Here’s all you need to know about Shared parenting arguments

The Law Commission recommendation for Shared Parenting

  1. Shared Parenting needed due to changing familial role of men
  2. Psychological studies revealing that the involvement of both parents in well being of the child raring is preferable than sole custody arrangements
  3. This is in the ‘Best interest of the child’ and family courts to consider well-being of the child as paramount.
  4. Two criticism to welfare of the child – first, it is unpredictable and information sensitive. Second, sole interest of the child ignores feeling and intentions of the child. Parents also play significant roles in their families and their perspectives also need to be taken into consideration.
  5. Everything else being similar, a child from a shared parenting background is likely to fare better in regard to family relationships and self-understanding. They have lower incidents of misbehaviour and better exam scores, higher grades etc.

Joint Custody in different countries

USA

  1. Joint legal custody – both parents have equal rights and responsibilities for major decisions concerning the child
  2. Joint physical custody – Both parents share the physical custody that child spends equal time with both parents.

Such provisions are however prohibited when parents don’t act in matured civilized fashion or antagonistic to each other and demonstrate inability to cooperate.

In Canada however the ability and willingness of the parent to decisions is also considered.

Australia

In Australia, parenting orders post divorce has presumption of shared equal responsibility and best interest of the child is always upheld.

To grant joint physical custody, Australian courts consider a lot of pre-conditions such as, geographical proximity, compatible parenting, co-operation, ability to supervise the child etc. Before applying for the joint parentage of the child the parents need to prove other

United Kingdom

In UK, before awarding joint physical custody order, welfare principle, no delay principle and no order principle are followed. Courts in UK consider child’s welfare as the top priority and try to deliver justice as quickly as possible and always in the best interest of the child. The no-delay principle considers any delay to be against the child’s welfare and no-order considers if the order is not in favour of the child then no-order is better.

Other countries like South Africa, Netherlands, Singapore, Thailand etc all have shared parenting norms and give the interests of the child utmost importance while deciding custody matters.

Indian custody laws

In India the Guardians and Wards Act, 1890 deals with appointment of a guardian of a minor with respect to his self and property. The same law also has provision to take into consideration the child’s view if one is old enough to make an informed decision.

Hindu Minority and Guardianship Act, 1956 enumerates the classes of natural guardians of a Hindu minor. But these laws are vested with the idea that guardianship has to be given to one parent and never considered that the best interest can also be derived from the custody of a joint parentage.

Developments of Shared Parentage in India

In India, the principle that father is the natural guardian is put to rest and best interests of the child even supersedes statutory provisions. In this principle, custody is mainly awarded to mothers and the father gets visitation rights. But there are cases where the court has altered the previous decision of father’s visitation rights and allowed the mother to take the child to Australia where she had relocated.

Also the custody rights to the father are denied by many High Courts even when they had greater economic prosperity. Ina recent judgement (Kumar V Jahgirdhar vs Chethana Ramatheertha 4230-31 / 2003) SC has reversed the observation that the mother be always the natural guardian and the custody will be given to her always.

This shared parenting judgement was delivered in the case of KM Vinaya v B Srinivas,

  • 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 is 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.

Opposition to shared parenting by feminists

Feminists however, have termed this arrangement as disadvantage.This article on The Asian Age newspaper reveals the true nature of Indian feminism –

http://www.asianage.com/columnists/shared-disadvantage-425

If we see the main objection in the article we will see the whole objection was based on flimsy feminist argument. Flavia Agnes who is a lawyer herself says until about ‘60s a mother’s role as primary caretaker to children was recognized and she was granted custody of children. But she says that after ‘60s this situation was changed. While mothers were deprived of child custody on several grounds but a father could not be dislodged of custody rights on similar cruel grounds. But this is a clear lie especially when the law commission report clearly states grounds when a father can be deprived of custody rights. Also it states the statistics that it is the mother who gets the custody in normal cases and father ONLY gets visitation rights. This clearly states that feminists are big liars who only wants to show biased and incorrect views of situation. This is a dangerous proposition especially when our Indian society is concerned. The basic premise of “father is the natural guardian” is already refuted in practice.

The article also mentioned about the United Nations Convention on the Rights of the Child (UNCRC), and showed how mothers’ rights were gradually established through hard work.

This article portrayed that the shared parenting provision is being made copying western laws, where men take more familial or child care roles and where different psychological studies have shown that involvement of both parents is better compared to single parentage.

