In the rapidly evolving world, societal structures are undergoing significant changes. With increasing rates of separation and divorce, the issue of child custody has become one of critical importance. While frameworks such as the Juvenile Justice Act, 2015 exist to empower child rights agencies, their lack of involvement in these cases has left a significant gap in the protection of children’s rights.

The courts are the traditional avenue for resolving child custody disputes, there is a growing concern that State agencies dealing with child rights has been established to protect children’s interests—are being largely overlooked in the custody matters. This neglect not only undermines the protection of children but also leads to an overburdened judicial system.

Ignorance by State and its Agencies in child custody matters

At present, the majority of child custody cases are referred directly to the courts. Although the courts are the Supreme authority and also made responsible for ensuring the welfare of the child but ignorance of agencies expertise is a failure of system. What’s even more troubling is that State Child Rights Agencies are expert in children matters but still the custody matter dealt at court.

Various National instruments exist that empower State bodies to intervene in matters of child rights, yet these agencies remain underutilized. For instance, the Juvenile Justice Act of 2015, which was created to align with international standards such as the UN Convention on the Rights of the Child (CRC), provides a legal framework for child protection. The Committees formed under this act are experts in child welfare issues and are well-equipped to address complex child custody matters. Despite this, most child custody disputes are still being funneled into the court system.

The Juvenile Justice Act, 2015: A Framework for Child Protection

The Juvenile Justice (Care and Protection of Children) Act, 2015 was introduced to ensure that children in vulnerable situations are protected and cared for. Not only does the Act address children who are in conflict with the law, but it also provides for the care of children in need of protection.

Key provisions, such as Section 2(14), define a “child in need of care and protection” as any child who is homeless, living on the streets, or residing with an unfit guardian. This means that even in custody matters, where there is doubt about the suitability of a guardian, or issue like ignorance or the cause which may affect the child welfare, the State Child Rights Agencies have a clear mandate to step in and ensure the child’s welfare.

Section 2(14)(iii) further expands on this by allowing intervention even when the child resides with a person who may and may not be the biological or legal guardian. The act is comprehensive and could be effectively used to handle complex custody issues without involving the courts in every instance. However, the lack of interest or proactive engagement by State bodies means that courts remain the primary venue for these disputes.

State Neglect and the Supreme Court’s Intervention

The failure of State Child Rights Agencies to actively involve themselves in child custody matters stems from a broader issue of State neglect. Despite the simplified and child-friendly processes available through these agencies, the absence of clear guidelines and a lack of will from the State to enforce the law have rendered them ineffective in this area.

Considering the state ignorance towards the child welfare, the Supreme Court intervened in 2015 to oversee the establishment and functioning of essential child protection bodies. These include Juvenile Justice Boards (JJBs), Child Welfare Committees (CWCs), Special Juvenile Police Units (SJPUs), and Child Care Institutions (CCIs). Furthermore, the Court mandated that the vacancies in critical organizations like the National Commission for Protection of Child Rights (NCPCR) be filled, ensuring that there is no hindrance in protecting children’s rights.

Additionally, the Supreme Court played a pivotal role in finalizing the format for social audits to ensure that these child protection bodies function as intended. This landmark decision aimed to revive the State’s responsibility towards child rights and ensure that these bodies are not just names on paper but active participants in securing the future of children.

The Road Ahead: Strengthening Child Rights Agencies in Custody Matters

For a holistic solution to child custody disputes, it is imperative to reimagine the role of State agencies. By leveraging the expertise of Child Welfare Committees, the child custody matters can be addressed more efficiently, with the best interests of the child as the priority. And then there should be provision to bring the matter before Court in case the CWCs fails in dealing the matter within the stipulated timelines.

The first step in this direction is the creation of clear guidelines that define the involvement of these agencies in child custody disputes. State Child Rights Bodies need to be proactive and step in early when child custody issues arise, particularly in cases where the child’s welfare is at risk. This not only relieves the burden on courts but also ensures that children are treated with the care and consideration they deserve.

Conclusion

It is time for State bodies to step up, issue guidelines, and take active responsibility in child custody disputes to ensure that the focus remains on the welfare of the child. The Supreme Court’s intervention has been a positive step, but sustained efforts from all stakeholders are needed to create a child-friendly legal system that truly upholds the rights of children.

Shared parenting promotes a collaborative approach, where both parents share responsibilities for the emotional, educational, and social development of their child. In India, while some progress has been made, court has started to recognize the value of shared parenting, it has not yet become the norm. Indian law still leans heavily toward sole custody, often leaving one parent with limited visitation rights and diminishing the role they play in the child’s daily life.

Need for legal reforms

There is a need for legal reforms that mandate clear guidelines around shared parenting. Such reforms would help reduce the custody battles by establishing joint parental responsibility as the default, rather than the exception. These guidelines should also include provisions for regular and meaningful contact between children and both parents, whether through physical meetings or, when circumstances prevent it, through virtual means like video calls.

The emotional and psychological well-being of children must be at the core of reform. Studies have shown that children benefit immensely from maintaining strong relationships with both parents. By implementing clear, enforceable rules that promote shared parenting, India can create a system that better supports the best interests of the child.

Establishing clear guidelines will ensure that the emotional and psychological needs of children are met.

Prioritizing the Best Interests of the Child with Shared Parenting

In all child custody disputes, the paramount consideration must be the best interests of the child. Shared parenting is not just about fairness between parents; it is about ensuring that the child receives the love, support, and guidance from both parents that they need to grow into emotionally healthy adults.

