New Delhi : India, where the idea of shared parenting is still new to custody jurisprudence, is moving one step ahead on the lines of developed countries to give parental right to both the parents in case of separation.
The Law Commission of India has sought views on joint custody of children and shared parenting as it has begun a serious exercise to amend two existing legislations.
The two laws — the Guardians and Wards Act of 1890 and the Hindu Minority and Guardianship Act of 1956 — now decide the custody of children in divorce cases.
Quoting a recent judgment of a two-judge bench of the Karnataka High Court, the commission said both the parents are entitled to get custody “for the sustainable growth of the minor child”.
The high court said the joint custody, according to a consultation paper dated Nov 10 posted on the Law Commission website, observed the minor child was directed to be with the father from Jan 1 to June 30 and with the mother from July 1 to Dec 31 every year.
The parents were directed to share equally, the education and other expenditures of the child, it said.
“The six-monthly arrangement found in this example is much more workable than the weekly arrangement and is likely to cause less instability and inconvenience to the child,” said the paper on shared parenting.
It has been held by the Supreme Court that in custody disputes, the concern for best interest of the child supersedes even statutory provisions, said the paper.
Under this principle, the custody of minor children is mostly awarded to mothers. For instance, in a 2010 judgment, the Supreme Court altered the fortnightly visitation rights of the father and allowed the mother to take the minor son to Australia where she had got a job, based on this principle.
There are plenty of such examples from both the Supreme Court and the high courts, it said.
In the US, there are generally two forms of joint custody — joint legal custody and joint physical custody.
Joint legal custody “means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care….”
Joint physical custody “means that physical custody is shared by the parents in such a way as to assure the child of substantially equal time and contact with both parents”.
In the Netherlands, there has been an increasing trend towards shared parentage.
In 1996, the Dutch parliament passed a law mandating that joint legal custody be the presumed standard for post-divorce parenting.
Hailing the decision of the Commission to invite suggestions, president of Bangalore-based Child Rights Initiative for Shared Parenting (CRISP) Kumar V. Jahgirdar told IANS there is need for changes in the existing laws on child custody.
“The Supreme Court recently held that there should not be automatic presumption that mother alone is preferred to retain custody and such generalisation is not in the welfare of the child,” he said.
“We suggest that the family court judges have to be trained so that they can decide on the importance of shared parenting as a necessary option when both the parents are in position to take care and live in the same city,” Jahgirdar added.
Family counsellor Savio Periara said studies showed a sharp drop in divorce rates in those countries where the shared parenting has been made mandatory.
CRISP says more than 25,000 divorce cases are pending in family courts in Bangalore alone.