate reading be corrected in
statute, and reaffirms, in this context, the general
recommendations made by the 83rd report of the
Law Commission. Thus, in the appointment or
declaration of a guardian, the welfare of the minor
must be paramount, and everything else must be
secondary to this consideration. In determining
welfare, however, the court may give due regard to
the laws to which the minor may be subject. As the
83rd report observed, “such an amendment will
settle the position for all times to come,” 161 and
will remove the possibility of the appointment of a
guardian without first assessing welfare.

2. Section 19: This section provides for the

preferential right of certain persons to be regarded
as natural guardians. It provides that the court
may not appoint a guardian, if the husband of a
minor who is a married female is not unfit to be
the guardian of her person, or if the father or
mother (who are living) of a minor other than a
married female is similarly not unfit to be the
guardian. Here, too, the Commission reaffirms the
83rd report regarding the importance of the welfare
principle, and recommends that in determining
whether a person is unfit to be a guardian in these

160
Personal Laws (Amendment) Act, No. 30 of 2010, chapter II.
161
Law Commission of India, 83rd Report, April (1980), ¶6.40, available at
[Link]

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circumstances, the welfare of the minor under

Section 17 shall be the paramount consideration.

3. Section 25: This section provides for the arrest of

a ward if the ward leaves or is removed from the
custody of his guardian, if such arrest is for the
welfare of the ward. As with its recommendations
above, the Law Commission concurs with its 83rd
report, in various aspects.162 First, the concept of
arrest of a minor is an archaic one, and needs to
be amended to reflect modern social
considerations. Therefore, the Law Commission
recommends a substitute section, replacing
‘arrest’ with the requirement to return the ward to
the custody of his or her guardian. Again, the
Commission reiterates the necessity of placing the
welfare of the minor as the paramount
consideration.

Second, the present text of the law is unclear

as to whether a guardian who has never had
custody of a minor is entitled to the relief under
this section. This needs to be clarified, and
accordingly, the Law Commission reiterates the
recommendations of the 83rd report163 as regards
the language of the provision to specifically state
that it applies in cases where the child is not in the
custody of the guardian, though the latter is
entitled to such custody.

Third, it recommends that the court must not

make an order under this section in respect of a
child of fourteen years of over, without taking into
consideration the wishes of the child.164 This is in
consonance with the provisions of Section 17 of

162
Id, ¶7.18
163
Id, ¶7.14-7.17
164
Id, ¶7.20

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this Act, which allows the court to consider the

stated preference of a minor, if the minor is old
enough to form an intelligent preference. In a
scenario where the minor of over fourteen years of
age has left or been removed from the custody of
his or her guardian, the Commission recommends
that the court must take into consideration the
preference of the child.

4. Insertion of new Chapter IIA: This chapter deals

with custody, child support and visitation issues,
covering a range of topics as discussed below.

a. Section 19A: Objectives of the chapter.

This section lays down the principal

objectives of this chapter, by way of guidance to
the court as to what the chapter seeks to
achieve. Children are the most vulnerable
persons in a matrimonial dispute, and the
trauma that they face during and after the legal
determination of such disputes is
immeasurably harsh. Children often become
pawns in such matters, and are used by their
parents for their own purposes, to strike
bargains that rarely take into consideration the
emotional, social and mental upheavals that the
children themselves may be facing. The
Commission believes this imbalanced situation
can be addressed in some measure through
legislative changes that will place a duty upon
the court to uphold the child’s welfare in each
and every circumstance, regardless of the
individual interests of the parties involved.

These objectives, therefore, embody the

fundamental and most important
recommendation of the Law Commission,

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regarding the welfare of the child being of

utmost consideration. A court is bound to bear
in mind these objectives in making an order
under this chapter, and will therefore be
required to comprehensively assess the
consequences of any order it makes in light of
these objectives.

The objectives require that the welfare of a

child is met by ensuring various other aspects,
such as recognising the changing emotional,
intellectual and physical needs of the child;
maintaining a healthy and continuing
relationship with both parents, society and
siblings; recognising the prior and future ability
and commitment of the parents to participate in
the growth of the child; protecting the child from
violence of any kind, and so on.

b. Section 19B: Applicability of this chapter.

Custody issues are dealt with in three personal

laws, which are, the Indian Divorce Act, 1869
(Sections 41 and 43), the Parsi Marriage and
Divorce Act, 1936 (Section 49), and the Hindu
Marriage Act, 1955 (Section 26). In general
terms, these sections grant the court the power
to pass decree/ order regarding the custody,
maintenance and education of minor children,
whose parents are parties to a suit for divorce
or separation.

The new chapter IIA as recommended by the

Law Commission provides for detailed
considerations in custody matters, and in that
regard, is in addition to the powers of the court
as listed in the three personal laws. This new

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section clarifies that the provisions of this new

chapter will apply to all proceedings related to
custody and child support, including under the
three laws. This cross-reference to the personal
laws is provided in the statute to clarify that the
recommendations of the Commission are
intended to be secular, and applicable to all
persons, regardless of the personal laws they
may be governed by.

c. Section 19C: Definitions.

This section offers two key definitions, i.e.,

joint custody and sole custody. Joint custody is
where both parents share physical custody of
the child (in such proportion as the court
determines to be for the welfare of the child),
and also equally share the responsibility for the
care and control of the child, and decision-
making authority. Sole custody is a situation
where one parent retains the physical care and
control of a child. However, these rights may be
subject to the power of the court to grant
visitation rights to the other parent.

The introduction of joint custody as a defined

term is to recognise the possibility, in law, of a
court issuing an order of joint custody, if it is for
the welfare of the child. However, the definition
of joint custody, and the substantive provisions
that follow, must always be read in light of the
objectives that open the chapter, which seek to
ensure that the custody arrangement eventually
granted is always subject to the welfare of the
child being met.

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d. Section 19D: Award of custody.

This section gives powers to the court to

make different kinds of custody orders.
However, it also requires the court to consider
the detailed guidelines contained in the
schedule in this regard. The court retains the
power to modify the orders so made, provided
such modifications remain in the welfare of the
child, and the reasons for such modification are
recorded.
e. Section 19E: Power to pass additional orders.

This is an additional power granted to the

court, necessary to effectuate or enforce any
order relating to the custody of the child under
the chapter.
f. Section 19F: Mediation.

Many disputes arising out of divorce

proceedings (child custody, child support, etc.)
could be solved through mediation. This would
promote better outcomes for both parents and
children, as well as reduce the strain on the
overburdened court system. Before engaging
directly with the court system, the Commission
recommends that parties to a custody matter
must ordinarily consider mediation before the
proceedings actually begin, or when the court
so orders. The court will usually refer the
parents to the court-annexed mediation centre.
However, in case there is no such centre, the
court may appoint an individual mediator.

At present, Family Courts take assistance

from marriage counsellors in settling disputes.
Counsellors are different from mediators in
terms of their approach. Counselling usually

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requires identifying behavioural issues of the

individual parties and tends to involve
professionals trained in areas of mental health,
psychology and sociology, unlike mediation,
which requires identifying conflict behaviour
and tends to involve professionals trained in
dispute resolution. 165 Therefore, the
Commission recommends that parties should
be given the opportunity to participate in
mediation with a trained mediator. Mediators
should have appropriate background and
training, including in family disputes. Further,
High Courts, District Courts and Family Courts
should maintain a list of court-annexed
mediation centres and individual mediators.
These will be identified and paid remuneration
in accordance with a scheme designed by the
concerned High Court in consultation with the
respective state governments.

As the legislation repeatedly emphasises, it is

the duty of the court to ensure that the final
custody order is for the welfare of the child. For
this purpose, the Commission recommends that
the court should have the power to obtain an
independent psychological evaluation of the
child, in order to determine various related
issues (e.g., the child’s preference, influence of
and relationships with the parents, etc.).
Further, as in the case of mediation,
professional assistance may be required, as
neither the court nor mediators may be
qualified to understand child psychology.

165
Maritalmediation Staff, What is the Difference between Marital Mediation and Marital
Counseling?, February 22, 2013, available at [Link]
the-difference-between-marital-mediation-and-marital-counseling-2/ (Last visited on April 22,
2015).

62
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Time-bound resolution is also a key factor to

achieve the ultimate objective of ensuring that
the welfare of the child is met. The Supreme
Court has recognized that Family Courts should
ensure that a reasonable time limit is prescribed
for the completion of the entire mediation
process so as to not delay the resolution of
family disputes any further.166 The Commission
recommends that any mediation under this
section must be time-bound, and must
conclude within sixty days of being so ordered.
In the absence of such a requirement, there is a
risk that mediation may continue indefinitely
and adversely affect the child in question.
However, the court can extend this period,
where necessary.

g. Section 19G: Child support.

Personal laws in India deal with the concept

and idea of child support to some extent
through the concept of custody of children in
codified Hindu Law167 and Parsi Law,168 and the
Indian Divorce Act. 169 However, these
provisions do not list the reasons for which such
child support is required. The Hindu Adoptions
and Maintenance Act, 1956 has a provision for
maintenance of children,170 but merely casts an
obligation of maintenance on the father 171 as
well as the mother.172 Maintenance here means
the provision for food, clothing, residence,

166
Baljinder Kaur v. Hardeep Singh, AIR 1998 SC 764.
167
Hindu Marriage Act, No. 25 of 1955, § 26.
168
Parsi Marriage and Divorce Act, No. 3 of 1936, § 49.
169
Indian Divorce Act, No. 4 of 1869, § 41 and § 43.
170
Hindu Adoptions and Maintenance Act, No. 78 of 1956, § 20.
171
Krishnakumari v. Varalakshmi AIR 1976 AP 365.
172
MULLA HINDU LAW, ed. Satyajeet Desai, 21st edn. 2010, p. 1378.

63
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education and medical attendance and

treatment.173 This definition of maintenance is
generally worded so as to be applicable to all
persons entitled to claim maintenance under
the various provisions of the 1956 Act.174 The
Law Commission believes that child support in
custody matters entails much more than the
concept of maintenance as captured by the
1956 Act. Accordingly, it empowers the court to
specifically pass orders for the maintenance of
children. It elaborates that such an order will
involve fixing an amount that is “reasonable or
necessary” to meet the living expenses of the
child, including food, clothing, shelter, health
care, and education.

However, terms such as “reasonable” and

“necessary” may be construed as vague, and
can be abused or wrongly interpreted when
fixing amounts for child support. The
Commission, therefore, qualifies these terms by
recommending certain factors that courts must
keep in mind when calculating child support.
These include the financial resources of the
parents, the standard of living of the child,175
the physical and emotional condition of the
child, his or her educational and healthcare
needs or any other factor that the court deems
fit for the child’s welfare.

Following the general principle of majority

being attained at the age of 18, the Commission
recommends that child support must continue
till such age of majority. There are cases where

173
Hindu Adoptions and Maintenance Act, No. 78 of 1956, § 3(b).
174
MULLA HINDU LAW, ed. Satyajeet Desai, 21st edn. 2010, p. 1294.
175
Sayali Pathak v. Vasant Pathak 110 (2004) DLT 637.

64
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the court has advised an increase in the age of

maintenance from eighteen to twenty-one and
asked the Commission for its advice. 176 The
Commission is of the view that the court should
have the power to continue child support even
after a child attains the age of 18, and wherever
appropriate, this period may extend till the child
reaches the age of 25, and not thereafter.

The Commission also recognises special

treatment for children with mental or physical
disability. 177 The Hindu Adoption and
Maintenance Act, 1956, applies to persons with
disability, but the benefits cease at the age of
eighteen. The Commission recommends
correcting the provision of law to provide child
support beyond such time as the child reaches
25 years of age, in case of a child with mental or
physical disability.

The Commission recommends that courts

should have the power to order for the liability
of the estate of a parent who dies during or after
an order for child support is passed, to ensure
that the welfare of the child remains the key,
even after the lifetime of the parent.

h. Schedule: Guidelines

The Commission also recommends various

guidelines to accompany the main body of the
law, in the Schedule to the Bill. The guidelines
discuss the following issues: factors to be taken

176
The Times of India, Raise Age for Child Maintenance to 21: Court, August 12 (2011),
available at [Link]
21-Court/articleshow/[Link] (Last visited on April 23, 2015).
177
Juvenile Justice (Care and Protection of Children) Act, No. 56 of 2000, § 2(d).

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into consideration when granting joint custody,

determining the preference of a child, access to
a child’s records, parenting plan, grand-
parenting time, mediation, visitation, decision
making, and relocation.

Sd/-
[Justice A.P. Shah]
Chairman

Sd/- Sd/- Sd/-

[Justice S.N. Kapoor] [Prof. (Dr.) Mool Chand Sharma] [Justice Usha Mehra]
Member Member Member

Sd/- Sd/-
[P.K. Malhotra] [Dr. Sanjay Singh]
Ex-officio Member Ex-officio Member

Sd/-
[Dr. G. Narayana Raju]
Member-Secretary

Sd/- Sd/-
[R. Venkataramani] [Prof. (Dr.) Yogesh Tyagi]
Member (Part Time) Member (Part Time)

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Annexure I

THE HINDU MINORITY AND GUARDIANSHIP

(AMENDMENT) BILL, 2015

A Bill
further to amend the Hindu Minority and Guardianship
Act, 1956

Be it enacted in the Sixty-sixth year of the Republic

of India:-
SHORT TITLE 1. This Act may be called the Hindu Minority and
Guardianship (Amendment) Act, 2015.

