Custody, Visitation and Residence of Child

Last updated May 2010

Custody

Legislation should expressly guarantee equal parental and guardianship rights to both parents.

CASE STUDY: Drafters should amend laws that deny equal parental and guardianship rights on their face or in practice. For example, in Geeta Hariharan v Reserve Bank of India, the Supreme Court ruled on the constitutional validity of the Hindu Minority and Guardianship Act and whether it denied equal guardianship rights to women. Article 6 discriminates against women and states:

The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are –

a. in the case of a boy or an unmarried girl-the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

b. in case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;

c. in the case of a married girl-the husband.

The Supreme Court interpreted Article 6, however, as stating the mother and father are natural guardians of their children. See: http://www.lawyerscollective.org/wri/projects-activities/legal-aid-cell-pil. Laws should unequivocally guarantee this equality.

Legislation should state that in every proceeding where domestic, dowry-related or family violence has occurred between the parents or between the daughter-in-law and her parents-in-law, there is a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of the violence. Where there is a dowry death or dowry-related violence between the daughter-in-law and her parents-in-law, this rebuttable presumption concerning the child should extend to the woman’s parents-in-law. This presumption should extend to cases involving orders for protection, juvenile delinquency and child protection.

Legislation should require the court to consider as primary the safety and well-being of the child and of the parent who is the victim of domestic violence.

Legislation should require the court to consider the perpetrator’s history of causing physical or psychological harm or causing the reasonable fear of physical or psychological harm to family members. Legislation should require the court to consider the history of demands and other harassment for dowry.

Legislation should mandate that the absence of a parent from a court proceeding because of domestic or dowry-related violence, or the relocation of a parent due to domestic or dowry-related violence, are not factors which weigh against the absent parent in determining custody or visitation. 

See: Family Violence:  A Model State Code (1994), USA, Sec. 401 and 402.

For example, the Guardianship Amendment Act (1995) of New Zealand includes a presumption against giving custody or unsupervised access to a party who has used violence against a child or the other party to the proceedings unless the court was sure that the child would be safe from violence. A protective order under the Domestic Violence Act (1995) of New Zealand would trigger this presumption.  See:  Deserving of Further Attention: A Case Streaming Approach to Child Custody and Access in the Context of Spousal Violence (2005)

Visitation

Legislation should state that visitation may be awarded to a parent who committed domestic or dowry-related violence only if the court finds that adequate provision for the safety of both the child and the parent who is a victim of domestic or dowry-related violence can be made. Legislation should include the following options for providing safety to a child and victim parent where there has been domestic violence or dowry-related violence:

  • The court may order the exchange of a child to occur in a protected setting.
  • The court may order that the visitation be supervised by another person or an agency.
  • The court may order the perpetrator to pay a fee to defray the costs of supervised visitation.
  • The court may order the perpetrator to abstain from possession of alcohol or controlled substances both during the visitation and for 24 hours preceding the visitation.
  • The court may prohibit overnight visitation.
  • The court may require a bond from the perpetrator of domestic violence for the return and safety of the child.
  • The court may impose any other condition that is deemed necessary for the safety of the child, the complainant/survivor, or other family members.

See: Family Violence:  A Model State Code (1994), Sec. 405.

 

Residence of Child

Legislation should state that in every proceeding where domestic, dowry-related or family violence has occurred between the parents or between the daughter-in-law and her parents-in-law, there is a rebuttable presumption that it is in the best interest of the child to reside with the parent who did not perpetrate the violence in the location of that parent’s choice.

 

In cases of dowry deaths or suicides as a result of dowry demands or violence, laws should provide for a rebuttable presumption that it is not in the best interest of the child to reside with the perpetrators or his relatives who demanded or received dowry from the victim’s family. This presumption should extend to cases involving orders for protection, juvenile delinquency and child protection.