This article said stated with examples from developed countries where matrimonial property is divided equally on divorce and the right to reside in matrimonial home and a financial plan for the future security of caretaking spouse and her children. There is also mention about different support system existing for single mothers in these countries.

Per Flavia, in India divorce leads to extreme financial hardship for the women as the husband leaves his lucrative jobs and divorce / maintenance decrees are only reduced to paper.  She says that the law absolves the father of his responsibility of supporting his children beyond 18 years of age as she says “the single mother is left, literally, holding the baby”. So she termed an 18 year old man as baby, but imagine when a 16 year old boy was accused of rape, the same feminists go all out demanding his death penalty and treating minors as adults. But when it comes to taking free benefits in the name of maintenance the same feminist can change colour and term an 18 year old boy as baby, height of hypocrisy indeed.

She complained that under IPC 317, a deserting father can’t be punished as that frequently punishes only the mother.

Now let’s see article 317 of IPC from this Indiakanoon link


“Exposure and abandonment of child under twelve years, by parent or person having care of it.—Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Explanation.—This section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child dies in consequence of the exposure.”


The above statement of IPC 317 clearly shows that the author Flavia is clearly misleading her readers as this article do have provision of not only taking the child away from a deserting father but also this law has provision for punishing the same father. We get worried when this kind of statement comes from an advocate, we understand that she is not qualified enough to state herself as an advocate.

Divorce

In her argument she stated that when any parent is antagonistic against the other parent the joint custody can’t be ordered and to refute shared parentage in India she said that most of our custody battles are bitter and antagonistic. However, she had conveniently ignored the fact that the custody battle is antagonistic (if at all) because most of the time the custody goes to the mother and fathers are not given custody of their children easily. Indian courts carefully ignores father’s rights while forcing the father to pay maintenance and child support.

She also wanted an unambiguous financial support for divorcing women and their children to bring in emotional stability to women. This demand of hers shows that feminists in India are only bothered about money for themselves and want to earn money using their children. In case of joint custody the father will anyway be required to take 50% of child care and hence there is no question of financial hardship arising out of a Shared Parenting norm.

The mention of non-adversarial or mutual consent divorce where a joint parentage and financial settlement is ensured prior the divorce shows her poor or skewed representation of facts. Even today in most of the mutual divorces shared parenting is not followed. The shared parenting norms existing today allows father only as the visiting uncle who can see the child for two hour every alternate week. Also this right can go away if the father fails to meet the child for certain period due to some reason.

Conclusion from the feminist arguments

It is thus clear from the above points that feminists are trying to mis-represent the facts concerning parentage. They are creating unnecessary skewed facts and confusing the readers. It is shocking to note that a media like Asian Age is also promoting one sided skewed views and that shows once again how much our media standards has come down.

Suggestions to the Law Commission

Here are the point based suggestions to the law commission –

Q. 79 MFA No. 1729/ 2011, Karnataka High Court, Judgment dated 13 September, 2013 Whether shared parenting should be an option and/or a preference for the courts?

Ans. Shared parenting needs to be a preference for the courts. When the parents are living in far off destinations shared parenting can be made to work by allowing the child to visit the other parent during long vacations.

In cases where one parent is violent or abusive towards the child (not with another spouse) the shared parenting need not be followed.

Q. Should such a presumption be dependent on the age or gender of the child?

Ans. This can be a case when the child is below one year of age. Because this is the time when the mother is needed the most. Also while deciding the custody the behaviour of the parents towards the child, their well being and other such parameters need to be checked before deciding on custody rights. E.g. when a parent may be extremely cruel to the male child she should not be given access to the male child at all. This cruelty however needs to be proven before a court.

Q. Should such shared parentage arrangements be shared physical custody or shared legal custody or some other derivative thereof?

Ans. Both the norms in certain conditions can be detrimental for the kid. Hence a well thought out decision by a competent court is best for the well being of the child.

Q. Should and how can the “best interest of the child”/”welfare of the child” standard be balanced against other factors (i.e. the wishes of the parents, other children, the wishes of the child)?

Ans. Welfare of anybody is very relative decision. Both parents can think of different levels of welfare for the child and both can be best for him. However, a court (competent third party mediator) can think of another path as the best. Since the perspective of the person can change situations. Wishes of the child can be considered if one is at least 16 years (or any age pre-decided) of age, otherwise a child is not informed enough to decide for one’s well-being.