AMENDMENT OF 2. In the Hindu Minority and Guardianship Act, 1956

SECTION 6 (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.”

SUBSTITUTION OF 3. In the principal Act, for section 7, the following

NEW SECTION section shall be substituted, namely:--
FOR SECTION 7 “(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.”

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Annexure II

THE GUARDIANS AND WARDS (AMENDMENT)

BILL, 2015
A Bill
further to amend the Guardians and Wards Act, 1890

Be it enacted in the Sixty-sixth year of the Republic

of India:-
SHORT TITLE 1. This Act may be called the Guardians and Wards
(Amendment) Act, 2015.

AMENDMENT OF 2. In the Guardians and Wards Act, 1890 (hereinafter

SECTION 17 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.”
AMENDMENT OF 3. In the principal Act, in section 19, after clause (c),
SECTION 19 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.”
SUBSTITUTION OF 4. In the principal Act, for section 25, the following
NEW SECTION section shall be substituted, namely:--
FOR SECTION 25 “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.

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(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.”
INSERTION OF 5. In the principal Act, after Chapter II, the following
NEW CHAPTER Chapter IIA shall be inserted, namely:--
“Chapter IIA: Custody, Child Support and Visitation
Arrangements
19A. 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,

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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.

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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

71
 100

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.”
INSERTION OF 6. In the principal Act, the following Schedule shall be
SCHEDULE inserted at the end, namely:--

“SCHEDULE
GUIDELINES FOR CUSTODY, CHILD SUPPORT AND
VISITATION ARRANGEMENTS

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 101

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;

73
 102

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

74
 103

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

75
 104

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

76
 105

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:--

77
 106

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;

78
 107

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.

79
 108

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 opportunites 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.”

80
 109

HIGH COURT OF UTTARAKHAND AT NAINITAL

Hon’ble Chief Justice Ms. Ritu Bahri

Hon’ble Justice Sri Rakesh Thapliyal
06th March, 2024
Writ Petition (PIL) No. 28 of 2024
Shruti Joshi …............ Petitioner
Vs.
State of Uttarakhand & Ors. ….......Respondent
Counsel for the Petitioner : Ms. Shruti Joshi, in person.
Counsel for the respondent : Mr. S.N. Babulkar, Advocate
General with Mr. Rajeev Singh
Bisht, Standing Counsel for th State
and Mr. V.K. Kaparuwan, Standing
Counsel for Union of India.

Upon hearing the learned Counsel, the Court made the

following Judgment:
(Per Ms. Ritu Bahri, C.J.)

1. A letter dated 11.01.2024, issued by Government of

India, Ministry of Law & Justice to all the Law Secretaries
and all the Registrar General of respective High Courts
which relates to the proposal of Dr. Veena Madhav
Tonapi, former Principal of JSS Sakri Law College, has
been handed over to the learned Advocate General, which
pertains to the qualification of counsellors and
adjustments in the conciliation process within the
framework of Family Courts. As per this letter, there is a
proposal for amendment for effective counseling,
appointment of marriage counsellors and qualification for
appointment of marriage counsellors has been given. The
proposed amendment does not lay down any criteria for
appointment of any lawyer as a counsellor, so, in future,
no lawyer can be appointed as a counselor to assist in the
matter of mediation. Apart from this, at page 89, of the
Shah Commission Report has recommended that the
Court should have the power to obtain an independent
 110
2

psychological evaluation of the child, in order to

determine various related issues in the case of
mediation, professional assistance may be required, as
neither the court nor mediators may be qualified to
understand child psychology.

2. Apart from this observation, Law Commission has

recommended amendment of the Hindu Minority and
Guardianship Act, 1956, which is Annexure-1 with this
report.
3. In the present case, as per the information given to
the Court in FAO No. 1378 of 2021, in the High Court of
Punjab and Haryana, the Union of India has submitted
the report that consent of all the States except State of
Bihar has been received as on 09.12.2022.
4. Since the procedure for amendment in the pending
Hindu Minority and Guardianship Act, 1956, is a lengthy
procedure, a direction is being given that all the
recommendations made by the Commission vide
Annexure 1 should be made mandatory to be followed by
the Family Courts and the letter dated 11.01.2024, issued
by Government of India, Ministry of Law & Justice should
also be followed for appointment of counsellors, who are
Child Psychologist/General Counsellors, so that their
report is scientific and can be taken as an evidence for
granting custody of the child to any either of the parents
and these guidelines have to be followed with respect to
custody, even if divorce is granted to both the parents. If
they want any counseling to be done at this stage, it is
only a psychologist who can give them guidance for
proper upbringing of the child.
 111
3

5. This Court has been observing in the past that

while dealing with the disputes of the parents the child’s
emotional needs and proper emotional growth has never
been examined and by the time litigation reaches the High
Court the children have already faced agony for at least 5
to 9 years. This Court is of the view that at this stage, this
direction is necessary to be given that the child’s custody
has to be shared by both the parents as well as by the
grand-parents so that his emotional growth is not
affected. The child has to bear many peer pressure when
he grows up. The individual who have to get married and
their parents should be made aware that when the
children get married and they have a child it is
mandatory to follow the guidelines of share parenting laid
down by the Shah Commission in its report dated
22.05.2015. As nine years have gone by and the
amendment has not been carried out which may take
more time , the responsibility of the next generation who
has to get marry and their parents towards the child who
was born should be crystallized and should be followed
with emotional care and without any ego.
The recommendations of amendment proposed in
the Hindu Minority and Guardianship Act, 1956,
Annexure no. 1, and Guardianship and Wards Act, 1890
as Annexure No. 2 have laid down in detail the meaning
of the word joint custody, procedure to be followed during
mediation and procedure to be followed for grant of joint
custody, preferential of the child and, fixing grand
parenting time. They have laid down the parenting plan
that should minimize the child’s exposure to harmful
parental conflict and encourage parents to mutually
agree on the division of responsibilities of the child’s
 112
4

upbringing through agreements in the parenting plan,

rather than by relying on court intervention.

6. This Court is not issuing writ of Mandamus for

amendment. It is only giving directions that these
proposed amendments should be mandatorily followed
while dealing with the matrimonial disputes, custody
cases dealt by the Family Courts and during mediation.
The direction issued is mandatory subject to the
amendment made by the Legislation.
7. This Court appreciates gesture made by Ms. Shruti
Joshi, Advocate to initiate this PIL for the larger public
interest of the children and facing agony during
matrimonial proceedings and their parents.
8. In the present case, since Uttarakhand is a hilly
State, steps have already been taken for effective
mediation and counseling can be done through Whats
App and other electronic mode so that parties have not to
travel from far away places.
9. Let a copy of this order be given to learned Advocate
General for the State, Deputy Solicitor General for Union
of India.
10. Registrar General is directed to circulate the copy of
this order to all the District Judges and District Legal
Services Authorities in the State.
11. In view of the above, the present Public Interest
Litigation is disposed of.

(Rakesh Thapliyal, J.) (Ritu Bahri, C.J.)

06.03.2024
PV/RB
113
5
 114

CHILD ACCESS
&
CUSTODY GUIDELINES
ALONG WITH
PARENTING PLAN
 115

CHILD ACCESS & CUSTODY GUIDELINES

&

PARENTING PLAN

By

CHILD RIGHTS FOUNDATION

NGO

Name: Child Rights Foundation

Status: NGO

Address: B-3-13-04, Sector 3,

Vashi, Navi Mumbai 400703.
Maharashtra, INDIA.

Website: [Link]
Email: childrights@[Link]
Cell: + 91 9699994646 / 9702022691
 116

Published by : CHILD RIGHTS FOUNDATION, NGO

E-mail : childrights@[Link]
Website : [Link]
© PUBLISHERS :
Printed at :
Year of Publication : 2014
Although every care has been taken in the publication of this book, the
publishers, the distributors and the printers shall not be responsible for any
loss or damage caused to any person on account of errors or
omissions which might have crept in. It is suggested that to avoid any
doubt the reader should cross-check all the facts, law and contents of
the publication with Child Rights Foundation, NGO.

No part of this book may be reproduced or copied in any form or any manner
whatsoever without the prior written permission of the publishers.

All Rights Reserved

 117

Child Access & Custody Guidelines

Circulated for Guidance by :
Hon’ble Bombay High Court
Hon’ble High Court of Madhya Pradesh
[Link]

Approved & Enforce Recommendations by :

Hon’ble High Court of Himachal Pradesh
[Link]

Parenting Plan
Approved by :
Hon’ble Bombay High Court
Hon’ble High Court of Himachal Pradesh
[Link]

Circulated for Guidance by :

Hon’ble High Court of Madhya Pradesh
[Link]
 118

Registrar General High Court of Himachal Pradesh

“Revenswood
Shimla-171001

D.O. [Link]/Rules/Parenting Plan & Child Access 2014/

Dated: 5.4.2014

Dear Shri

Sub: Child Access & Custody Guidelines and Parenting Plan.

With reference to your letter dated 04.03.2014 received

through Email on the above captioned subject, I am to inform you that
Hon’ble High Court of Himachal Pradesh has approved the Parenting
Plan with Child Access and Custody Guidelines. Accordingly,
communication has been sent to all the District and Sessions Judges
with a respect to enforce these recommendations in their respective
Divisions.
With regards,
Yours sincerely,

(A.C. Dogra)

Sh. Jatin Katira,

Child Rights Foundation,
B-3-13-04, Sector 3, Vashi,
Navi Mumbai-400703.
 119

Tel: 0761-2622250 No.:RJ-1/ /2014

th
Date: 20 March, 2014

From:
Giribala Singh
Registrar (J-I)
High Gourt of M.P.
Jabalpur.
To :
Shri Jatin Katira
Child Rights Foundation,
B-3-13-04, Sector-3, Vashi,
Navi Mumbai-400703.

Subject : Child Access & Custody Guidelines and Parenting

Plan.
Sir,

With reference to the subject mentioned above, I am

directed to state that the Hon’ble the Chief Justice is pleased to
direct circulation of the ‘Child Access and Custody Guidelines’ and
‘Parenting Plan’ for guidance amoung all the Additional District
Judges, Family Court Judges and Marriage Councellors in the
State of Madhya Pradesh

With warm regards,

Yours faithfully

Registrar (J-I)
High Court of M.P.
Jabalpur.
 120

No.: A(Spl.)/Misc/9 /2012

Tel : 022-22670866 (O) th
Date : 7 February, 2012
From :
R.N. Laddha.
Registrar (Inspection-II)
High Court, Appellate Side,
Bombay-400 032.
To :
The President,
Child Rights Foundation,
B-3-13-04, Sector-3, Vashi,
Navi Mumbai-400 703.

SUBJECT : Parenting Plan.

Sir,
With reference to the subject mentioned above, I am directed to state
that the Hon’ble Guardian, Judges of the Famiy Courts in the State of
Maharashtra, have been pleased to approve the Parenting Plan as a base
document to be modified as per the facts and circumstances of the case.

I convey my gratitude for your kind gesture in preparing the Parenting

Plan which may prove beneficial to the Judges of the Family Courts as well as
the Marriage Councellors and also bring out an ease between the couples who
are undergoing separation.

With warm regards,

Yours faithfully

Registrar
(Inspection-II)
 121

No.: A(Spl.)/Misc/157/2011
Tel : 022-22670866 (O) Date : 16th December, 2011
From :
R.N. Laddha.
Registrar (Inspection-II)
High Court, Appellate Side,
Bombay-400 032.

To :
Shri Jatin Katira
Child Rights Foundation,
B-3-13-04, Sector-3, Vashi,
Navi Mumbai-400703.

SUBJECT : Child Access and Custody Guidelines.

Sir,

With reference to the subject mentioned above, I am directed to

state that the Hon’ble the Chief Justice is pleased to direct circulation of the
Child Access and Custody Guidelines among all the Hon’ble Judges of the
Bombay High Court.

With warm regards,

Yours faithfully

Registrar
(Inspection-II)

Registrar (Inspection II)

High Court, Appellate Side,
Bombay
/home/insp14/Pankaj/Word Files/let [Link]/88
 122

Tel. No. 22670866 (O) No. A(Spl)/Misc./5/2011

Dated : 6th January 2011

From :
N.J. Jamadar,
Registrar (Inspection-II),
High Court (A.S.),
Bombay.
To :
Shri Jatin Katira,
Child Rights Foundation,
B-3-13-04, Sector 3,
Vashi, Navi Mumbai-400 703.

Subject : Child Access & Custody

Sir,
With reference to aforementioned subject, I am directed to inform
you that the Hon'ble Guardian Judges of the Family Courts in the State of
Maharashtra, have been pleased to direct the circulation of the Guidelines
amongst the Family Court Judges and the Marriage Counsellors in the
Family Courts across the State of Maharashtra.

I convey my gratitude for your kind gesture in preparing a detail

guidelines which may prove beneficial to the Judges of the Family Courts as
well as the Marriage Counsellors in determining Child access and custody
matters.

With regards,

Yours faithfully,

Registrar (Inspection - II)

 123

Foreword

The principle of the best interests of the child has been the subject
of extensive consideration in Child Access and Custody Matters,
How to apply this principle in practice, however, often remains
challenging for Family Court and Lower Courts as Limited
guidance is available on how to operationalize the best interests
principle.

