Points for shared parenting, child access, and custody to fathers

Since the law commission has recently asked for suggestions and comments on a shared parenting consultation paper, I am listing down some points based on my understanding of law, it’s practice, and actual scenario for fathers in Indian family courts.  You can use these points if you want to give feedback to law commission, or suggest your own based on your own thoughts and experience.  NGOs can also base their response based on following points.

Note for those short on time: copy and paste the 12 points and responses given below and email to Law Commission at lci-dla@nic.in before 5th Dec 2014 (technically speaking last date is 8th Dec being 4 weeks from Nov 10th but better safe than sorry)

Note: the main source used is data from the book: The Garbage Generation – By Daniel Amneus.  Links to the html pages of book along with excerpts are given wherever used.

First of all, I think the words “shared parentage” used in title of consultation paper are wrong.  Parentage means “descent from parents; lineage”.  I don’t think the issue being discussed is about who are the child’s parents; but about how the parenting responsibilities and rights of guardianship will be divided among the biological parents who happen to go through separation/divorce.  So the right words should be shared parenting.  Whoever has drafted the consultation paper missed this basic point.  Moving on…

Full details of email to send to, subject, body of email, and the 12 points are below

Email to: lci-dla@nic.in

Subject: Suggestions/comments on Shared Parenting in India

Email Body: copy paste from below till end of post, make sure fill your name, address, mobile

To

Member Secretary, Law Commission of India, Hindustan Times House, 14th Floor, Kasturba Gandhi Marg, New Delhi-110 001

Dear Sir/Madam,

Kindly find my submission on the 12 points in Law Commission’s Consultation Paper on Adopting a Shared Parentage System in India dated Nov 10, 2014 asking for suggestions/comments on shared parenting in India.

Thank you,

Sincerely,

<Your name>

<Give your full address here>

…

Mobile: < Your mobile>

1. Whether shared parenting should be an option and/or a preference for the courts?

In general, the experience in family courts in India is that too much discretion is not good.  If shared parenting is made an option, then it will be susceptible to numerous and continuous requests for modification of interim orders, and other such tactics used by parties to a marital dispute.  What is required is guidelines and a framework to decide on a shared parenting plan for a couple going through separation/divorce.   The guidelines should also have a maximum 1 month to arrive at a custody/visitation order.  This time limit should be adhered to and judges made accountable for delaying beyond the 1 month time limit, judges need to give written reasons in order sheet as to why the time limit was exceeded.  This is simply because any delay and separation of child from any parent is not good for the child and child cannot be punished for decision of parents to separate or divorce.

Shared parenting should be a preference, not an option.  It can be a rebuttable presumption though.  However if it is proven that the allegation of domestic violence or child abuse made was false, the parent making the false allegation should get much reduced responsibilities in parenting.

2. Should such a presumption be dependent on the age or gender of the child?

A presumption in favour of shared parenting should not be dependent on gender of the child.  There are enough studies which show that lack of a father’s role and involvement in child’s life (most studies reflected the predominance of child custody with mothers), affects them negatively whether the child is boy or girl.  There is a bias in Indian courts that girls nearing age of puberty should not be given custody to fathers, but there is no data to prove benefits of such imaginative ideas.  On the contrary, there are plenty of studies which show that girls growing up in fatherless homes have much higher teenage pregnancy rates.

E.g. from (The Garbage Generation, Annex to Chapter I)

http://www.fisheaters.com/gbannex.html

William Marsiglio, “Adolescent Fathers in the United States: Their Initial Living Arrangements, Marital Experience and Educational Outcomes,” Family Planning Perspectives, 19, November/December, 1987, 240-51; epitomized in The Family in America: New Research, May, 1988: “Researchers have known for some time that girls raised in a female-headed household are much more likely to become unwed teen mothers than are girls raised in two- parent families.

