Advocate Pratibha Bangera (Divorce and Family court lawyer) explains how the increasing custody cases effects children torn between their parents who are fighting in court over legal battles for custody, maintenance and similar child care issues with our Editor-in-Chief Dr Vaidehi Taman.
What is child custody?
When a married couple having minor children reside separately or intend to file for divorce and approach a family court, the court can grant “legal custody of child” to any one parent. The parent who wins custody is responsible for physical, emotional and mental nourishment along with ensuring good academic performance for the minor child. The child is the parent’s legal responsibility till age 18. While one parent gets the permanent custody, the other parent gets visitation rights.
Which parent stands a better chance for custody?
The parent who has the physical custody or with whom the children reside at the time of filing of divorce, already has the physical custody of the child. The other parent who wants to challenge the same has to go to court to ask for custody. Eventually the court decides in favour of that parent who is most capable and responsible for the child highest good and wellbeing taking into account the previous record of responsibility taken by such parent and whether he/she was available for the child or has participated in the child’s day to day activities, mental and emotional and academic needs of child.
Does the person having legal custody pay for the entire expenses of the child?
No it is not like that. The financial burden of paying towards maintenance of a child needs to be shared by both parents if they are working. It is however the right of the person who has physical custody of child to ask for maintenance from other spouse as he/she is already burdened with paying for shelter, food and clothing in addition to paying for commuting to school and the daily expenses towards bringing up children single handedly.
Can a father having custody of child ask for maintenance?
Yes. Even a father can ask for maintenance if he is taking care of the child. (both father and mother) are equally liable to pay for their children.
What if the parent refuses to pay?
If there is a court order directing the parent to pay and if the payment does not come forth on time, the affected parent who is struggling to pay can ask for “distress warrant” to be issued by court to arrest such person and in some cases the court may even direct the employer to deduct the amount of salary and directly deposit it into account provided for maintenance of child.
What happens in the case of business men who may not file returns or whose income is not steady?
In such cases the lifestyle of the parent is taken into account. The court can allow application to access the net worth of the person and his family even if they cleverly conceal the income. The previous life style and standard of living is taken into account in such cases. The child is entitled to go to same school and the parent has to meet these standards of living.
Can a parent give up custody or visitation rights and is he still liable to pay?
Yes. But he/she cannot escape financial responsibility. He/she can pay a one-time lumpsum amount or even a monthly maintenance towards child support and care. But if a parent does not want to meet or visit the child, the court cannot force such a parent to visit the child. Parents may even enter into such mutual arrangements. In many cases one parent gives up their right to meet the child to avoid confusion for the child’s sake.
What if the parent is deliberately prevented from meeting the child?
In cases where a parent is prevented from meeting the child, there is a process for visitation rights during the pendency of the custody case. Since results of cases take a long time, such deprived parent can apply to the court for interim access or visitation rights and the court is bound to grant such reliefs and cannot deny rights of a biological parent.
In which cases does the court give custody of children to father?
The court takes it into consideration the child’s highest and best interest being a minor growing child and while doing so has to evaluate comfort, happiness or dependency of child on any one parent. However in cases where a parent is addicted to substance abuse, or mentally incapable to take responsibility of child or is leading an unchaste lifestyle or found unsafe for the child’s security, or having an adulterous relationship, the court may either grant custody or visitation rights to the father.
How long does it take for a court decision or judgement on custody?
Every case has a different time frame but if litigant parents cooperate with each other, the case can resolve even on the first hearing date but it may linger for upto 3 years if there are other connected vested interest issues such as maintenance, alimony and questions pertaining to financial disputes. Also if there is one common petition seeking all reliefs the parties are forced to wait for the final order on every disputed aspect of the case.
Does the family court have separate children’s area to meet parents exercising their visitation rights?
Yes sometimes parents are ordered to meet the child within the court premises and at other times the visiting parent is given a fixed meeting date and time and the duration for same is also decided along with holiday visits and sharing of vacation.
What is the most upsetting thing about custody matters?
The worst effect is exposing the child to parental hatred to one another. The child is forced to like and/or dislike the other parent because of parental insecurity. Most times, the children are not prepared by their parents before approaching the court and they seldom know what is happening. It is shameful that some parents use their children as baits for personal axe grinding. The concept of “Emotional counseling” is very essential in these days and times.
Do you counsel such parents and what is your experience while doing so?
The best counselor to a child is the Parent. I share certain techniques such as Emotional Freedom Technique (EFT) with both children and parents and insist they take charge of freeing their mind of emotional distress (due to court case). The success rate is very good if the parent is emotionally free from mental clutter. If the parent is focused only on the financial aspects of maintenance and money matters not only does it effect their child, but it may also delay the case. Having reached a point where parents are in court already, it is better to finish cleaning up atleast the emotional baggage. Character assassinating the other parent to win over the child’s confidence may not benefit anybody. It may tarnish the child’s mind and maybe unhealthy for the child in the long run.