These Guidelines are intended as one step to help fill this gap.
Among others, interests of the child who will be ensured love and
affection of both parents.

The true value of the Guidelines will, of course, be tested and

established only by the extent to which they are used, and relied
upon in actual practice.

I urge all those into whose hands they will be placed to make the
greatest use of the Guidelines. Your experience in using these
guidelines will make it even better and more effective tool to enable
that the children have a sense of belonging to both the parents and
grandparents.

S. Parasuraman
Mumbai
March 16, 2011
 124

Dr. Y. A. Matcheswalla
M.D., (Psy.), M.D. (Forensic), D.P.M., F.I.P.S.

CONSULTANT PSYCHIATRIST
DE-ADDICTION AND REHABILITATION OF ALCOHOLICS, ADDICTS AND PSYCHIATRIC
CASES, PROBLEMS OF CHILDREN, ADOLESCENTS, ADULTS, GERIATRIC PERSONS,
SEXAL PROBLEMS, FORENSIC, MEDICO - LEGAL PROBLEMS
FOR APPOINTMENTS : 2374 7767 / 2371 4889 / 2371 4890 / 6453 7171
Regn. No. 53949
Mobile : 98200-81884
FOREWORD
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HON. PSYCHIATRIST : lives. In my clinical experience, I have seen a large number of
GRANT MEDICAL COLLEGE &
SIR J. J. HOSPITAL these kids suffer from personality problems, conduct
Sir J. J. Road, Byculla,
Mumbai - 400 008. disorder, substance abuse, criminal and antisocial traits,
Tel. : 23735555
major depressive disorder, etc etc.
G. T. HOSPITAL
L. T. Marg, Dhobi Talao,
Near Metro Cinema,
Thus the child's lifelong emotional health and stability is
Mumbai - 400 001.
Tel. : 22621464 / 65 / 66 / 67
paramount and for that they must grow up with feelings of
love and respect towards both parents.
CHAIRMAN :
HUMANITY HEALTH ORGN.
DILAASA - Self Help Group The guideline hereby formulated is definitely a huge step
CRISIS PREVENTION HELP-LINE
& PSYCHIATRIC AMBULANCE forward in respecting and considering the child's best interest.
SERVICE
Tel. : 64507171 / 64537171 It is easiest to negative and shortsighted but it takes a lot of
Mobile : 9821119603, 9820520899
9869422592, 9819533496 effort and strength to effect positive change. We are definitely
MULTI DIMENSIONAL COUNSELLING moving ahead.. Positively !
CENTRE AND INSTITUTE OF
PSYCHOTHERAPY &
BEHAVIOURAL SCIENCES,
Masina Hospital, Mumbai - 400 027.
Tel. : 23714889 Ext. 301
Mobile : 9321119603 / 9819533496

DR. MATCHESWALLA'S
COUNSELLING CENTRE
Saifee Court, Ground Floor,
DR. Y. A. MATCHESWALLA
Clare Road, Byculla,
Mumbai - 400 008.
Tel. : 23094256

E.E.G. LABORATORY
Masina Hospital, M. M. C. Building,
Sant Savla Marg, Byculla (E),
Mumbai - 400 027.
Mobile : 9869422592

Website : hppp://[Link] • E-mail : dryamatcheswalla@[Link] • drmatcheswalla@[Link]

 125

Ms. Swati Popat Vats

PRESIDENT Nurturing The Future. Since 1927.

EDUCATION NETWORK

To,
Child Rights Foundation
Mumbai. India

Re-Congratulations on the work on "Child Access And Custody Guidelines"

Dear Sirs,

The birth of a child is one of the biggest miracles of god and then comes a
separation called 'divorce' and the custody of the child becomes the biggest
problem. How this is handled keeping in mind the needs of the three
stakeholders, namely father, mother and child, is crucial for the emotional
development of the child.
I am extremely happy to go through the "Child Access and custody Guidelines"
by the Child Rights Foundation. They have taken pains and ensured that every
element of custody and visitation rights of both partners is given due
importance. I can understand the amount of hard work, perseverance and
research that must have gone into the creation of this detailed document.
I congratulate Child Rights Foundation for this wonderful work and I am sure
that many children's lives will be touched by this good work a it will ensure that
the importance of both parents remains in the life of a child even after a painful
separation called 'divorce'.

My best wishes to them for all the good work that they are doing.

Warm Regards,

Swati Popat Vats

President

Corporate Office
Podar Centre, PODAR JUMBO KIDS

85 Chamar Baug,
PODAR HAPPY KIDS
Post Office Lane,
Off Dr. Ambedkar Road,
PODAR INDIA KIDS
Parel TT, Mumbai - 400 012.
Tel. : 2471 4825
ECCED
[Link] • [Link]

Schools Help Build Nations, We Help Build Schools

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PARENTING PLAN
INTRODUCTION 1-3
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CHILD ACCESS & CUSTODY GUIDELINES

By
CHILD RIGHTS FOUNDATION

A serious need is felt for approaching the Hon'ble Principal Judge Family court to
set proper guidelines for the Family Courts regarding access, visitation and custody,
as this will help in disposing off the cases quickly in a scientific manner ensuring that
the right of the child to be showered with the love and affection of both the parents is
not lost or delayed.

I. Under Section 10(3) of the Family Courts Act the Principal Judge has the
powers to frame rules.

II. When 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 While determining the
best interests of the child:

[Link] primary considerations are:

a. Ensuring benefit to the child of having spend equal or substantial or

significant time to develop a meaningful relationship with both the child's
parents and to ensure an implement of overnight access so that the child
gets love and affection of not only both the parents but also of grandparents,
uncles , aunties, cousins etc thereby ensuring that the family heritage is
maintained; and

b. Ensuring the need to protect the child from physical or psychological harm
from being subjected to, or exposed to, abuse, neglect or family violence.

INTRODUCTION:

The recent trend in the society is seeing a paradigm change in the matrimonial
relationship. The numbers of divorce cases are rising, particularly in the last decade,
more and more middle and lower-middle class couples have been approaching
family court for divorce, resulting in rise of bitter child custody battles. Often, the
innocent children are used as tools of vengeance by vindictive litigants who inflict
severe emotional and psychological abuse on the child thereby seriously affecting
the child in his/her later part of life . Failure in marriages is sometimes due to lack of
awareness or realization among the litigants where often one of the partner suffers
from a personality disorder and/or adjustment disorder which can be easily
diagnosed through psychological evaluation.
1
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A serious need is felt for approaching the Hon'ble court as well as HC to set
proper guidelines for the Family Courts, as this will help in disposing off the cases
quickly in a scientific manner rather than on speculation.

In family disputes, litigants often make false and vindictive allegations against
each other, wasting & consuming enormous court's time which can be reduced
considerably.

Further it would also help to some extent in reconciliation of marital disputes.

Presently, even the Legal system, bureaucrats, politicians, statutory agencies for
child welfare, NGO's etc., have forgotten or missed to appreciate or understand
child rights as well as the immense emotional trauma that innocent children undergo
in the process of custody litigation and parent separation due to lack of love and
affection from both the parents.

Depriving love & affection of both parents, more particularly due to alienation of the
child by the custodial parent and or denial of proper access to the non-custodial
parent by the courts without realizing the serious consequences caused in the later
part of the child's life such as drug abuse, deteriorating educational achievement,
premature sexuality, mental/personality disorder, chronic depression, suicidal
tendency, out of wed-lock birth, and often a major force behind serious crimes.

There is an urgent need to establish well defined framework and guidelines for
family courts and the counselors to implement while deciding the custody of the
children.

Delay in action or callous approach, what kind of future society/generation are

we going to create.

Needless, to say today's youth are going to be leaders & thinkers of tomorrow.
The Nation's future depends upon today's children. Hence, immediate intervention
of higher courts must.

Presently these issues are being decided in an absolutely subjective fashion by

the family court seriously affecting the mental health of the tender children as well as
specific violations of UN Convention on rights of the Child.

One of the fundamental rights of the children is to get love and affection from both
the parents (irrespective of parent's conflict), right to quality of life and survival, and
right to be cared, right to develop a sense of belonging, right to participate fully in
family, cultural and social life.
2
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We would like to bring specific focus to Article 39(e) & (f), the state shall direct its
Policy in such a manner that the tender age of children is not abused and children
are given opportunities and facilities to develop in a healthy manner and childhood is
protected against exploitation and against moral and material abandonment.

While framing guidelines a clear distinction needs to be made between the

Rights of the Child versus the Rights of a Parent (which invariably ends up being
interpreted as Rights of only the mother).

India and the *UNCRC

The UNCRC – United Nations Convention on the Rights of the Child (UNCRC) a
clarion of worldwide movement and the pinnacle of international effort to promote
the basic needs of children as fundamental human rights is a remarkable and
wonderful gift to the children which is given a 'go by' by our current legal system.
(India along with 193 countries has also agreed to undertake the obligations of the
Convention by ratifying to it as on December 2008).

3
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INTERIM CHILD VISITATION GUIDELINES

Immediately within one week from the date of service of summons or the first
meeting with the counselor for mediation and conciliation parties shall draw up an
interim visitation plan.

The basic principles of the courts are to ensure that the child/children get(s) to
spend equal or substantial and significant time to be showered with love and
affection from both the parents irrespective of parent's conflict.

Efforts should be made by parties and if necessary court should direct parties to
mutually agree upon a visitation schedule to be drawn up along with the Marriage
Counselor within a maximum period of 60 days. Pending, finalization of mutual final
overnight visitation agreement, an interim access has to be worked out immediately.

If the parties cannot agree on visitation, their first alternative is to mediate the
conflict. Visitation is for the primary benefit of the child. Visitation should not be
viewed as a privilege to be exercised at the whim of either parent, but as a
responsibility that should be fulfilled as a necessary cause. The custodial parent is
expected to provide access of each child at unscheduled times if requested and if to
do so would not unreasonably disrupt prior planned activities of the child or the
custodial parent.

REINTRODUCTION OF ABSENT PARENT: The Guidelines assume that each

parent has been a continuous presence in the children's lives. In the event that a
parent has had limited or no contact with his or her children and wishes to be
reintroduced into the children's lives, it is up to the parents to agree on the means by
which this is to be accomplished. If the parents are unable to agree, the first
alternative shall be to mediate the conflict. If mediation is unsuccessful, it shall be
the responsibility of the Court to adopt a schedule to ease the reintroduction.

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CHAPTER 1

INTERIM VISITATION

The following visitation guidelines should balance the needs of both parent and
child, regardless of whether that child has older siblings that enjoy extended
visitation with the Non-custodial parent.

A. VISITATION (CHILDREN AGED BETWEEN 0 TO 36 MONTHS)

The following visitation guidelines should balance the needs of both parent and
child, regardless of whether that child has older siblings that enjoy extended
visitation with the Non-custodial parent.

1. WEEKENDS: The Non-custodial parent shall be entitled to weekend visitation

every weekend. For children between 0 to 36 months visitation shall be between
11.00 A.M. to 2.00 P.M. or 4.30 P.M. to 7.30 P.M. on Saturday and Sunday during
the weekend and Twice (two times) during Weekday between Monday to Friday
for 1½ hours (90 Minutes).

2. WEEKDAY VISITATION: The Non-custodial parent shall be entitled to visitation

two (2) evenings per week during weekday between Monday to Friday for 1½
hours (90 Minutes). These shall be the same two evenings every week and
varied only if the weekday visitation schedule conflicts with the holiday or
vacation schedule. If the parties cannot agree, weekday visitation shall be on
Monday and Wednesday.

3. HOLIDAYS: The non-custodial parent shall be entitled to spend at least 3 Three

hours on the holiday or festival day including 15th August, 26the January, 1st May
(Maharashtra day;) , 2nd October (Gandhi Jayanti), 14th November (Children's
day) excluding the time of travel. Only where it is not possible to share during the
festival day due to reasons of distance or otherwise. In odd-numbered years, the
Non-custodial parent shall be entitled to spend with the minor child; in even
numbered years, the schedule shall be reversed. A party's entitlement to Holiday
visitation overrides the other party's right to regularly scheduled weeknight or
weekend visitation. If either or both parties celebrate other holidays, such
holidays should be written down, divided and alternated each year.

Note: For children aged between 0 to 36 months it shall be open for the custodial
parent to remain present during visitation.

i. Visitation shall be from 11:00 a.m. until 2:00 p.m. or 4.00 p.m. to 7.00 p.m.
on the official holiday.
5
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B. VISITATION (CHILDREN 36 MONTHS AND OLDER)

4. WEEKENDS: The Non-custodial parent shall be entitled to weekend visitation

every other weekend or every weekend one night every week. Every other
weekend Visitation shall begin Friday at 6:00 p.m. and end at 6:00 p.m. on
Sunday. If every weekend visitation is opted then every week overnight visitation
shall begin either from every Friday at 6.00 p.m. and end on Saturday 6.00 pm. or
from every Saturday 6.00 p.m. and end on 6.00 p.m on Sunday. It is not the
responsibility of the custodial parent to provide food or shelter for the child during
the Non-custodial parent parent's visitation.