Shared parenting is not merely about ensuring fairness between the parents; it’s about guaranteeing that the child receives the love, support, and guidance from both parents to grow into a well-adjusted adult.

The COVID-19 pandemic underscored the importance of flexible custody arrangements, where maintaining the child’s relationship with both parents became a challenge due to lockdowns and restrictions. This exceptional situation highlighted the necessity of adapting child custody guidelines to address unforeseen crises, ensuring that children’s emotional needs are not compromised.

As we move forward, both the courts and society must recognize the importance of shared parenting and create systems that protect the rights of children to maintain strong relationships with both parents, even in the face of adversity.

In family law, child custody is one of the most sensitive and critical issues. In India, child custody laws aim to safeguard the child’s best interests, but recent developments suggest the need for a broader understanding of shared parenting as a more balanced and beneficial approach.

Sole Child Custody vs. Shared Parenting or Joint parenting

The Indian courts generally grants sole custody, wherein one parent mostly the mother is granted both legal and physical custody of the child. With the shared parenting concept, it ensures both parents play an active role in their child’s life, even after separation. While sole custody gives the custodial parent more control over the child’s upbringing, shared parenting ensures the child benefits from the love, support, and guidance of both parents.

Sole Custody: In sole custody arrangements, one parent is the custodial parent and has exclusive rights over the child’s upbringing. The non-custodial parent usually has limited visitation rights, which impact the child’s ability to form a meaningful relationship with that parent which lead to various issues with child.

Shared Parenting: This arrangement involves both parents sharing responsibility for the child’s upbringing. It means joint decision-making about the child’s education, health, and overall well-being, along with shared time spent with the child. Studies suggest that children fare better emotionally and socially when they maintain strong relationships with both parents, irrespective of the parents’ relationship.

Shared Parenting: A Psychological Necessity for Children

The psychological well-being of children is closely tied to the emotional bonds they maintain with both parents. Research has shown that children who grow up with strong parental bonds are more likely to be emotionally resilient and socially well-adjusted. A child’s emotional development, including their ability to regulate emotions, build secure attachments, and develop empathy, is often influenced by their relationships with both parents.

Renowned researchers Jack P. Shonkoff and Deborah A. Phillips, in their study “From Neurons to Neighborhoods: The Science of Early Childhood Development,” emphasized the importance of stable emotional connections in early childhood development. Shared parenting, in particular, helps children navigate their emotions, build trust, and develop self-confidence, enabling them to thrive in challenging environments.

Parental Alienation Syndrome: A Hidden Risk

An important aspect of custody disputes that is often overlooked is the Parental Alienation Syndrome (PAS). This occurs when a child is unable to make contact with non-custodial parent or in case of when one parent attempts to distance the child from the other parent, often resulting in long-term emotional harm to the child. In such cases, children may develop negative attitudes or feelings toward the alienated parent, which can severely affect their psychological development.

In a landmark case, the Supreme Court of India, in Vivek Singh vs. Romani Singh (2017), recognized the existence of PAS, acknowledging that it puts children in a damaging position of divided loyalty. The court emphasized the need for both parents to play an active role in their child’s life, regardless of their marital disputes.

Shared parenting: A Solution to PAS

Shared parenting offers a solution to PAS by ensuring that the child maintains a balanced relationship with both parents. Through this approach, children are less likely to be manipulated or pressured into choosing sides, which can help them develop healthier emotional resilience.

This year Father’s Day will be celebrated with a hope for the children who have been separated from any one of their parent and it is mostly fathers. Everyone understands how important a father’s love and care is for a child but there is less research over ‘father-child’ relationship while there has been extensive research done over ‘mother-child’ relationship.

The lack of research on the topic indicates lack of interest and funding that ultimately affects the father-child relationship in court proceedings. There is no doubt that parenting style has an impact on a child’s development. And when a child grows up in a fatherless environment, they will see the future the same way.

Voice for ‘Shared Parenting’

Although the supporters of the fathers movement have been running the movement for many years, but the hope has risen when Actor and Politician, MP Anubhav Mohanty raised the issue in the House. He is also getting support from various forums. Recently he got support of Author and Mindfulness speaker Raageshwari Loomba Swaroop, and both were also invited for a webinar on the occasion of ‘Global Day of Parents’, where he gave shared his views on ‘Parental Alienation’.

Father Become Month-End Dad or Visitor Dad

In general, it is observed that in parental dispute, the custody of a minor mostly goes to the mother, while father become ‘month-end dad’. The court generally grants the visitation rights to the father to meet the child for certain hours of a day of the month, and then the time increases in a span of year or so. And there are many examples that many fathers have not yet seen their child from their birth.

What I observe in such a circumstance where father has just became a ‘Month-end dad’, It has 2 major reason of it

• lack of research over father-child relationship
• Courts have always denied equal parenting opportunities to fathers as mothers usually file vague charges against fathers

Emotional Bond between Father-Child

The another reason that, lack of focus on developing the bond between father and child. Even in most of the custody cases neither the applicant raising such concern nor the court think in this way. Generally the court allows the father to meet his child in the court premises for an hour or for a certain duration, so how a limited duration of meeting within a limited area will develop emotional bond?

Why I am focused on emotional bond, is because, this helps a child to feel safe and secure which essentially helps the child to grow to their fullest and without any fear.