In custody matters, child is paramount

Child custody matters require multidisciplinary human approach than an adversarial approach. A child is not a property to claim absolute ownership over or to be divided between the disputing spouses. All questions pertaining to “what when where how and why” related to child custody issues are now being decided by the courts under the umbrella of paramount interest of the child which is totally relative and contextual and may differ from case to case.

The collective role played by the disputing parties, their counsels, some third parties, mediators and the judge/s determine the custody factor, wherein the child’s participatory role remains negligible. At times, inputs from interaction with the child are also considered. Decision given by the court may not be detrimental to the interest of the child but is it completely in the paramount interest of the child is the question.

In child custody matters, parental alienation syndrome, fight between the spouses through the child, using the child as an ammunition to settle the score between the disputing parties are all witnessed day in and out. Visitation orders are frequently disobeyed.

Children are often brought to court rooms, mediation and conciliation centres by compulsion, which may be a traumatic experience for them. They hesitate to answer, look at one of the parents for approval, and there is a noticed sense of fear. They are in a fix whether to speak the truth or lie. They are not interested in disappointing either of the parents.

A short interaction with the child and the gestures, body language, actions, resentments, cries, hues, opposition of the child are interpreted according to one’s own wisdom. A child’s drawing, reflecting herself, her mother and the dog in her home in one bottom-most corner and placing the father in the right hand top corner (almost in the sky) on the same paper may be interpreted differently.

The mother may say, “The child does not want the father, and wants the father to be far away”. The father may say, “The child’s agony of missing the father is reflected.” But who will interpret it to mean that ‘the child wants to be with the both of them’? Who is there in the system to speak for the child and what is deeply troubling her?

In child custody matters, whose right is it that’s being decided? Is it the mother’s right? Father’s right? Or that of the child? Do parents have a right over their child? Are we forgetting that it is the child’s right to have access to and be with both the parents? Are we ignoring the fact that for a child, the idea of a family comprises the child, its father and the mother?

No child looks at her parents as a spouse of her mother or father. For a child, they are just ‘my mother and my father’. It is this inclusive definition conceived, nourished and cherished by the child that needs to be recognised and protected by all adults as long as the child is a minor.

Relationships cannot be compelled. Disputing spouses cannot be asked to live pretending to be in a marriage which may be toxic for all, including the child. But they can be wonderful parents if they want to be. Unfortunately, there is no law for morality.

The Supreme Court in the case of Abdul Jaleel Vs Shahida (AIR 2003 SC 2525), referring to the object of the Family Courts Act, indicated an approach for the family court that was radically different from that adopted in ordinary civil proceedings.

Section 21 of the Family Courts Act provides for the high courts to make rules for carrying out the purposes of the Act. A quick action is expected from family courts to ensure that the child does not lose its precious childhood passing through unimaginable litigating years.

Therefore, it is about time that the respective high courts immediately step forward to frame rules pertaining to joint parenting. Within 15 days from the date of serving of notice, the family court may be directed to consider the inputs given by the parents and give a chart of workable solutions regarding joint parenting to be adhered to by them during the period of litigation.

Both the parents may be directed to periodically approach a well-trained counsellor to get educated about the ill-effects of parental alienation on the psychology of the child.

Services of mediators may be opted to prepare a chart of workable solutions. Judges, mediators, conciliators must also be directed to talk to children only through well-trained certified counsellors.

Children are in crisis. And it is time for all of us to act together.

(The writer is a Senior Advocate practicing in the Karnataka High Court and a senior mediator and master trainer from Bangalore Mediation Centre)