5. WEEKDAY VISITATION: If the parties reside within thirty (30) Kilometers driving
distance of each other, the Non-custodial parent shall have visitation two (2)
evening per week for 2 two hours between 6.00 p.m. to 8.00 p.m., but shall
exercise the weekday visitation in the locale of the child's primary residence or
within the radius of 10 ten kilometers. The preceding sentence shall not preclude
occasional travel beyond the thirty (30) Kilometers for special weekday events.
The weekday visitation shall be on the same evening each week and varied only
if it conflicts with the holiday or vacation schedule. If the parties cannot agree on
the weeknight and if there are no scheduled activities for Wednesday, it shall be
Wednesday evening for 2 hours. If there are activities scheduled for Wednesday,
the Non-custodial parent shall have first choice of an alternate weekday for
weekday visitation

6. HOLIDAYS: The non-custodial parent shall be entitled to spend at least Three (3)
hours on holidays and festival day excluding the time of travel. Only where it is
not possible to share during the holidays and festival day due to reasons of
distance or otherwise. A party's entitlement to Holiday visitation overrides the
other party's right to regularly scheduled weeknight or weekend visitation. If
either or both parties celebrate other holidays, such holidays should be written
down, divided and alternated. In the absence of an agreement, the court shall
allocate religious holidays between the parties.

i. Visitation shall be from 11:00 a.m. until 2:00 p.m. Or from 4.00pm to 7.00pm on
the official holiday.

7. CHILDREN COMPLEX ROOM: Where access even though either agreed by

mutual consent or ordered by the court is not being granted to the non-custodial
parent, Children's complex room situated in the premises of the Family Courts or
such other place as either mutually agreed or directed by the court such as
premises made available and approved by the Hon'ble Family court shall be
used for purposes of counseling the child or the parent for a specific period and
thereafter access can continue as per schedule set forth.

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CHAPTER – 2

FINAL CHILD VISITATION GUIDELINES PENDING CUSTODY ORDER OF THE

HON'BLE COURT.

8. GENERAL PROVISIONS

The parent with primary custody (parent who is having custody of child since
birth and is taking care of the day to day and hour to hour need of the child) shall
be referred to herein as the custodial parent, and the other parent shall be
referred to as the Non-custodial parent.

9. ACCESS VISITATION SCHEDULE:

This visitation schedule has been approved by the Hon’ble Bombay High Court
as a model visitation schedule. Parties to any order entered before the effective
date of these guidelines may agree in writing to the provisions herein; otherwise,
such parties shall continue to comply with the old order unless a modification of
the order is entered by the court.

i. If the parties cannot agree on visitation, their first alternative is to mediate the
conflict. Even if mediation does not work then the court can pass an appropriate
order in terms of the visitation schedule for parties to comply. Special reasons
may exist to alter this visitation schedule such as: age of the child, health, special
care needs, etc.

ii. Within a period of not more than 60 days parties shall draw up and finalize a
final schedule of visitation as per chapter 3 below.

iii. On the visitation schedule being drawn and agreed upon between the
custodial and the non-custodial parent the counselor shall have the same duly
executed by the parties and the same shall be placed on record for the approval
of the Hon'ble court. Parties shall comply with the agreement in full and any
violation shall give rise to cause of action to the aggrieved party to seek
appropriate directions from the court.

A. The no-contact or limitation-of-contact provisions of any domestic violence

case, injunction case, juvenile case, or criminal case supersede any
contact provisions set forth in these guidelines. That is, the no-contact or
limitation-of-contact provisions of any domestic violence case, injunction
case, juvenile case, or criminal case should be followed as set forth by the

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judge in that case. It may be necessary to seek a modification of the

no-contact or limitation-of-contact provisions in order to facilitate visitation.

B. The term “local” shall apply to parties residing within 200 driving Kilometers of
each other.

C. The term “nonlocal” shall apply to parties not residing within 200 driving
Kilometers of each other.

[Link] OF VISITATION SCHEDULE: If the parties cannot agree on

visitation, their first alternative is to mediate the conflict. Even if mediation does
not work then the court can pass an appropriate order in terms of the visitation
schedule for parties to comply.

11. MEDICATION, ILLNESS OR ACCIDENT: If medication or therapy has been

prescribed for the child, then both parents shall without fail provide the child all
medical prescription dosages, treatment and/or therapy as may be prescribed
for the child. The parents shall share the health care professional's name and
phone number as well as instructions for treatment. If the child becomes ill or is
involved in an accident, and treatment by a medical professional is obtained, the
parent who has the child at the time of the illness or accident shall notify the other
parent as soon as practicable but no later than three (3) hours after the incident or
diagnosis. ILLNESS OF THE CHILD SHALL NOT PREVENT VISITATION WITH
THE CHILD, UNLESS THE CHILD IS HOSPITALIZED. NON CUSTODIAL
PARENT CAN VISIT THE CHILD IN HOSPITAL.

[Link]: Provided that both parents have telephones in their

homes, the child shall be entitled telephone communication at least once every
day with both parents. Each parent shall immediately deliver to the child all
letters, cards, e-mails, correspondence, telephone messages, gifts, toys,
clothes and other items sent to that child by the other parent. Neither parent shall
withhold, return, destroy, give away, sell or otherwise dispose of any such items.
If either parent plans a vacation or trip out of town with the child for three (3) days
or more, that parent must provide the other parent with a general itinerary, a
phone number where the child can be reached, and the dates of departure and
return. Each Parent shall provide the other Parent promptly upon being
requested to do so, with information concerning the well-being of said children
including, but not limited to; monthly school attendance reports, reports
concerning completion of homework, copies of report cards, school meeting

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notices, vacation schedules, class programs, requests for conferences, results

of diagnostic tests, notices of activities involving said children, samples of school
work, order forms for school pictures, communications from health care
providers; the names, addresses and telephone numbers of all schools,
preschools, regular day care providers, all health care providers, counselors, or
other activity supervisor, and friends, schoolmates and relatives.

[Link] EVENTS: Both parents shall be entitled and are encouraged to

attend and participate in the child's special events, such as school programs,
graduation, sports, recitals, and other extracurricular activities. When the child
has extracurricular activities, the parent caring for the child when the activity is
scheduled should assure the child's attendance. Each parent shall advise the
other parent of extracurricular activities in which the child participates within
twenty-four (24) hours of notification of an event or activity. Each parent shall
make an effort not to schedule activities for the child that interferes with the other
parent's visitation time with the child.

[Link] VISITATION:

a. The Non-custodial parent shall be entitled to exercise other reasonable

visitation in the locale of the child's primary residence or at other places like
club, place of worship, shop, ground, mall, upon reasonable notice subject to
a minimum of 12 hours notice to the custodial parent whenever. There may be
need where the non-custodial parent may wish and desire that the child
should be present on certain occasions such as poojas, religious functions,
birthdays, anniversary celebration, inaugurations, marriage, or emergencies
such as untimely death or hospitalization of a close relative such as
grandparent/relations etc. In such circumstances the custodial parent shall
allow access of the child immediately.

[Link] AND CLEAN CLOTHING FOR VISITATION: Adequate and clean

clothing shall be supplied by the custodial parent and all these clothes shall be
returned in the same clean condition by the Non-custodial parent to the custodial
parent after each visitation period.

[Link] TO RELOCATE: Neither party to the suit can relocate unless final
visitation rights agreement as set out is signed and finalized.

[Link] OF INTENT TO RELOCATE: In the event that either parent intends to

relocate outside of local area of residence of the non-custodial parent, he/she

9
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shall provide the other parent with ninety (90) days written notice prior to any
relocation. This is a notice provision only and does not eliminate the need for
court approval of such relocation if legally necessary. In the event such
relocation does take place and the custodial parent is permitted to relocate and
further if the non-custodial parent in order to be able to be near the child and for
the sake of the child also chooses to relocate then under such circumstances the
non-custodial parent on relocation shall enjoy the same access schedules as
already decided and agreed without any alterations. In the event the non-
custodial parent's status changes from 'Non-local' to 'Local' the access schedule
shall also likewise change and the non-custodial parent shall be entitled to all
provisions of local access.

[Link] IN ADDRESS AND PHONE NUMBERS: Neither parent shall

conceal the whereabouts of the child from the other parent. Each parent shall
advise the other parent at all times of the residence address and telephone
number where the child will be as well as the parent's work telephone number. If
a residence or telephone number changes, the parent making the change shall
notify the other parent personally or by telephone within twenty-four (24) hours
and in writing within seventy-two (72) hours of the change.

[Link] SUPPORT / MAINTENANCE: Non-payment or late payment of child

support is NOT an acceptable reason to deny or interfere with visitation.
Conversely, denial of visitation is NOT justification for non-payment or late
payment of child support. Child support and child visitation are separate and
independent issues and are not to be manipulated by either parent to gain
leverage over the other parent with regard to visitation or child support. Child
support shall NOT stop during visitation periods, unless provided by court order.

[Link] AND THE BEST INTERESTS OF THE CHILD: The parents may
agree to change this schedule to meet the needs of their child. The parents are
encouraged to put such changes in writing. If the parents do not agree to
visitation schedule changes, they must adhere to these guidelines, or a parent in
violation may be held in contempt of court.

[Link] OF CUSTODY: FOR REASONS OF CHILD ALIENATION / TUTORING /

MIND POINSONING / BRAINWASHING / PARENTAL ALIENATION
SYNDROME : In the event it is observed or alleged by concrete substantive
evidence or material placed on record enumerating instances as listed below the
court shall proceed to seriously entertain and decide that the custody of the child

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be shifted from the custodial parent to the non-custodial parents on their being
conclusive evidence to substantiate either any one or more of the following :

A custodial parent who unjustifiably punishes her divorcing or divorced Non-

Custodial parent by:

i. Attempting to alienate their mutual child(ren) from the Non-Custodial parent.

ii. Any act, deed done or caused to be done by the custodial parent which may
lead to the infringement of the right of the non-custodial parent's visitation.

iii. Involving others in malicious actions against the Non-Custodial parent.

iv. Engaging in excessive litigation.

v. The custodial parent specifically attempts to deny her child(ren)regular

uninterrupted visitation with the Non-Custodial parent.

vi. Uninhibited telephone access to the Non-Custodial parent.

vii. Obstructs or causes any obstruction in the Non Custodial parents

participation in the child(ren)'s school life and extracurricular activities.

[Link] pattern is pervasive and includes malicious acts towards the Non-
Custodial parent including:

ix. Lying to the children

x. Lying to others

xi. Violations of law Or Making False Complaints

xii. The disorder is not specifically due to another mental disorder although a
separate mental disorder may coexist.

[Link] SPOUSE OR COMPANION: The parents shall not encourage the child to
call a new spouse or companion “Papa” “Mummy” “Father”, “Dad”, “Mother”,
“Mom”, or similar names, as such is detrimental to the child's relationship with
his/her natural parents and may confuse and adversely affect the child. A
substitute name may be suggested or encouraged. Each parent shall encourage
a new spouse or companion not to confront or to interfere with the other parent's
contacts or visitation with the child and each parent is expected to prevent any
such confrontation or interference. The other parent shall not be adversarial or
hostile to a new spouse or companion but shall be courteous, polite, respectful,
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and non-threatening. Unless otherwise ordered or agreed by the parties, the

parents are expected to speak directly with each other concerning all matters
related to a divorce or separation judgment or order.

[Link] OF THE CHILD & SURNAME: The custodial parent shall not be entitled to
change the name or the surname of the child which has been given to the child as
per either a ceremony performed for the same or the name along with the father's
surname as it appears in the birth certificate.

[Link] OF SCHOOL OR DAYCARE CENTRE: The custodial parent shall not

be entitled to admit, change the school or the daycare centre of the child without
written consent and/or agreement between the parties. If the issues is not being
resolved then such admission, change of school/daycare centre of the child shall
be as per the order of the court.

[Link] OF CHILD FROM DAYCARE OR SCHOOL: In the absence of prior

agreement between the parties and proper notification of the daycare or school -
except in the event of an emergency - the Non-custodial parent shall not remove
the child from daycare or school for visitation or otherwise. This paragraph shall
not be applied to preclude the Non-custodial parent's participation as a parent in
school activities and access to the child at school, to the same extent as afforded
the custodial parent, nor to prevent the Non-custodial parent from picking the
child up after school or daycare if such pickup is pursuant to the parties' visitation
arrangement.

[Link] BY NON-CUSTODIAL PARENT

A. Local (parties residing within 200 driving Kilometers of each other)

i. Twelve (12) hours' notice shall be given by the parent entitled to visitation with
the child if visitation will not be exercised for the weekday or weekend.

ii. A minimum of Three (3) days notice shall be given by the parent entitled to
visitation for a holiday if visitation will not be exercised.

iii. A minimum of Fifteen (15) days' notice shall be given in writing by the parent
entitled to visitation for a period of one week or greater if visitation will not be
exercised.

iv. The parent seeking cancellation shall arrange and pay for babysitting, child
care or other appropriate visitation of the child for the visitation period; to

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the extent such expense is due to the cancellation. ANY VISITATION

CANCELLED BY THE NON-CUSTODIAL PARENT SHALL BE FORFEITED,
UNLESS THE PARTIES AGREE TO SUBSTITUTE VISITATION. THE
REQUIRED CANCELLATION NOTICE IS GIVEN; THE CUSTODIAL PARENT
SHALL NOT UNREASONABLY WITHHOLD SUBSTITUTE VISITATION.

