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 the well-being of the child as paramount.
4. Two criticism of the welfare of the child – first, it is unpredictable and information sensitive. Second, the sole interest of the child ignores the 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. If everything else is 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

Joint Custody in the 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 the 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 an inability to cooperate.

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

Shared Parenting in Australia

In Australia, parenting orders post-divorce has a 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

Shared Parenting in the United Kingdom

In the UK, before awarding joint physical custody order, the welfare principle, no delay principle, and no order principle are followed. Courts in the UK consider the 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 the appointment of a guardian of a minor with respect to his self and property. The same law also has a 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 the father is the natural guardian is put to rest and best interests of the child even supersede 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 the 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 is 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 a 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 a disadvantage. One article on The Asian Age revealed the true nature of Indian feminism that denied shared parenting (removed now).

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 the ‘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 want to show biased and incorrect views of the 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 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 childcare 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 the matrimonial property is divided equally on divorce and the right to reside in the matrimonial home and a financial plan for the future security of caretaking spouse and her children. There is also mention of 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 a 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 a baby, the 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 –

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“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.”

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The above statement of IPC 317 clearly shows that the author Flavia is clearly misleading her readers as this article do have the 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.

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 ignore the father’s rights while forcing the father to pay maintenance and child support.

She also wanted 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 before 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 the father only as of the visiting uncle who can see the child for two hours every alternate week. Also, this right can go away if the father fails to meet the child for a certain period due to some reason.

The conclusion from the feminist arguments

It is thus clear from the above points that feminists are trying to misrepresent 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 on Shared Parenting

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. The welfare of anybody is a 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 the 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. The 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 the 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 to the judicial system.

Q. In which circumstances must share 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 system.

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 the 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 a strong ground of opposition else may be disqualified from parenting. Shared parenting may not be upheld if there is a huge discrepancy in the ability 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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