Q. How and should the definition of guardian be expanded?

Ans. A guardian should be decided based on following capabilities of a parent –

  1. Earning potential
  2. Love and care for the child
  3. Vision and achievements in life
  4. Adaptable nature
  5. Position of power / influence

Q. How to create and implement mediation or conciliation institutions to be necessarily involved in the process of grant of guardianship and shared parentage.

Ans. Mediation centres need to have representatives from men’s groups as well as women’s groups. A mandate based on grant of shared parenting to maximum parents is desired even though it should not be binding on them. These bodies necessarily need to have professional and trained counsellors (psychiatrists).

Q. Whether child welfare officers may act as information / service providers?

Ans. No. There will be a conflict of interest arising out of this.

Q. Whether there should be physical or joint custody or should it be left to the discretion of the judge?

Ans. We can only set generic guidelines, but having rigid guidelines for any parental norm may be detrimental for the judicial system.

Q. In which circumstances must shared parentage arrangements be withheld? Eg: domestic violence, insolvency, mental illness

Ans. Domestic Violence, Cruelty to the child, Unsound mind decided after a trial by a competent court and after consulting experts. Otherwise any sane person also can be proved insane in a legal sytem.

Q. Should and how does gender inequality (e.g. financial) affect establishing a shared parentage preference or option? E.G. the use of children as bargaining chips to secure maintenance.

Ans. Financial earning disparity needs to be considered while deciding parenting norms. For example one parent may not be qualified enough to earn as much as the other parent but one may show extreme care and affection towards the child and that will help the child in long run. So this consideration need not be absolute while considering the parentage norms.

Q. What should be the role of the court in matters of joint custody? Should the court be proactive in such matters i.e. a constant supervisor of such arrangements?

Ans. Yes. Courts should be proactive about it and any parent opposing the same should have strong ground of opposition else may be disqualified from parenting. Shared parenting may not be upheld if there is huge discrepancy in abilities of the parents concerned. These abilities may be financial ability, educational ability, social ability, intellectual ability etc. In such cases single parenting with visitation rights for the other parent will be better. In any case a competent court is the right to decide.

Q. What should be the nature or limit of discretion that judges can use while awarding joint custody decisions?

Ans. It is always better if judges take help of professional mediators (counsellors who are professional psychiatrists) and educators to make such decisions. We need to have such professional bodies attached to our family courts.

***

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21 comments

  1. Hindu Minority and Guardianship Act, 1956 enumerates the classes of natural guardians of a Hindu minor. But these laws are vested with the idea that guardianship has to be given to one parent and never considered that the best interest can also be derived from the custody of a joint parentage.

    Joint custody should be given to both. Other countries have such laws but India is still using the decades old and not allowing father and the kids to share the feelings and affection, but giving the custody to mother by default.

    Paying expenses is the duty of father, and not even expecting to spend some time with kids is the law of country.

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  2. shared parenting is good for any society, since countries like sweden and denmark have witnessed a lower rate of divorce after making shared parenting mandatory, so india should follow suit since it is but common sense that the child needs both parents and not be punished for parental conflicts,

    iam for shared parenting
    kumar jahgirdar
    president of crisp ngo
    children’s rights initiative for shared parenting

    Like

  3. Be careful about placing too much trust in mediators/child professionals etc. Other countries like UK, US have these ‘specialists’ too, but it has become almost a scam there in name of foster homes and arbitrary decision making by the CPS. No guesses that it’s the fathers who lose out access from their children in these cases.

    As a rule, very little meddling of government into families, almost always any govt welfare of either family or children will serve the feminist causes. Men of course will be asked to pay child support and man up, and go to jail if they can’t legitimately take up a job due to sickness or whatever else.

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  4. > In any case a competent court is the right to decide.

    Lol. The courts don’t want to decide at all. Check any custody cases pending in courts. They will not decide on anything except stamp on MCD (mutual consent divorces)!

    Discretion to judges means run around courts for 5 years for a simple child access order.

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  5. There is no guideline for. Child welfare. And girls use childs as a soft target against men. So proper guidline with equal asses is demand of today.

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  6. पिता को भी मिलना चाहिये बच्चे को साथ रखने का अधिकार, पिता को के बल ATM की तरह केवल उपयोग न हो,

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  7. Shared parenting is just not a good option but its a need of the hour. Times have changed and so are the roles of couple raising the child and hence it calls for a change in our judicial system to match up with that. I am all in and support Shared parenting!