[Link] - NONLOCAL (PARTIES NOT RESIDING WITHIN 200 DRIVING

KILOMETERS OF EACH OTHER):

i. A minimum of three days (3 days) notice shall be given by the parent

entitled to visitation for a holiday or special occasion if visitation will not be
exercised. A minimum of Fifteen (15) days' notice shall be given in writing
by the parent entitled to visitation for Diwali, Christmas, Summer vacations or
an annual visitation period of one (1) week or greater if visitation will not
be exercised. If the cancellation is NOT agreed to by both parents, the
parent seeking cancellation must arrange and pay for child care or other
appropriate supervision of the child for the visitation period, to the extent
such expense is due to the cancellation. ANY VISITATION CANCELLED
BY THE NON-CUSTODIAL PARENT SHALL BE FORFEITED, UNLESS
THE PARTIES AGREE TO SUBSTITUTE VISITATION. IF THE
REQUIRED CANCELLATION NOTICE IS GIVEN, THE CUSTODIAL
PARENT SHALL NOT UNREASONABLY WITHHOLD SUBSTITUTE
VISITATION.

ii. ADDITIONAL VISITATION: The Non-custodial parent shall be entitled to

exercise other reasonable visitation in the local of the child's primary
residence upon reasonable notice to the custodial parent.

[Link]

A. Local (parties residing within 200 driving Kilometers of each other): The Non-
custodial parent shall pick up the child for visitation and the custodial parent
shall pick up the child after visitation. A third party, agreed to by both parents,
may substitute for one of the parents in transporting the child to and from
visitation. The parties should reasonably consider a parent's current spouse
or a family member of the child as a substitute. A party who moves and thereby
causes an increase of more than thirty (30) Kilometers in driving distance
between the two parents, shall bear responsibility for transportation in

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absence of Court intervention. The place of pick up and drop of the child shall be
agreed to in writing by both the parents. However the place of pick up and drop
shall either be the residence of the custodial parent or the family court children's
complex or as ordered by the Hon'ble court.

B. Nonlocal (parties not residing within 200 driving Kilometers of each other): The
court shall decide the issue of transportation on a case by case basis absent an
agreement by the parties.

[Link]: A child shall be picked up or delivered within thirty (30) minutes of the
scheduled time of exchange. If the Non-custodial parent is more than thirty (30)
minutes late to pick up the child for visitation and creates a hardship as a result,
visitation shall be forfeited for that visitation period. If legitimate reasons exist for
delay in picking up the child for any weekend or longer visitation, and beginning
the visitation the next day does not create a hardship on the custodial parent, the
Non-custodial parent may pick up the child at a mutually agreed upon time later
in the visitation period. The Non-custodial parent shall give the custodial parent
as much notice as reasonably possible of any delay in picking up the child.

[Link]: Parties can vary; alter the interim access schedule as per
convenience within a period of one week from the date of presentation of the
petition before the Hon'ble court or within one week from the date of their meeting
with the counselor for mediation whichever is earlier. In the event parties fail to
arrive at a decision and conclude on the interim visitation schedule then the
counselor shall draw up an interim visitation schedule and place the same before
the Hon'ble court to be made final by an order of the court.

[Link] NIGHT ACCESS: Court's are under obligations to consider the child
spending equal time, or substantial and significant time, with each parent. In
making a parenting order the court 'must consider' making orders that the child
spend equal time, or if not equal then substantial and significant time, with each
parent. 'Substantial and significant time' is defined to mean, essentially,
weekdays and overnight weekends and holidays, times that allow the parent to
be involved in the child's daily routine as well as occasions and events that are of
particular significance to the child or the parent child to maintain or consolidate a
secure attachment with a parent whose behavior is oriented only to 'visiting'
rather than 'care-giving'.

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l Children have the right to know and be cared for by both their parents, regard -
less of whether their parents are married, separated, divorced, have never
married or have never lived together; and

l Children have a right to spend time on a regular basis with, and communicate
on a regular basis with, both their parents and other people significant to their
care, welfare and development (such as grandparents and other immediate
family members & relatives);and

l Children have a right to enjoy their culture (including the right to enjoy that
culture with other people who share that culture).

Over Night Access at home of the non-custodial parent should be encouraged at

an early stage so that the children have a close and continuing relationship and get
the love, affection of not only parents but also of grandparents and other immediate
family members like uncle, aunties, cousins etc. The healthy emotional
development of children depends upon their early experience of a continuous,
emotionally available care-giving relationship, through which they are able to form
an organized attachment, and to develop their human capacities for thought and
relationships essentially,

Children have their right to childhood of hopeful existence free of exploitations,

neglect. Children need consistent support system as well as love, hope and
encouragement, all these things and more are required in order to experience
childhood to the fullest and to eventually develop into a healthy, capable adult for the
full and hormonal development of his or her personality children should grow up in a
family environment in an atmosphere of happiness, love and understanding which is
very important for their overall growth and well being. The children should be fully
prepared to live life in society, in the spirit, dignity tolerance, freedom, equality and
solidarity. However young children are subjected to exploitation especially in a
broken marriage where the court has to intervene to protect the rights of the child.
Children have to be ensured that the their right to parental access, right to quality of
life, right to be cared for, and right to freedom of expression is not compromised and
children get love and affection from both parents and grandparents and immediate
family members. They should have a sense of belonging to a healthy family
environment maintaining their heritage so that the genealogy of the child is not lost
after attaining adulthood and they are able to be linked with their ancestors.
Overnight access should therefore be encouraged at an early stage.

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CHAPTER – 3

LOCAL GUIDELINES

(PARTIES RESIDING WITHIN 200 DRIVING KILOMETERS OF EACH OTHER)

C. FINAL VISITATION (CHILDREN BETWEEN AGE 0–TO-36 MONTHS)

The following visitation guidelines should balance the needs of both parent and
child, regardless of whether that child has older siblings that enjoy extended
visitation with the Non-custodial parent.

[Link]: The Non-custodial parent shall be entitled to overnight weekend

visitation every weekend. For children between 0 to 36 months visitation shall be
between 11.00 A.M. to 2.00 P.M. or 4.30 P.M. to 7.30 P.M. on Saturday and
Sunday and Twice (two times) during weekday between Monday to Friday for 1½
hours (90 Minutes). One of the most important considerations is for attachment
with both parents. It is important for visitation to provide opportunities to establish
a bond between the child and the parent. Generally, frequency of visitation is
given more consideration than duration of visitation. Making up for less frequent
visits by increasing the length of time of visits is not recommended for infants
recommended daily visits, but if this is impractical, then visits should be spaced
no more than two days apart. There is research, however, to show that overnight
visits with the parent can occur, provided that the parent has been a significant
caretaker and a primary attachment figure.

[Link] VISITATION: The Non-custodial parent shall be entitled to visitation

two (2) evenings per week during weekday between Monday to Friday for 1½
hours (90 Minutes). These shall be the same two evenings every week and
varied only if the weekday visitation schedule conflicts with the holiday or
vacation schedule. If the parties cannot agree, weekday visitation shall be on
Monday and Wednesday.

[Link]: The non-custodial parent shall be entitled to spend at least 3 Three

th
hours on the holiday or festival day including 15 August, 26the January, 1st
May (Maharashtra day;) , 2nd October (Gandhi Jayanti), 14th November
(Children's day) excluding the time of travel. Only where it is not possible to
share during the festival day due to reasons of distance or otherwise. In odd-
numbered years, the Non-custodial parent shall be entitled to spend with the
minor child; in even numbered years, the schedule shall be reversed. A party's

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entitlement to Holiday visitation overrides the other party's right to regularly

scheduled weeknight or weekend visitation. If either or both parties celebrate
other holidays, such holidays should be written down, divided and alternated
each year.

Note: For children aged between 0 to 36 months it shall be open for the custodial
parent to remain present during visitation.

i. Visitation shall be from 11:00 a.m. until 2:00 p.m. or from 4:00pm to 7:00pm on
the official holiday.

ii. Mother's day Shall be spent with the mother every year with priority over any
other visitation schedule; visitation hours shall be from 11:00 a.m. until 2:00
pm or 4:00pm to 7:00pm.

iii. Father's day shall be spent with the father every year with priority over any
other visitation schedule; visitation hours shall be from 11:00 am. until 2:00
p.m. or 4:00pm to 7:00pm

iv. Diwali / Eid / Moharram / Makarsakaranti / Janmashtmi/Mahavir Jayanti /

Mahashivratri / Ramnavi / Parsi New Year / Dussera / Laxmipoojan / Bhau
Bheej / Gurunanak Jayanti / Raksha Bandhan / Navratri / Ganesh Chaturthi /
Anant Chaturthi / Holi visitation to the non-custodial parent shall be for a
period of 3 three thours excluding travelling time and timings shall be decided
between the parties mutually.

[Link] WEEKEND OVERNIGHT ACCESS : Festivals which last for more

than seven days especially Navratri, Ganpati and Ramzan and for which long
holidays are not available to the child the non-custodial parent shall be entitled to
one weekend overnight stay during this stretch of festival. A party's entitlement to
this festival weekend overnight stay overrides the other party's right to regularly
scheduled weeknight or weekend visitation.

[Link]'S BIRTHDAY: shall be spent with the mother every year. If the mother
is the Non-custodial parent and the mother's birthday is on Sunday, Monday,
Tuesday, Wednesday, or Thursday, visitation hours shall be from 5:00 p.m. until
8:00 p.m. If the mother's birthday is on Saturday or Sunday, visitation shall be
from 11:00 a.m. to 4.00 p.m. This visitation will not affect holiday visitation.

[Link]'S BIRTHDAY: shall be spent with the father every year. If the father is
the Non-custodial parent and the father's birthday is on Sunday, Monday,

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Tuesday, Wednesday, or Thursday, visitation hours shall be from 5:00 p.m. until
8:00 p.m. If the father's birthday is on Saturday or Sunday, visitation shall be from
11:00 a.m. to 4.00 p.m. This visitation will not affect holiday visitation.

[Link]'S BIRTHDAY: The child shall celebrate his or her birthday with the Non-
custodial parent in odd-numbered years and the custodial parent in even-
numbered years. In years that the child spends his or her birthday with the Non-
custodial parent, if the child's birthday falls on Sunday, Monday, Tuesday,
Wednesday, or Thursday, visitation shall be from 5:00 p.m. until 8:00 p.m.; if the
child's birthday falls on Saturday or Sunday, visitation shall be from 11:00 a.m. to
4.00 p.m.. The parent holding a birthday party for the child may wish to consider
inviting the other parent.

[Link] VISITATION FOR CHILDREN (UNDER AGED 0-TO-36 MONTHS):

Unless otherwise agreed to by the parties, regular weekend and weekday
visitation shall be maintained year round in lieu of a designated annual visitation
period.

D. FINAL VISITATION (CHILDREN 36 MONTHS AND OLDER)

[Link]: The Non-custodial parent shall be entitled to weekend visitation

every other weekend. Visitation shall begin Friday at 6:00 p.m. and end at 6:00
p.m. on Sunday. If parties wish to avail continuous every week access then every
weekend access shall begin from Friday at 6.00 p.m. and end on Saturday 6.00
p.m. or Saturday 6.00 p.m. to Sunday 6.00 p.m. It is not the responsibility of the
custodial parent to provide food or shelter for the child during the Non-custodial
parent's visitation.

[Link] VISITATION: If the parties reside within thirty (30) Kilometers driving
distance of each other, the Non-custodial parent shall have visitation two (2)
evening per week for 2 two hours between 6.00 p.m. to 8.00 p.m., but shall
exercise the weekday visitation in the locale of the child's primary residence or
within the radius of 10 ten kilometers. The preceding sentence shall not preclude
occasional travel beyond the thirty (30) Kilometers for special weekday events.
The weekday visitation shall be on the same evening each week and varied only
if it conflicts with the holiday or vacation schedule. If the parties cannot agree on
the weeknight and if there are no scheduled activities for Wednesday, it shall be
Wednesday evening. If there are activities scheduled for Wednesday, the Non-
custodial parent shall have first choice of an alternate weekday for weekday
visitation.
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[Link]: The non-custodial parent shall be entitled to spend at least 4 Four

th
hours on the holiday or festival day including 15 August, 26the January, 1st May
(Maharashtra day ) , 2nd October (Gandhi Jayanti), 14th November (Children's
day) excluding the time of travel. Only where it is not possible to share during the
festival day due to reasons of distance or otherwise. In odd-numbered years, the
Non-custodial parent shall be entitled to spend with the minor child; in even
numbered years, the schedule shall be reversed. A party's entitlement to Holiday
visitation overrides the other party's right to regularly scheduled weeknight or
weekend visitation. If the parties celebrate religious holidays other than those
defined in sections A and B below, those religious holidays shall be mutually
agreed upon in writing, divided, and alternated each year. In the absence of an
agreement, the court shall allocate those religious holidays between the parties..

i. Visitation shall be from 11:00 a.m. until 3:00 p.m. or 4.00 p.m. to 8.00 p.m. on
the official holiday.

ii. Mother's day Shall be spent with the mother every year with priority over any
other visitation schedule; visitation hours shall be from 11:00 a.m. until 3:00
p.m. or 4.00 p.m. to 8.00 p.m. Father's day shall be spent with the father
every year with priority over any other visitation schedule; visitation hours
shall be from 11:00 a.m. until 3:00 p.m. or 4.00 p.m. to 8.00 p.m.

iii. Diwali / EId / Moharram / Makarsakaranti / Janmashtmi / Mahavir Jayanti /

Mahashivratri / Ramnavi / Parsi New Year / Dussera / Laxmi poojan / Bhau
Bheej / Gurunanak Jayanti / Raksha Bandhan / Navratri / Ganesh Chaturthi /
Anant Chaturthi / Holi visitation to the non-custodial parent shall be for a
period of 4 Four hours excluding travelling time and timings shall be decided
between the parties mutually.

