Delhi High Court had recently to explain to lawyers in a child custody/visitation case about their role and responsibility.
Read the news below (emphasis shown is mine):
Concerned by the adverse impact custody rows have on children who become mere pawns in the hands of their parents, the Delhi High Court has come up with suggestions not only for couples but also for lawyers, who treat such cases as legal battles to be fought like any other court case.
The judgment, delivered by Justice Rajiv Sahai Endlaw, involved a custody row between two administrative officers, one in the Indian Administrative Services and the other in the Indian Revenue Services, over their 12-year-old child. The visitation rights granted to the girl’s father was an issue of contention for the mother, while her father was aggrieved by the girl’s custody given to the mother. Both had approached the High Court seeking modification in the lower court order.
Justice Endlaw, however, realised that the parents had least regard towards the impact their differences were having on the child.
“This court can only express regret at such attitude. The parents, even if having mutual differences and incompatibility, have the duty to permit the least impact on the child. The child ought to be permitted to grow with the mutual affection of both parents; the parents ought not to instigate the child against each other and/or to spite the other, ought not to attempt to show the other down in the presence of or through reference before, the child,” he said.
Criticising the attitude of the parents, Justice Endlaw said they had forgotten that for the child’s development, “love, affection, companionship, guidance” of both parents is essential.
“They forget that their roles as spouses and as parents are entirely different. They allow the same to merge, which can only be to the detriment of the child,” he said.
Play positive role, lawyers told
The court also regretted the fact that the Bar was taking up guardianship cases just as any other fiercely contested adversarial litigation.
Calling upon lawyers to play a positive role, the High Court said, “Rather than advising their respective clients to take up accusatory and aggressive positions, they ought to apply a soothing balm to the aching hearts with which the parents reach them.”
“Instead of advising their clients that the child should not meet the other parent at all, they should advise them to allow the child to meet and interact with both parents freely and also explain that such an approach bears the imprimatur of the courts. If the members of the Bar play such a constructive role there will be no need to call the children to the courts,” it noted.
Passing its order, Justice Endlaw upheld the father’s visitation rights in the case and advised the couple that their focus should be to maintain a peaceful environment for the child in both homes to allow full cognitive development.
I think the best way to avoid problems for children in custody cases would be that if a spouse/lawyer is taking too aggressive a stance in denying visitation/custody to other spouse, then the lawyer should be fined by court for contempt. Of course we don’t mean to say we love the way contempt of court is used in India to shut off all opposing comments on judgments and judges. But it is lawyers who need to be reined in who give false assurances and instigate spouses into taking hard stances and engaging in a war against other spouse.