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  8. Child custody should be divided equally with responsibilities and physical access in India, which is not in current laws and thus in Judgements. Childrens need both parents for their better growth, but in most of the cases wife does not allows father’s access to child, which is not in India.

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  9. The welfare of a child is not negotiable. Sadly today kids are being kept away from their fathers in the name of feminism. We need to learn to be humans first.Divorce is between a husband and wife not between mothers and fathers.I strongly endorse shared parenting for a better society and a better tomorrow

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  10. Most of the lawmakers and feminists were lucky enough to be brought up by both parents. Why are they so bent on not giving today’s kids the same !!

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  11. Hi ,
    I have personally seen people in US n Europe who on growing up have become lowlifes or become mental patient …. In fact this was so much around me that I decided to come back to india for good and make sure it do not happen with my girl child who is 7.
    It is really difficult for me to imagine what possible good a woman can get by keep the child away from father …. ( mind it I didn’t say father from child and there is a difference … Big difference !!)

    Well I guess they fear that if child will meet father on regular basis … He or She will obviously like the company n compare it with wat mother can provide … I it’s not just money … It’s overall freedom n security . Indian women fear this ….hence the resistance . What they don’t understand that their one selfish act of today will creat a generation of screwups in this country.

    Indian women need to grow up n evolve a though process that is most beneficial for the child …

    I also want to add one thing here that women in india know that our law blindly favors them hence they play with it to give men hard time ….in divorce case, child custody case n last but not the least the very fresh Rohtak sister case …

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  12. Men and women together only can create an offspring…
    Nature has made it this way only…
    but when it comes to parenting y our current system thinks its only women who can do the parenting.. love affection care guidance protection of father is equally important fr the normal growth of child many scientific studies also confirm the same…
    Even I cannot think my life complete without my mother and father both..
    Serious reforms are needed in shared parenting system in India for yhe bettrement of our future.

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  13. Shared Parenting must be made mandatory for couples in India who are divorced/ separated. The child must be equally accessible by both parents, and both the parents should be made equally responsible for the financial welfare of the child. Where one of the parent is restricting allowing access of the child to the other parent, courts must intervene immediately and the defaulting parents must be book under a criminal section, and prompt action must be taken accordingly.

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  14. Common-sense is required, and Law MUST be changed, it can’t be in favour of mother always. An Irresponsible father would automatically will not come forward, and if FATHER is really bad, Child eventually will know that who is better amongs his/her parent, father or mother. Child requires love, and affection of both, mother, and EQUALLY that of FATHER. When you expect only maintenance in the name of child, from FATHER, why FATHER should be deprived of his children custody. Only genuine FATHER would ask for Custody of his children, then WHY he should be denied, for noble cause. What they want to prove. CHANGE THE LAW, those who (FATHER) suffer silently, dont make fun of them, by putting filthy arguments.

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  15. Wonderfully researched write up. What is worth pointing out that India has always been a quick copy cat copying laws from the developed countries, without understanding the difference in social, political, economic and gender rights fabric of the countries. The psyche running in India is that every male being a potential perpetrator of crime against women. This thought is even over shadowing the outcome of child custody cases.

    I believe that any child is a joint product of the union of a man and a women. So, any kind of privilege in awarding custody of children to women (as practiced in India) is deplorable. Infact, there should be no cases of custody. An acceptable formula should be in place which sud be used as soon as any issue over parenting rights of children arises.

    Like

  16. Wonderfully researched write up. What is worth pointing out that India has always been a quick copy cat copying laws from the developed countries, without understanding the difference in social, political, economic and gender rights fabric of the countries. The psyche running in India is that every male being a potential perpetrator of crime against women. This thought is even over shadowing the outcome of child custody cases.

    I believe that any child is a joint product of the union of a man and a women. So, any kind of privilege in awarding custody of children to women (as practiced in India) is deplorable. Infact, there should be no cases of custody. An acceptable formula should be in place which sud be used as soon as any issue over parenting rights of children arises.
    

    Like

  17. In the initial stages of a babies life ,it needs care and milk.As mother’s are better care givers for children,atleast for the initial few years of a babies life,they should be allowed to stay at their mother.Also,a mother can’t leave and stay away from her child ,especially if the child is little.
    So atleast for the first seven years of a child’s life ,it is better if he/she stays at her mother.Later on,the decision should be left with,the child to stay with mother or father.In case shared parenting is allowed ,then also it is better to implement it after seven years.

    Like

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