NOTE: Non-custodial parent shall be entitled to take the child at his residence
during this period of access.

[Link] WEEKEND OVERNIGHT ACCESS : Festivals which last for more

than seven days especially Navratri, Ganpati and Ramzan and for which long
holidays are not available to the child the non-custodial parent shall be entitled to
one weekend overnight stay during this stretch of festival. A party's entitlement to
this festival weekend overnight stay overrides the other party's right to regularly
scheduled weeknight or weekend visitation.

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44 FIFTY % VACATION: The non custodial parent shall be entitled to 50% of each
vacation during the year the child has vacations for Diwali, Christmas and Summer.

[Link]'S BIRTHDAY: shall be spent with the mother every year. If the mother is
the Non-custodial parent and the mother's birthday is on Sunday, Monday,
Tuesday, Wednesday, or Thursday, visitation hours shall be from 5:00 p.m. until
8:00 p.m. If the mother's birthday is on Saturday or Sunday, visitation shall be from
11:00 a.m. to 4.00 p.m. This visitation will not affect holiday visitation.

[Link]'S BIRTHDAY: shall be spent with the father every year. If the father is the
Non-custodial parent and the father's birthday is on Sunday, Monday, Tuesday,
Wednesday, or Thursday, visitation hours shall be from 5:00 p.m. until 8:00 p.m. If
the father's birthday is on Saturday or Sunday, visitation shall be from 11:00 a.m. to
4.00 p.m. This visitation will not affect holiday visitation.

[Link]'S BIRTHDAY: The child shall celebrate his or her birthday with the Non-
custodial parent in odd-numbered years and the custodial parent in even-
numbered years. In years that the child spends his or her birthday with the Non-
custodial parent, if the child's birthday falls on Sunday, Monday, Tuesday,
Wednesday, or Thursday, visitation shall be from 5:00 p.m. until 8:00 p.m.; if the
child's birthday falls on Saturday or Sunday, visitation shall be from 11:00 a.m. to
4.00 p.m.. The parent holding a birthday party for the child may wish to consider
inviting the other parent.

E. CHILDREN IN DIFFERENT AGE GROUPINGS:

i. If there are two (2) or more children whose ages span different age
groupings entitling the children to different visitation periods with the Non-
custodial parent, then the younger children shall get the benefit of the
oldest child's visitation schedule.

ii. THIS PROVISION DOES NOT APPLY TO CHILDREN AGED BETWEEN 0

TO 36 MONTHS. PARENTS OF A CHILD AGED BETWEEN 0 TO 36
MONTHS MUST FOLLOW THE VISITATION SCHEDULE FOR THAT
CHILD REGARDLESS OF WHETHER OR NOT THE CHILD HAS OLDER
SIBLINGS ON A DIFFERENT SCHEDULE.

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[Link] ANNUAL VACATION:

i. The Non-custodial parent shall have first choice of annual vacation visitation
and shall designate such choice in writing no later than March 1 of each year.
Subject to the Non-custodial parent parent's designated choice on or before
March 1, the custodial parent shall designate in writing his or her choice for
annual vacation by March 15th of each year.

ii. The custodial parent's annual vacation shall be scheduled around the Non-
custodial parent's annual vacation and may override no more than one (1)
weekend and three (3) weeknight regularly scheduled visitation periods of the
Non-custodial parent.

iii. A parent's first choice of annual vacation shall not interfere with the other
parent's entitlement to the child's birthday or the Diwali Holiday.

iv. Unless specifically prohibited by Court order, either parent may temporarily
remove the child from the jurisdiction of the court for purposes of annual
visitation only if the parent travelling with the child provides the other parent
with a written general itinerary and phone numbers where the child can be
contacted during the vacation.

v. Annual vacation shall not conflict with the school calendar.

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CHAPTER - 4

NONLOCAL GUIDELINES

(PARTIES NOT RESIDING WITHIN 200 DRIVING KILOMETERS OF EACH

OTHER)

[Link] (CHILDREN AGED BETWEEN 0 TO 36 MONTHS)

Visitation for children under 36 months old shall be established by the court on a
case-by-case basis.

[Link] VISITATION: The Non-custodial parent shall be entitled to

exercise other reasonable visitation in the local of the child's primary residence
upon reasonable notice to the custodial parent.

[Link] (CHILDREN AGED 36 MONTHS & OLDER)

[Link]: The Non-custodial parent shall be entitled to at least one weekend

visitation every week. Visitation shall begin either on Saturday and / or Sunday at
11:00 a.m. and end at 6:00 p.m. It shall be open for the parties to work out more
than one visitation per week as per mutual agreement.

[Link]: If the parties celebrate religious holidays other than those defined in
sections 41 above, those religious holidays shall be mutually agreed upon in
writing, divided, and alternated each year. In the absence of an agreement, the
court shall allocate those religious holidays between the parties.

[Link] % VACATION: The non custodial parent shall be entitled to 50% of each
vacation during the year the child has such as Diwali, Christmas and Summer
vacation.

Note: In case non-custodial parent is unable to avail vacation access during a

particular year he/she shall be entitled to be compensated by full vacation
sharing during the subsequent year.

[Link] SUMMER VACATION: Visitation shall be as follows:

A. CHILDREN IN DIFFERENT AGE GROUPINGS: If there are two (2) or more

children whose ages span different age groupings entitling the children to
different visitation periods with the Non-custodial parent, the younger children
get the benefit of the oldest child's visitation schedule. THIS PROVISION
DOES NOT APPLY TO CHILDREN UNDER AGED BETWEEN 0 TO 36.
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PARENTS OF A CHILD AGED BETWEEN 0 TO 36 MONTHS MUST FOLLOW

THE VISITATION SCHEDULE FOR THAT CHILD REGARDLESS OF
WHETHER OR NOT THE CHILD HAS OLDER SIBLINGS ON A DIFFERENT
SCHEDULE.

[Link] ANNUAL VACATION: The Non-custodial parent shall have first

choice of annual vacation and shall designate such choice in writing no later than
April 1 of each year. Subject to the Non-custodial parent parent's designated
choice on or before April 1, the custodial parent may plan an annual vacation and
shall notify the Non-custodial parent of those dates by April 15th of each year.

i. A parent's first choice of annual vacation shall not interfere with the other
parent's entitlement to the child's birthday, unless the Non-custodial parent
will be denied the full annual visitation period if the custodial parent exercises
visitation on the child's birthday. If the child's birthday falls within the
anticipated summer school break, and if the parties are unable to reach a
specific agreement about an annual vacation schedule, the parties shall
mediate the annual vacation scheduling issue before final hearing, unless
mediation is excused by court order. If the parties are unable to resolve the
annual vacation schedule issue through agreement or mediation, the parties
shall present the issue to the court before entry of a final visitation order.

ii. Unless specifically prohibited by Court order, either parent may temporarily
remove the child from the State of Maharashtra for purposes of Annual
Visitation only if the parent traveling with the child provides the other parent
with a written general itinerary and phone numbers where the child can be
contacted during the vacation.

iii. Annual vacation shall not conflict with the school calendar.

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CHAPTER – 5

JOINT CUSTODY

[Link]: The most fundamental principle underlying child rights is the

inherent right of every child to be brought up in the secure comfort of a family
environment and to enjoy the love and affection of both its parents. These are
rights enshrined in the U.N. Charter for Child Rights, 1989 which has been
adopted and ratified by India.

[Link] ALTERNATELY: That 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;

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CHAPTER - 6

[Link] AND PSYCHOLOGICAL EVALUATION OF PARENTS AND THE

CHILD.

A. Under Section 12 of the Family Courts Act, 1984, the Court is empowered to
secure the services of medical experts; the scope of Section 12 envisages:
For settling a problem the Judge of the Family Court cannot merely take his
own personal decision. Under this section, he has to rely and consult an
expert as while deciding the dispute between husband and wife, the fate and
future of innocent children, if there are any, has to be kept in mind. The Judge
therefore will have to act as all in one. If either or both litigants are
quarrelsome, the altercations definitely lead to litigation on various grounds
and their children will be the worst sufferers. In such cases the opinion of
medical and welfare experts will be of much use.

B. The family Court either on an application by one of the litigant or the court suo
motto while exercising its discretion to conduct a psychiatric / psychological
evaluation of both the parents including the child in order to ensure that
custody is given to the emotionally and mentally fit parent, thus ensuring
welfare of the child. Procedure for such psychological evaluation shall be as
per procedure prescribed.

C. Failure in marriages is sometimes due to lack of awareness or realization

among the litigants where often one of the partner suffers from a personality
disorder and/or adjustment disorder which can be easily diagnosed through
psychological evaluation.

D. The child/children are psychologically evaluated (by play therapy) to

determine stress, depression level & also any bad tutoring or poisoning of
mind to alienate the child from other parent. On diagnosis if confirmed the
child is assisted through, intervention of psychological counseling.

E. In fact Supreme Court has come down heavily for not using the services of
medical experts by the lower courts as provided under sec 75e of CPC.
(Ref: Sharda versus Dharampal (2003) 4 SCC 493))

[Link] EVALUATION:

This schedule provides for assistance of medical and welfare experts to be

sought and taken by either of the parent either suo moto by the Family Court or on
an application by either party; to secure the services of the medical expert or
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such person including a person professionally engaged in promoting the welfare

of the family as the court may thing fit for the purposes of assisting the Family
court.

I. PSYCHIATRIC AND PSYCHOLOGICAL EVALUATION OF PARENTS AND

THE CHILD.

Under Section 12 of the Family Courts Act, 1984, the Court is empowered to
secure the services of medical experts; however, the family Court rarely uses the
same. The scope of Section 12 envisages: For settling a problem the Judge of
the Family Court cannot merely take his own personal decision. Under this
section, he has to rely and consult an expert as while deciding the dispute
between husband and wife, the fate and future of innocent children, if there are
any, has to be kept in mind. The Judge therefore will have to act as all in one. If
either or both litigants are quarrelsome, the altercations definitely lead to
litigation on various grounds and the children will be the worst sufferers. In such
cases the opinion of medical and welfare experts will be of much use.

Should it not be mandatory for the family Court either on an application by one of
the litigant or the court suo moto while exercising its discretion to conduct a
psychiatric / psychological evaluation of both the parents including the child in
order to ensure that custody is given to the emotionally and mentally fit parent,
thus ensuring welfare of the child.

In fact Supreme Court has come down heavily for not using the services of
medical experts by the lower courts as provided under sec 75e of CPC. (Ref:
Sharda versus Dharampal (2003) 4 SCC 493))

A common practice followed in US courts while deciding child custody by

conducting Psychological evaluation tests such as MMPI, Rorschach ink blot test
etc., which reveals any litigant suffering from any mental/personality disorder,
drug abuse, alcoholic, manipulative, tendency to speak lies, tendency to
abuse/physical attack towards spouse etc.

However, if in the event both the parties/litigants are refusing or do not find
necessary to be evaluated, then the court should follow the Primary caretaker
principle as detailed in para III below. And if either one of the litigant (child's father
or mother) refuses then as per law adverse inference shall be drawn.

The child/children are psychologically evaluated (by play therapy) to determine

stress, depression level & also any bad tutoring or poisoning of mind to alienate
the child from other parent.
26
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On diagnosis if confirmed the child is assisted through, intervention of

psychological counseling.

Often Indian courts fail to differentiate between psychosis & mental disorders.
Individuals suffering from mental disorders are often intelligent but with very poor
emotional state, (high intelligent quotient but poor emotional quotient), who tend
to suffer from uncontrolled rage & temperament, violent, aggressive,
manipulative, & often speak lies. This can be diagnosed only through specific
psychological tests. Hence, merely interviewing litigants by the court will never
give a clue whether the individual is suffering from mental/personality disorder
except psychosis.

In fact Family Courts should resort to referring litigants for diagnosis to such
reputed and high caliber psychologists/psychiatrists identified/appointed by the
Family Courts / High Court.

While referring litigants for the conduct of psychiatric and psychological

evaluation, Courts need not be concerned as regards the expenses involved as
Rule 21 of The Family Courts (Maharashtra) Rules, 1987 provides for the same,
wherein expenses (including travelling expenses) are to be paid out of the
revenues of the State Government. However, if the litigants are willing the same
may be born by the respective litigants.

[Link]

a. The parent with primary custody (parent who is having custody of child since
birth and is taking care of the day to day and hour to hour need of the child)
shall be referred to herein as the custodial parent, and the other parent shall
be referred to as the Non-custodial parent.

[Link]'S WISHES:

Often the Family court decides the child's custody based on the wishes of the
child during an interview which the court conducts on the child of tender age who
is not his own master and is not capable of forming any intelligent, prudent or well
reasoned preference of a parent.(in other words if child expresses he/she is
unwilling to go to school, will the Family court honour the wishes,).

The court has to ensure the welfare and the best interest of the child's upbringing
and not to be influenced by the mere wish of the child especially in some cases
where the child is heavily tutored or brainwashed or poisoned against the non-
custodial parent while deciding custody.

