Mumbai family court to explore possibility of “shared parenting” in child custody cases

Citing a Bombay high court (HC) judgement from January 2016, principal judge of family court P L Palsingankar issued a circular on March 5 calling upon all stakeholders

Mumbai: Seven years after the Law Commission of India recommended awarding joint custody of children in divorce cases, the family court in Bandra has decided to explore the possibility of “shared parenting” in every case involving disputes over custody of children.

In the 2016 judgement, the HC observed that joint parenting should be the rule and single parenting an exception. (Getty Images)

Citing a Bombay high court (HC) judgement from January 2016, principal judge of family court P L Palsingankar issued a circular on March 5 calling upon all stakeholders — lawyers representing estranged spouses, judges of the family court and marriage counsellors — to explore the possibility of amicable arrangement for shared parenting.

“Considering the above judgment of the Hon’ble Bombay High Court and considering the provisions contained in Section 9 of the Family Courts Act, 1984, it is the duty of all stake holders of Family Court to see that there is an amicable settlement of ‘lis’ (litigation) pertaining to the issue of custody and access for the benefit of the child,” the circular read.

In the 2016 judgement, the HC observed that joint parenting should be the rule and single parenting an exception.

“When both parents are available, their association with the child cannot be artificially denied only due to fights, hatred and vindictive approach of the parents,” the judgment stated, and added that the family court should invite parties to matrimonial litigations to consider shared parenting plan.

In view of the ruling, principal judge Palsingankar said it was necessary to introduce a “Parenting Plan” to the parties and for their counsels to explore the possibility of an amicable arrangement in respect of custody and access to children in cases where the parents are divorced.

He directed the family court registry to make available a draft parenting plan on the family court website, so that willing spouses can download the form and edit it suitably and submit it for consideration of the family court.

The 12-page draft or standard parenting plan makes provisions for residential parenting schedule, which includes sharing custody of the child (or children), access and arrangements for schooling, extra-curricular activities, and other decision-making processes, including those pertaining to day-to-day affairs as well as major decisions that affect the career progression of the child, financial support and maintenance. The primary residential parent could be either of the parents with whom the child is expected to a spend majority of time.

The draft plan also makes provisions for modifications in the plan and outlines the rights of the child and that of the parents.

Family court lawyer and advocate Swaty Malik welcomed the move. “It’s a very positive step as far as the child is concerned,” she said, adding that the Supreme Court has come out strongly against the practice of alienation of the non-custodial parent.

Malik cited a recent case from Goa in which the apex court recommended joint custody, but added that the concept is still developing in India.

Advocate Sashi Nair, president of the Family Court Bar Association, said joint custody is a key concept for mental health of the child, as in many cases, the child becomes a tool in the matrimonial dispute.

“The plan (draft plan) was drawn after borrowing ideas from various other countries, where the concept has progressed. But, in India the plan may face problem of actual execution and therefore each case will be required to be dealt with on its own facts and circumstances. The model plan is just a base for the same,” Nair said.

Shared Parenting in India

Though several developed and developing nations have adopted the concept of shared parenting, in India, the Law Commission for the first time initiated a dialogue on the concept in November 2014 by issuing a consultation paper on Adopting a Shared Parenting System in India, which surveyed prevailing systems in several countries where there is presumption of joint custody of children in case of parent’s separation and unlike India sole custody is granted only in exceptional cases.

In its 257th report submitted to the then law minister on May 22, 2015, the commission recommended reforms in guardianship and custody laws in India so as to introduce the concept of joint custody or shared parenting.

“The worst affected in proceedings of divorce and family breakdowns are the children,” its report said. “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.”

A handful of high courts like the Bombay HC and Madhya Pradesh HC have passed orders approving guidelines for shared parenting.