Need for book
Here is a list of practical problems faced related to child custody and visitation by fathers:
- 1.In many cases, the child is taken by mother to her native place, and being far away the father is deprived not only of physical contact with child but he is usually not allowed to allow even telephonic or online communication with child by mother.
- 2.A general problem is that lawyers discourage fathers to file for child custody or visitation giving various reasons like "child is very small", "child custody is usually given to mother", "we will handle other cases right now", and so on. What is not informed to father is that the longer he delays (or doesn't file a case at all), at later stage the same can be used as a reason against him from giving him meaningful access/interim custody or visitation of child. However, the interesting thing is that if the situation is reversed in the sense that mother has left the child and father had been raising the child alone, the mother can approach court even after a gap of 1-2 years and be able to get full custody of child easily or get meaningful shared custody rights. It reflects the societal and judicial mindset of considering mother's presence as very important for child's upbringing and father's role being more important as a financial provider for family. That attitude is not going to change in a day, and possibly may not change at all. So the focus should be to consider those logical points where some sense can be hammered back into the legal system that keeping father out of child's life is not in paramount or any kind of interest of child's best welfare.
- 3.Many fathers assume that the separation between wife/child and them may get sorted out over a period of time, and combined with discouragement by lawyers they delay filing any case whatsoever. As pointed above, fathers are not given a sympathetic hearing which mothers get if they delay asking for child access or custody. Also a general scare factor is there that the "laws are in favour of women" so people are unable to understand that child custody law is not about women, it's just a myth (even if a convenient one) that custody decisions will automatically go in favour of women.
The fact is that the custody decisions are given in favour of mothers mainly because of the following reasons:
- 1.Due to practical reasons of mother/child in different city, they don't want father to meet or contact child, and all these combined with the fact that fathers are not filing GWC case asking for any kind of access with child, e.g. time during vacations where they can take child with them to their own city.
- 2.Even if child and mother are in same city as father, most fathers don't file a case in time, and that itself results in various other circumstances including possible alienation of child from father that it becomes a self-fulfilling prophecy. Later the same reasoning is used by courts that the child is not comfortable in presence of father (which can be 'arranged' too) so interim custody cannot be given to father. When a father is not being allowed to child, then merely hoping won't work and courts cannot grant any relief unless an appropriate relief is asked for under the appropriate act (Guardians and Wards Act is the appropriate law for asking child custody or even proper visitation rights).
- 3.In cases there are other cases pending in court between the couple like CrPC 125, DV Act case, IPC 498A/406 etc, many fathers spend their energies to prove to court about ill-behaviour and false cases allegations made by wife, whereas the child custody decisions are not made based on what false allegations (since anyway as yet not having been deemed as false by court) and mental cruelty the wife has been inflicting on husband. Fathers need to highlight child welfare as the main focus of their arguments and bring in all specific wife's behaviours to notice of court to the extent that such behaviour is also against child's well-being and welfare. E.g. if wife is in habit of threatening suicide often, then the argument can be made in court that such behaviour patterns of wife will definitely make her not a fully fit parent, leave alone her being given responsiblity of becoming a sole/single parent to child in case of sole custody given to her. The focus on child welfare has to be brought in, merely highlighting wife's irresponsible or cruel behaviour won't be enough for court to automatically grant reliefs. At least that is the current situation. In future maybe a framework can be evolved (preferably in law) where child custody decisions according to framework based on which facts are proven true about each parent. As of now the ad hoc process seems to be that by default child custody is with mother so that cannot be disturbed unless very strong evidence is brought against her fitness to be a sole custodian and guardian of child, but if a father has the custody of child, then mother can come at a later point of time and get meaningful custody of child based on the fact that she is a mother and courts deem it very important for mother to be part of child's life. This is also because of the current legal regime of child custody laws where there is no concept of shared guardianship of child, with the regime being that one parent gets full custody and other parent gets visitation rights. But it is already changing quickly based on what is seen in individual cases for those fathers who fight persistently in court for shared custody etc.
Further in the book we will consider the child custody aspect from various angles listed below:
- 1.Brief discussion on laws related to child custody and how child's welfare has emerged as the main point of deciding on child custody and guardianship. So the focus will be on highlighting how the point of child welfare gets decided by courts. For this reason focus will be mostly on judgments rather than bare acts related to custody since the judgment precedents are already set which tend to overrule the statutory points in custody/guardianship laws.
- 2.Judgments highlighting custody decisions whether in favour of mother, father, or both parents having joint custody, as has started to happen in last few years.
- 3.Come up with practical suggestions on how to get shared child custody, interim custody, visitation etc depending on various practical circumstances depending on child's location, ongoing cases and allegations among couple, and so on.
- 4.How to retain child custody with father in case mother has left the child and/or is unfit for playing a role as good mother. If child's welfare is sole criterion, then this has to be a viable approach in appropriate cases, too.
- 5.Discuss the important of various HC guidelines on shared parenting plan, and how to utilize it in your state's courts whether the HC has already approved or not in your state.
- 6.Come up with practical points in filing GWC case, both with regards to points about father's role, as well as what kind of custody or shared custody to ask for.
- 7.Discuss law commission's report on shared parenting, and whether it already contains good recommendations or the laws of custody need further modifications before laws of guardianship and custody are amended by parliament.