Children of all ages need their parents’ time and resources, and enjoy love and affection from both parents.   So simply because two parents want to separate or divorce, the presumption of shared custody itself cannot be invalidated based on age of child.   However, the shared parenting plan can have guidelines to keep in mind the age of child and needs of child at that age to be with mother or father.

3. Should such shared parentage arrangements be shared physical custody or shared legal custody or some other derivative thereof?

Parenting arrangement should involve sharing of both legal and physical custody sharing.  When two parents are living happily together, that provides the best environment for the child giving benefit to child of affection and resources from both the parents.  This involves both physical proximity, as well as joint decision making for the child like what school the child to go to, which doctor to visit, etc.

In the unfortunate event of parents falling out, the child should still get the next best option where the important decision and responsibilities about child’s life are still shared between parents, and the routine day to day decisions can be taken by the parent in whose custody the child happens to be at the time. The court orders and parenting arrangement should discourage and penalize parents who quibble or create hurdles based on minor day to day issues.

The reason for sharing of both physical and legal custody are simple.   A parent who  does not meet or involve himself/herself in child’s life cannot make right decisions as to child’s nutrition, child’s educational needs, his/her inclinations, health/medical needs, and so on.  So giving only legal or only physical custody to a parent is against basic workability and against need for child’s relationship with both parents.

There is also a danger that if only legal or physical custody is given to a parent, a parent could absolve himself/herself from parental responsibilities, e.g. by paying more than fair share of expenses of child to the other parent; and such arrangements even if consensual between the two parents are highly detrimental to child’s needs and child’s welfare.

Keeping such basic issues as open-ended in the law/statute itself will only benefit the DV and divorce industry, who may misinform the parents about benefits of litigation, which will lead to prolonged litigations and repeated interim applications in courts.

4. Should and how can the “best interest of the child”/”welfare of the child” standard be balanced against other factors (i.e. the wishes of the parents, other children, the wishes of the child)

Firstly, the point about wishes of preferences of the child should be taken in right perspective.  It has been seen in family courts that after having not made a decision for several years and the child having lost touch with father or even having got his/her mind poisoned, the judges ask the child about his preference of parent.  A child cannot be deemed to make a reasoned or right preference when he has been deprived of all access and affection from a parent, and in many cases his/her mind poisoned against that parent (mostly fathers).

To give another perspective, a child may express a wish not to go to school, or eat vegetables; but such wishes are of not much importance in decision making by child’s parents if they really care about well-being and growth of the child.

Wishes of other siblings of the child should be balanced against needs of the child as per the shared parenting plan.

Wishes of the parents should be given much lesser importance than needs of the child, since it is a reasonable and well-accepted norm in families and society that children have needs and expectations from parents to be fulfilled for their growth and well-being, and parents are obliged to fulfil that responsibility having given birth to the children.

If at all a distinction is to be made between wishes of parents, the wish of parent who initiates divorce without being able to prove any ground of cruelty can be given less preference than the parent who did not initiate divorce.  However if the parent who initiates divorce is able to prove cruelty, then his/her wishes can be given more importance.

5. How and should the definition of guardian be expanded?

In current practice in family courts and custody orders, the underlying assumption is that if the child has a roof over his/her head, goes to school, and gets fed; then the child welfare is being taken care of.

This is a very limited and actually dangerous outlook about what constitutes welfare of child.  Even a child who lives in an orphanage may be able to meet the above basic needs of life, but as a society we cannot and should not encourage a situation where child welfare is considered done and complete once the very basic physical and educational needs of a child are met.

So the definition of child welfare needs to be expanded to be on par with child’s welfare when a child is living in an intact two-parent family.  Anything less than that is a compromise based on life situations and circumstances which the child has no control over.

So with that in mind, the definition of guardian should be expanded from one who has sole custody whether physical or legal of a child, to concept of a joint guardian of child’s well-being and growth and child’s best interests.  With the current practice of guardianship being a sole guardian affair, the concept of child welfare takes a back seat relative to rights of the guardian who has sole custody.  So guardianship should be expanded from sole to shared guardianship which involves both parents and they need to collaborate to achieve maximum well-being for the child.