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THE GENESIS OF FASLE ACCUSATION

An award winning book published by the American Psychological Association

shows just how easily children can be manipulated to give false accounts that
bad things have happened to them.

In one study children were simply asked to repeatedly think about whether
different events had ever happened to them, such as getting their finger caught
in a mousetrap and going to the hospital to get the trap off. After ten sessions,
more than half the children told false stories about the fictitious events in their
lives. In fact, their stories were so elaborately embellished with details that
experts could not detect which events were real and which were not. Even more
remarkable, after the researches told the children that the events never really
happened, many of the children continued to insist that they remembered the
fictitious events occuring.

One four-year-old-boy had already been told by his parents that the whole
mousetrap story was just in his imagination and that nothing like this ever
happened. Yet when Stossel asked the boy if he ever got his finger caught in a
mousetrap, with his parents beside him, this child said he remembered the event
and then gave a detailed account. Stossel reminded him that his parents already
said that it never happened, but the boy protested. “It really did happen, I
remember it.”

In another study, a stranger named “Sam Stone” visited a preschool classroom.

He said hello, walked around the room for two minutes, then said good-by and
left. That was it. He touched nothing. During the next ten weeks, the children
were interviewed four times and asked to describe Sam Stone’s visit. One month
following the fourth interview, another adult interviewed the children, this time
asking about two events which did not occur, “Did Sam Stone do anything to a
book or a teddy bear?”

The investigators learned that they could produce false reports of Sam Stone’s
behaviour both by bad-mouthing Sam Stone and by asking the children leading,
suggestive questions. The bad-mounthing took the form of telling stories to the
children, prior to Sam Stone’s visit, about Sam Stone’s clumsiness. For
example:

“You’ll never guess who visited me last night [pause] that’s right. Sam Stone! And
guess what he did this time? He asked to borrow my Barbie and when he was

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carrying her down the stairs, he tripped and fell and broke her arm. That Sam
Stone is always getting in to accidents and breaking things.

The day after Sam Stone’s visit, the children were shown a soiled teddy bear
that had not even been in the room during Sam’s visit. They were asked if they
knew how the teddy bear had been soiled. An example of a suggestive question
was following: “Remember that time Sam Stone visited your classroom and
spilled chocolate on that white teddy bear? Did he do it on purpose or was it an
accident?”

By the time of the final interview, an astounding 72 percent of the youngest

preschoolers falsely incriminated Sam Stone. Like the children in the mousestrap
study, they embellished their stories with fabricated details, such as reporting
that they saw Sam Stone on his way to the store to buy chocolated ice-cream.
And, once again the children fooled the experts.

The investigators showed videotaped interviews of the children to specialists

who interview children for purposes of criminal investigators and who treat
children suspected of having abused. These experts were confident in their
judgements about which events really occurred and which were made up. But
the experts were wrong. In fact the very children they rated as most accurate
were the children who were least accurate. Substitute Mommy or Daddy for Sam
Stone and you begin to see how children can be manipulted to give convincing,
yet false, negative reports about a parent.

False beliefs about abuse hurt children beyond the damage done by the
alienation. A child who believes that she has been sexually abused by a relative
can develop problems similar to those of a child who has actually suffered
abuse. The child comes to distrust her caretakers in the same way she would if
actually abused. Her view of sexuality is corrupted at an early age and this may
lead to problems in sexual adjustment as an adult. Her ability to trust in close
relationships is impaired. This may interfere with her relationships throughout
her life.

Thus a child can be manipulated to create alienation.

Interviewing Children with Parental Alienation Syndrome : Children

suffering with a parental alienation syndrome may present the judge with a
convincing picture. By the time the child reaches the judge, he or she has
developed a well-rehearsed litany of complaints against the presumably hated
parent. This can be quite convincing, especially because the script has probably

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been rehearsed many times over with the allegedly preferred parent. Also, by the
Lime the child reaches the judge, he or she has probably presented the scenario
to a variety of attorneys and mental health professionals. This has given them
the opportunity to practice and sharpen their speeches. There have been a
number of occasions when judges have been completely taken in and have not
appreciated that they were being handed a ''bill of goods:' These children have a
way of "snow balling" even experienced psychologists and psychiatrists, so one
cannot be too critical of judges here. Present below are series of questions that
judges should find useful when interviewing these children. It is important to
appreciate that the questions provided here relate to the more common
situation, the one in which the father is the hated parent and the mother the loved
one. however when the situation is reversed (the mother the hated one and the
father the loved one) One should obviously reverse the questions.

Describe your custodial parent (mother / father) to me. Children with parental
alienation syndrome typically provide only positive responses. If any negatives are
provided, they will usually be minimal. If asked to elaborate upon the negatives, only
inconsequential criticisms will be provided. Children who are "normal" or suffer with
other kinds of psychiatric disturbances will generally be able to list both positives
and negatives about each parent. The complete idealization of a parent is a clue to
the presence of this disorder.

Describe your non-custodial parent (mother / father) to me. The child with
parental alienation syndrome will enumerate various criticisms at great length.
These will be both present and past. Often the past indignities will be about
experiences that other children would consider normal or would have forgotten long
ago. Sometimes a complaint will be about an event which the child has not actually
observed but which the mother has described. The child will accept as valid the
mother's rendition and not give any credibility to the father's refutation. When it is
pointed out to the child that few if any positives have been described, the child will
claim flatly that there are none. Inquiries into past good times between the child and
the father will be denied as nonexistent or the child will claim that these events were
painful and the child's professed enjoyment of them stemmed from the fear of
punishment for not doing so. It is this complete one-sidedness of the response, the
total absence of normal ambivalence, that should alert the interviewer to the fact that
one is probably dealing with a child suffering with parental alienation syndrome.

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How do you feel about your Non-custodial parent’s (father / mother ) family?
The child with a parental alienation syndrome will generally respond that all
members of the father's extended family, even the child's own grandparents and
previously loved aunts, uncles and cousins, are somehow obnoxious and vile. When
asked for specific reasons why there is absolutely no contact at all with any of these
individuals, no compelling reasons are provided. Often inconsequential reasons are
given. Attempts to impress upon the child how important it is to have relationships
with these loving relatives is futile. The child extends the noxious view of the father to
the father's extended family. The child will describe no sense of loss or loneliness
over this self-imposed removal from the father's extended family. If a potential or
actual stepmother is involved with the father, this hatred will extend to her and her
extended family as well.

Does your custodial parent (mother / father) interfere with your visiting with
your Non-custodial parent (mother / father) ? Generally the child will describe
absolutely no interference on the mother's part. Often the child will proudly describe
the mother's neutrality and state that the decision is completely his or her own.

Why then don't you want to visit with your (Non-custodial parent) father /
mother? The child may give very vague reasons. When asked to give specific
reasons these children may describe horrible abuses in a very convincing way. In
addition, they often provide gross exaggerations of inconsequential complaints.
They make "mountains out of mole hills" and will dwell on frivolous reasons for not
visiting. Often they will claim that they want absolutely no contact at all with the father
for the rest of their lives, or at least not before they are adults. When it is pointed out
to these children that the vast' majority of other children would not cut their fathers off
entirely, forever, for such "indignities:' they insist that their total rejection is justified.

Does your mother / father (custodial parent) harass or bother you? Healthy
children generally will give some examples of "harassment" such as being made to
turn off the television, do homework, or go to bed earlier than they want. Children
with parental alienation syndrome describe no such harassments. They often will
describe their (custodial parent) mother as being perfect and as never asking them
to do things they don't want. This is obviously a fabrication and is a manifestation of
the whitewash of the mother. You use the word harassment with these children
because it is a common expression utilized by mothers of parental alienation
syndrome children. The father's (non-custodial parent’s) overtures for involvement
with the child are generally referred to as harassment by the mother (custodial
parent). If the child is unfamiliar with the word harassment, It can be substitute by
"bother you a lot."

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Does your father (non-custodial parent) harass you? These children are likely to
describe in great detail the (non-custodial parent’s) father's "harassments."
Generally, they involve attempts on his part to gain contact with the children. Letters,
telephone calls, and legal attempts to gain visitation are all clumped under the term
"harassments." Although the father's initial overtures may have been spaced
reasonably, with mounting frustration over rejection and alienation, the father's
overtures increase in frequency and intensity. The love and affection that is at the
foundation of these overtures is denied completely by both the mother and the
parental alienation syndrome child. Rather, they are viewed simply as onerous
harassments. The above questions are general ones. The judge does well to ask
more specific questions pertinent to the particular case. These might include
questions regarding why the child wants to change his or her name back to the
mother's maiden name, why the father's Presents were thrown in the garbage
(usually in the mother's presence), why the child wants to have the father still
contribute to his or her education even though he or she never wants to see the
father again, what the brother's and sister's reasons are for not wanting to see the
father (these too often prove inconsequential). and so forth.

Judges who interview children in chambers must be made aware of the fact that
these children may be very convincing. They may be taken in by the litany of
complaints and give such weight to the child's statements that they may go along
with the child's stated preference. Judges must be alerted to the primary
manifestations of this disorder, especially the complete lack of ambivalence, the
dwelling on frivolous and inconsequential "indignities," the total removal from the
extended family of the hated parent, the absolute denial of any positive input on the
hated parent's part at any time in the child's life, and the definite statement that the
child wishes never to see the hated parent again throughout the remainder of his or
her life. It is hoped that judges will increasingly appreciate what is occurring when
they see such children and rectify the situation in accordance with the guidelines to
be presented. Under the circumstances of brainwashing, tutoring, poisoning, to
alienate the child from the non-custodial parent, the Custody should be shifted from
the custodial parent to the non-custodial parent who will ensure the child with love
and affection of both the parents.

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CHAPTER – 7

[Link] OF COUNSELORS

Court counselor is duty bound to counsel child to ensure access especially in

case of bad tutoring against the non custodial parent rather than being indifferent
or a mute spectator. Role of the counselor in family courts has to be proactive to
succeed in effecting healthy access to the non-custodial parent

a. Regular quarterly workshops has to be conducted to the counselors as well

as to the Judges of the family court by the reputed psychiatrists and
psychologists for continuous updation and orientation to handle the sensitive
issues.

b. Under Rule 27 of the Family Courts Rules 'counselor report' may be allowed
to be supplied to the litigant.

c. Under Rule 28 of the Family Courts (Maharashtra) Rules 1987 Parties

have a right to make submission and shall be entitled to make their
submissions on the report. However under rule 29 the counselor shall not be
called upon to give evidence and shall not be cross examined.

d. Counselor should be stopped from recommending their opinion to court in

regard to whom the custody, court has to grant. (amounting to exercise of
judicial powers by non judicial officer).

e. Cost of the psychological evaluation shall be borne by the litigant urging the
court seeking the evaluation of his or her spouse. Rules however provide that
the expenses in this regard shall be borne by the state.

f. It shall be the endeavor of the Counselor to ensure that a healthy bonding is

developed between the child and the non-custodial parent and for this the
counselor shall make every attempt to counsel and prevail upon the custodial
parent to provide healthy, substantial and significant access of the child to the
non-custodial parent.

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 CHART DETAILING MINIMUM VISITATION SCHEDULE

Sr. No. Visitation Age Occasion Day Time SECTION /

Schedule CHAPTER
162

NON-CUSTODIAL PARENT
163
Sr. No. Visitation Age Occasion Day Time SECTION /
Schedule CHAPTER
164
 165

PARENTING PLAN
 166

Parenting Plan

The numbers of divorce cases are rising, more and more couples have been
approaching family court for divorce, resulting in rise of bitter child custody and
access matters.

A serious need is therefore felt for the introduction of a Parenting Plan which will help
reduce the burden of courts and counselors to a great extent and will also help in
speedy disposal of court cases. Parenting Plan shall also bring out an ease between
the couples who are undergoing separation.

During the initial stage itself a copy of parenting plan can be provided to the couples
by the court counselors making them aware and help the parents mutually draw a
suitable parenting plan agreeable and acceptable to both the parents and which
would cover aspects related to the child custody and access in the best interest and
welfare of the child.

When children know that their parents have talked about what's best for them, and
know that a plan is written down, they are likely to feel cared for and safer. Children
can predict the shape of their lives and know that parents will keep the adult issues
between adults (the allegations and arguments between the couple entering the
parenting plan would be at minimum), Children will be able to manage the stresses
and fears of the separation much better and they may not be required to visit court
for access or for hearing that often.

The courts can direct the couple to draw a parenting plan (just like consent terns)
within a period of sixty (60) days and also pass appropriate orders based on the
parenting plan.

A Parenting Plan or Custody Agreement is required by the family court when

parents divorce or separate. A Parenting Plan allows parents to avoid future conflicts
in dealing with responsibilities relating to the children. Without specific agreements
around these responsibilities disputes can arise and litigation may be needed to
resolve these issues.

Divorce and separation are painful for everyone involved–particularly children. At

this challenging time children need support, love and contact with both parents.

Some certainty about the future is also very important for everyone. A written
parenting plan, worked out between parents, will help clarify the arrangements
needed by the parents to put in place to care for the children. It will help everyone
involved to know what is expected of them and it will be a valuable reference as time
passes and circumstances change.

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If the standard parenting plan by the court is agreed by parties before the court
hearing, it is called "stipulated". Court can approve the stipulated parenting plan
without court hearing.

A standard parenting plan by the Court puts the best interests of the child first. It is
drawn up in good will with a shared commitment to the children and their future firmly
in mind (just like consent terms).

In developed nations most of the states, there is a law required that court-ordered
parenting plans must set forth the minimum amount of parenting time and access a
noncustodial parent is entitled to have.

A parenting plan is a written agreement between parents covering practical issues of

parental responsibility approved by the Court.
Parenting Plan will detail practical decisions about children's care in such areas as:
l Parenting Time (physical custody)
l Major Decision Making (legal custody)
l Visitation / Access
l Transportation and Exchanges
l School Holidays, Vacations and Festivals
l Child Support / Maintenance
l A Dispute Resolution Process
l Schools Attended and Access to Records
l Physical and Mental Health Care
l Contact Information, Relocation
l Activities and School functions
l Overnights and Visitation
l Communications and Mutual Decision-Making
l Mediation
l Medical Insurance
l Contact with Relatives and Significant Others

Parents normally can make variations to the court standard parenting plan or
develop a different custom plan if the judge approves the changes.

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Parents later can modify the existing parenting plan by filing a new request with a
court when circumstances have changed.

A parenting plan can take any form, however it must be made free from any threat,
duress or coercion. It must be in writing and signed and dated by both parents.

If both parents agree on arrangements, Parents can submit parenting plan (just like
consent terms) to the Family Court and Court can pass an appropriate order based
on the parenting plan, giving it the same legal effect as an order made after a Court
hearing. Parenting Plan approved by Court would be one form of consent order
issued by the Court.

If parents cannot agree on arrangements for children they may need to have the
Family Court decide and issue a Parenting Order.

In deciding parenting arrangements the Court must always consider:

l The best interests of the child

l The extent to which both parents have complied with their obligations in
relation to the child, which may include those set out in a standard parenting
plan (As follow).

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Standard Parenting Plan

STATE COURT Place

OTHER

PERMANENT PARENTING PLAN ORDER PETITION No:

PROPOSED AGREED ORDERED BY THE COURT

DATE : DIVISION

PETITIONER (Name: First, Middle, Last) RESPONDENT (Name: First, Middle, Last)

ADDRESS : ADDRESS :

Mother Father Mother Father

The mother and father will behave with each other and each child so as to
provide a loving, stable, consistent and nurturing relationship with the child even
though they are separated / divorced. They will not speak badly of each other or the
members of the family of the other parent. They will encourage each child to
continue to love the other parent and be comfortable in both families.

This plan is a new plan.

modifies an existing Parenting Plan dated
modifies an existing Order dated of Family / High Court
Child's Name Date of Birth

Parenting Plan Note:

3 Tick that is applicable / Strike out----- what may not be applicable.

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I. RESIDENTIAL PARENTING SCHEDULE

A. RESIDENTIAL TIME WITH EACH PARENT

The Primary Residential Parent (Custodial parent ) is

Under the above schedule each parent will spend the following number of days with
the children:

Mother days Father days

B. DAY-TO-DAY SCHEDULE
The mother / father shall have responsibility for the care and access of the child or
children except at the following times when the other parent shall have responsibility
and access :
From to
Day and Time Day and Time

every week every other week other:

(Advisable two days weekday access 2 hours each during the week at locals of the child)

The other parent shall also have responsibility for the care and access of the child or
children at the additional parenting times specified below:

From to
Day and Time Day and Time

every week every other week other:

This parenting schedule begins or date of the Court's

Order. Day and Time

(Overnight weekend access Advisable every week Friday 6pm to Saturday 6pm Or Saturday 6pm to Sunday 6pm)

Or (every other weekend Friday 6pm to Sunday 6pm)

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C. HOLIDAY SCHEDULE AND OTHER SCHOOL FREE DAYS

Indicate if child or children will be with parent During FESTVALS EVERY year:

MOTHER (tick) Timings FATHER (tick)

Parsi New Year
Dussera
Diwali
26th Jan Republic Day
Holi
Mahashivratri
Janmasthami
Rakshabandhan Day
Mother's Day
Father's Day
15thAugust Independence Day
Bhaubeej
Ganpati
Navratri
Eid
Mother's Birthday
Father's Birthday
Child's Birthday
(Advisable to Choose any 9 days during the year)
Other School-Free Days
Other Significant Family
Occasions:
(Choose any 3 days during the year)
A weekend access / holiday shall begin at 6:00 p.m. on the night preceding the
holiday and end at 6:00 p.m. the night of the holiday, unless otherwise noted
above.

D. Long Festival Weekend Holidays

(If applicable Ganpati / Navratri / Ramzan / Diwali / Christmas)
The day to day schedule shall apply except as follows:
beginning

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E. Other agreement of the pa rents:

F. CHRISTMAS VACATION
The day-to-day schedule shall apply except as follows:
beginning
G. SUMMER VACATION
The day-to-day schedule shall apply except as follows:
beginning
Is written notice required? Yes No. If so, number of days.
Note: The access denied / deprived by the custodial parent shall be compensated
within days of receiving the notice / request from the non custodial
parent.
H. TRANSPORTATION ARRANGEMENTS
The place of meeting for the exchange of the child or children shall
be:
Payment of long distance transportation costs (if applicable):
mother father both equally.
Other arrangements:
A parent he or she must make reasonable transportation arrangements to
protect the child or children while in the care of that parent.
I. SUPERVISION OF PARENTING TIME (If applicable)
Check if applicable
Supervised parenting time shall apply during the day-to-day schedule as follows:
Place:
Person or organization supervising:
Responsibility for cost, if any: mother father both equally.
J. OTHER
The following special provisions apply :

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II. DECISION-MAKING

A. DAY-TO-DAY DECISIONS

Each parent shall make decisions regarding the day-to-day care of a child while
the child is residing with that parent, including any emergency decisions
affecting the health or safety of a child.

B. MAJOR DECISIONS

Major decisions regarding each child shall be made as follows:

Educational decisions mother father joint

Non-emergency health care mother father joint

Religious upbringing mother father joint

Ext racurricular activities mother father joint

mother father joint

NAME OF THE CHILD & SURNAME: The custodial parent shall not be entitled
to change the name or the surname of the child which has been given to the child
as per either a ceremony performed for the same or the name along with the
father's surname as it appears in the birth certificate without the court order or
written consent of the non-custodial parent.

REMOVAL OF CHILD FROM DAYCARE OR SCHOOL: The non-custodial

parent will be informed 60 days in advance incase if the child is being removed
from the day care or school.

MEDICATION, ILLNESS OR ACCIDENT: If the child becomes ill or is involved in

an accident, and treatment by a medical professional is obtained, the parent who
has the child at the time of the illness or accident shall notify the other parent as
soon as practicable but no later than three (3) hours after the incident or
diagnosis. ILLNESS OF THE CHILD SHALL NOT PREVENT VISITATION WITH
THE CHILD, UNLESS THE CHILD IS HOSPITALIZED. NONCUSTODIAL
PARENT CAN VISIT THE CHILD IN HOSPITAL.

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III. FINANCIAL SUPPORT / MAINTENANCE

A. CHILD SUPPORT
Father's gross monthly income is Rs.
Mother's gross monthly income is Rs.
1. The final child support order is as follows:
a. The mother father shall pay to the other parent as regular child
support the sum of Rs. monthly.
The Child Support / Maintenance / Worksheet / Order shall be attached to this Order
as an Exhibit.
2. Payments shall begin on the day of , 20 .
This support / maintenance shall be paid:
directly to the other parent.
to the Family Court
by direct deposit to the other parent at
Bank for deposit in account no.
other:
The parents acknowledge that court approval must be obtained before child support
can be reduced or modified.
CHILD SUPPORT / MAINTENANCE: Non-payment or late payment of child support
is NOT an acceptable reason to deny or interfere with visitation. Conversely, denial
of visitation is NOT justification for non-payment or late payment of child support.
Both parents agree that the Child support and child visitation are separate and
independent issues and are not to be manipulated by either parent to gain leverage
over the other parent with regard to visitation or child support. Child support shall
NOT stop during visitation periods, unless provided by court order.
B. HEALTH AND INSURANCE
Reasonable health insurance on the child or children will be:
maintained by the mother
maintained by the father

maintained by both

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IV. PRIMARY RESIDENTIAL PARENT (CUSTODIAN) FOR OTHER LEGAL

PURPOSES

The child or children are scheduled to reside the majority of the time with the
□ mother □ father. This parent is designated as the primary residential parent also
known as the custodian, SOLELY for purposes of any other applicable state laws. If
the parents are listed in Section II as joint decision-makers, then, for purposes of
obtaining health or other insurance, they shall be considered to be joint custodians.

THIS DESIGNATION DOES NOT AFFECT EITHER PARENT'S RIGHTS OR

RESPONSIBILITIES UNDER THIS PARENTING PLAN.

V. DISAGREEMENTS OR MODIFICATION OF PLAN OR NON COMPLIANCE

Should the parents disagree about this Parenting Plan or wish to modify it, or incase
of the non-compliance they must make a good faith effort to resolve the issue by the
process selected below before returning to Court.

Mediation by a neutral party chosen by the parents or the Court.

The Court DUE TO ORDER OF PROTECTION OR RESTRICTIONS.

It must be commenced by notifying the other parent and the Court by

written request registered mail.

other: ___________________.

In the dispute resolution process:

A. Preference shall be given to carrying out this Parenting Plan.

B. The parents shall use the process to resolve disputes relating to

implementation of the Plan.

C. A written record shall be prepared of any agreement reached, and it shall be

provided to each parent.

D. If the Court finds that a parent willfully failed to appear without good reason,
the Court, upon motion, may pass appropriate order.

Non-Compliance of the parenting plan may amount to breach of trust and

parents are required to approach court for appropriate action.

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VI. RIGHTS
RIGHTS OF CHILD
Both Parents recognize child's / children's right to:
Emotional and physical safety, stability and security
Feel loved by both of us and significant family members
Know and be cared for by both parents and significant family members
Develop independent and meaningful relationships with each parent.
RIGHTS OF PARENTS
Both parents are entitled to the following rights:
(1) The right to unimpeded telephone and web cam conversations with the child
at least twice a week at reasonable times and for reasonable durations;
(2) The right to send mail / gifts to the child which the other parent shall not open
or censor;
(3) The right to receive notice and relevant information as soon as practicable but
within three (3) hours of any event of hospitalization, major illness or death of
the child;
(4) The right to receive directly from the child's school any school records
customarily made available to parents. (The school may require a written
request which includes a current mailing address and upon payment of
reasonable costs of duplicating.) These include copies of the child's report
cards, attendance records, names of teachers, class schedules, and
standardized test scores;
(5) The right to receive copies of the child's medical health or other treatment
records directly from the physician or health care provider who provided
treatment or health care. (The keeper of the records may require a written
request which contains a current mailing address and the payment of
reasonable costs of duplication.) No person who receives the mailing address
of a parent as a result of this requirement shall provide such address to the
other parent or a third person;
(6) The right to be free of unwarranted derogatory remarks made about the
parent or his or her family by the other parent to the child or in the presence of
the child;
(7) The right to be given at least forty-eight (48) hours notice, whenever possible,
of all extra-curricular activities, and the opportunity to participate or observe
them. These include the following: school activities, athletic activities, and
other activities where parental participation or observation would be
appropriate;
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(8) The right to receive from the other parent, in the event the other parent leaves
the state with the minor child or children for more than two (2) days, an
itinerary including telephone numbers for use in the event of an emergency;
(9) The right to access and participation in education on the same basis that is
provided to all parents. This includes the right of access to the child for lunch
and other activities. However participation or access must be reasonable and
not interfere with day-to-day operations or with the child's educational
performance.
(10) Right to share the names and contact details of the friends of the child.
VII. NOTICE REGARDING PARENTAL RELOCATION
If a parent who is spending intervals of time with a child desires to relocate
outside the state or local jurisdiction from the other parent within the state, the
relocating parent shall send a notice to the other parent at the other parent's
last known address by registered or certified mail. the notice shall be mailed
not later than sixty (60) days prior to the move. The notice shall contain the
following:
(1) Statement of intent to move;
(2) Location of proposed new residence;
(3) Reasons for proposed relocation; and
(4) Statement that the other parent may file a petition in opposition to the
move within sixty (60) days on receipt of the notice.

Sharing Emergency numbers

Compiled a list of emergency numbers for children.
Father Mother

Home: Home:

Cell : Cell :

Email: Email:

Relatives Relatives

Name 1: Name 1:

Relation: Relation:

Home: Home:

Cell: Cell:

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Relatives Relatives

Name 2: Name 2:

Relation: Relation:

Home: Home:

Cell: Cell:

School Contact No. : School Contact No. :

Doctor’s Name & No. : Doctor’s Name & No. :

The Parents hereto have executed this Parenting Plan the day and year first
herein above written.

Sign Mother Sign Father

lawyer for Mother lawyer for Father

Address of Mother Address of Father

Phone Phone

APPROVED By Counselor : Name: Sign:

Note: The judge may sign below or, instead, sign a Final Decree or a separate
Order incorporating this plan as Exhibit .

COURT COSTS (If applicable)

Court costs, if any, as follows:

It is so ORDERED this the day of ,

Judge
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CHILD RIGHTS FOUNDATION

NGO
[Link]