As a public policy too, laws and courts have to discourage a practice that when two parents who had earlier decided to have a child together, later decide that one parent can move out completely from child’s life as a condition of divorce, or just as a matter of convenience.  If sole guardianship is encouraged, such behaviour is bound to increase and it goes directly against child’s welfare.

6. How to create and implement mediation or conciliation institutions to be necessarily involved in the process of grant of guardianship and shared parentage

For that to happen, firstly the current system of advocates acting as mediators in family courts has to be replaced by marriage and family counsellors acting as mediators.  The current mediation system is of the kind where a perfunctory attempt is made to bring the warring couple together, failing which the discussion immediately shifts to how much the wife wants from husband and how much the husband is willing to part with to get the so-called mutual divorce.  To prove this point, a simple data from Bangalore mediation centre is given below which shows that out of 31232 cases settled by mediation between 01/01/2007 to 30/08/2014, there was reunion in only 111 cases.  All the other cases deemed to be settled are basically divorcing arrangements, with most likely nothing by way of reasonable child custody or access to fathers.  If one of the objectives behind Family Courts Act, 1984 was to promote reunion/reconciliation, the mediation centres have failed spectacularly in achieving that goal.

http://bangaloremediationcentre.kar.nic.in/statistics.html

Also, there should be some guidelines too for selection and continued office of marriage and family counsellors/mediators:

a) The family counsellor/mediator should himself/herself have a stable and long marriage with well-adjusted children.  While it is possible that a mediator who is a divorcee can give sound relationship or child-raising advice to others, there is no need to complicate things when there would be sufficient choice of mediators available otherwise.  It will also give confidence to the couple seeking the counselling/mediation.

b) Statistics should be collected about success/failure of family counsellors/mediators in achieving goals of family reunion, well-being of the family, child access guidelines being followed etc.  The current methodology of counting the number of cases handled has no consequence to welfare of family.

7. Whether child welfare officers may act as information/ service providers?

Presumably, the question refers to service providers as defined in Protection of Women from Domestic Violence Act , 2005 (PWDVA).   The PWDVA is a legislation created solely to protected wives from domestic violence, and one of it’s provisions entitles the women to get relief by way of child custody order, and it is almost always done to get that order ex-parte by making domestic violence allegations and by avoiding sending of summons/notice to the husband/father before that order is passed.

Now if DV Act service providers are paid or judged based on number of DV cases filed, notices served, and the like; they will not have any incentives to make a marriage work if things can be worked out.  Their incentives will be like a salesman’s incentives to meet a quota, or create more number of DV cases.

On the other hand, the incentives of a child welfare officer should be very similar to a family counsellor’s incentives, to promote well-being of both the parents whether they decide to separate or stay together, and the children.  So child welfare officers should get judged on different criteria and different type of statistics.  They cannot be judged by statistics like number of cases handled and disposed in a week/month/year, and the more the better!  So child welfare officers must be completely different from service providers or any other persons working for DV Act implementation.

8. Whether there should be physical or joint custody or should it be left to the discretion of the judge?

The custody should be both physical and legal and shared between parents.  If too much discretion is given to the judge then it has not much benefit since the parent who is dissatisfied with the order will not understand the decision as to how it was arrived at an based on which parameters.  The guidelines of shared parenting will become a mere paper document with no force behind it.  Also, it has been seen in family courts that judges decide cases within 5-10 years.  Even interim orders for child visitation can take 2 years.  if too much discretion is given to judges, there is no hope that a reasonable order can be arrived at within reasonable time.  The child will be deprived of access and love of the missing parent and all that delay is not good for child’s welfare.

With current state of judicial affairs in India, the discretion given only leads to more delays and more litigation, and there is no study yet which shows that all the discretion being used by judges is making the citizens more satisfied with the courts!

Anecdotal evidence suggests that judges in family courts do not consider child welfare to be more than child being fed, educated, and having roof over his/her head.  Otherwise one cannot explain why in India the routine access time (called child visitation) between children and fathers is not more than twice a month for 3 hours each.  Giving discretion to the judges will not result in situation improving any further from what it is now, since judges follow the precedents from previous cases and that can change only if explicit provisions are made in the new guardianship and custody laws.  No study has been done by any government agency including NCPCR (National Commission for the Protection of Child Rights) on effect on children due to divorce/separation of parents.  This has been confirmed via RTI reply received from NCPCR.

9. In which circumstances must shared parentage arrangements be withheld? Eg: domestic violence, insolvency, mental illness

In theory, if there is child abuse or violence by either parent in the house, it may be said that giving same  access to that parent may be detrimental to child’s well-being.  However, the access decision has to be calibrated based on severity of abuse and also child’s own needs.  Even for a serious offence like drunken driving, the law doesn’t permit revoking the driving license of someone for whole life after the first offence itself.  The same principle needs to be followed in child access decisions, and unless a serious crime or moral depravity of a parent is proven, child access should not be withdrawn completely.  Mere allegation of serious crime should be given zero importance, since it is routinely seen that wives/mothers allege child abuse, child’s sexual abuse, own sexual abuse during divorce/DV petition but never provide any evidence at trial stage, the whole purpose being to force and pressurize husbands/fathers to settle before the case comes to trial and evidence stage.

Also, in practice it is seen that whether in family courts or in DV case orders, father is practically thrown out from child’s life immediately upon filing a case by wife.  The whole practice of family law seems to be built on the theory that on merely filing of allegations against a husband/father, the best course of action is to throw him out both from the house and from child’s life.  It has been seen that wives have alleged sexual abuse of child by father in the petition, but didn’t provide any evidence of the same later; but by which time the child has been alienated and kept away from father for years altogether.  In such a scenario, subsequently the whole exercise by judges of asking the child his/her wish whether to stay with their father is a total farce.  Of course, there are never any penalties made on the mothers for making a false allegation.  That just matches with general practice followed in Indian courts where only very serious perjury cases are taken up by courts and that too after much effort.  But in family court and guardianship issues, treating every false allegation as minor leads only to booming litigation practices of advocates and no child’s well-being is being achieved.

Shared parenting arrangements should be the norm.  To tackle the problem of wild allegations used to get favourable results, a new doctrine needs to be involved in judging family matters.  Which is that since it is difficult to find the truth in matrimonial issues (as acknowledged by Supreme Court also in a judgment), the focus should shift on penalizing any spouse who makes an allegation which is proven false.  The practice of family law should shift from making wild allegations, and then fighting it out in courts for years; to penalizing any person who makes allegations proven to be false later.  In terms of child custody issues, the parent who makes false allegations should get reduced child access and responsibility, since it is a foregone conclusion that a person making false allegations to get some reliefs cannot possibly instil good values in a child.

Insolvency of mothers are not considered a ground for not giving custody to them.  In fact, it is decided that the father can take care of the financial needs.  In the same vein, insolvency of fathers should not be a ground for not giving custody to them.  Since the law already says that financial needs of child has to borne by both parents in proportion to their incomes, the laws related to maintenance of wives should not be mixed with issues of child having access to both parents.  Both parents can contribute to bank account in name of child in proportion of their incomes, and withdraw funds from that bank account only for purpose of child’s needs and welfare.

Mental illness if it can be managed with medication and other therapies, should not be a ground by itself to deny child access.  However if the parent with mental illness tries to create issues with child and poison the child’s mind against other parent, then such behaviour should not be excused and forgiven by hiding behind the logic that that parent has mental illness so he/she can’t help it.  The guidelines should be made in such a way that a parent with mental illness is encouraged to move towards normal behaviour rather than use the mental illness as an excuse to indulge in behaviour detrimental to child’s best interests.  The courts and child welfare officers should also strictly not allow mental illness as an excuse to bring down standards of parenting.

10. Should and how does gender inequality (e.g. financial) affect establishing a shared parentage preference or option? E.G. the use of children as bargaining chips to secure maintenance

The issue of child shared parenting should be totally separated and decoupled from issues of deciding maintenance.  It has been seen in courts that instead of deciding on a matter of interim visitation where a maintenance case is also pending, the judges couple it together whereby the child also gets deprived from father (mostly) if the maintenance order gets delayed.  The child parenting issue has to be decided within 1 month more than which is detrimental to well-being of the child, and judges have to record reasons if it does not get decided within 1 month.

To disallow use of children as bargaining chips in maintenance cases, a standard provision should be made that both parents will open a bank account in name of minor child with both parents being joint guardians, and they will need to deposit sums of money in proportion to their incomes into the child’s account.  The accumulated sum will be used by either parent towards child’s welfare only.  If at any time a parent uses money in that account for other purposes, he/she will get penalized by way of reduced responsibility of guardianship, and possibly even losing guardianship and custody rights if it happens repeatedly or in extreme cases.  With such a provision in place, the whole unnecessary complication of mixing of laws related to maintenance of wives with child’s financial needs will be avoided.

11. What should be the role of the court in matters of joint custody? Should the court be proactive in such matters i.e. a constant supervisor of such arrangements?

As of now, the family courts have even been unable to enforce even standard and basic visitation orders of twice a month for 3 hours given to fathers.  It is difficult to even imagine how the courts will supervise a shared parenting arrangement on a proactive and ongoing basis, when they are unable to or disinterested in execution of their own court orders of basic twice a month visitation to fathers, which is actually contempt of court!

The constant supervision may be unnecessary and can be avoided if the courts adopt the simple maxim that those making false allegations or violating court orders will be penalized for their actions.

There is another argument against constant supervision, which is that if the well-being of children of divorced/separated couples needs constant monitoring; why not extend the same to monitor well-being of all the children and all the population?  State should not interfere in family affairs unless a serious problem of the nature of crime or against public policy is happening.  There is a presumption being made that a separating/divorcing couple will necessarily indulge in violation of arrangements and court orders, which can be avoided by simple enforcement of court orders, which the courts don’t want to do, for reasons best known to themselves, since by doing so they are being part of of the problem of rampant contempt of court.

12. What should be the nature or limit of discretion that judges can use while awarding joint custody decisions?

In general, the experience in family courts in India is that too much discretion is not good. If shared parenting is made an option, then it will be susceptible to numerous and continuous requests for modification of interim orders, and other such tactics used by parties to a marital dispute.  If judges are given discretion, they will most likely follow the safe precedents which currently are twice a month visitation for 3 hours to non-custodial parents (mostly fathers).

What is required is guidelines and a framework to decide on a shared parenting plan for a couple going through separation/divorce.  The shared parenting plan will have parameters about child and both parents like child’s age, child’s school, distance of school from residence, parents’ residence, parents’ own wishes about child access, working hours and schedule of parents, child’s extra-curricular needs etc.  All these data must be filled by court/judges/child welfare office and only then they can come to a conclusion and write it in the order.  Any parent who is later found to have given false data to court to get a favourable child access should get heavily penalized by way of much reduced child access instead.  The guidelines should also have a maximum time period of 1 month to arrive at custody/visitation orders.

The question also arises that if discretion is given, then how will the results be measured of those decisions.  The way things are judicial decisions if not considered just by a parent can only be appealed in higher courts, and with the current scenario of spending a few years to get a basic visitation order, it is unfathomable how giving discretion to judges will be beneficial overall, since their decision even if appealed will lead to much delay in practical terms; and the child will lose all that time with the parent.  Discretion in such matters seems to help mostly the advocate community and the divorce industry.