Anjana Sharma, Founder & Managing Partner, Anjana Law Offices

With more than a decade of legal experience, Anjana comes with a BA Economics degree from the University of Mumbai, an LL.B. from the Faculty of Law, Delhi University, and an LLM in Corporate Law & Management. She is a member of the Young Singapore International Arbitration Centre, Member of the Bar Council of India, and practices in the Supreme Court of India and various High Courts of India.  She has significant experience in Indian corporate and commercial laws, Constitutional Laws, and Civil Laws. She is apt at Contract management, commercial transactions (mergers, acquisitions, joint ventures, and business alliances), information technology, banking and finance, matters relating to non-banking finance companies, corporate restructurings, real property transactions, and intellectual property law. She has significant legal experience and has advised Multinational Companies, the Private Sector, Startups and is advisory to various companies apart from handling their litigation. She is also a writer and columnist and writes on legal issues.

Although the Mother is the primary caregiver, a father’s love and guidance is extremely important to shape the lives of children. Parental alienation is not favorable to the better upbringing of kids. Shared parenting is also known as shared custody and joint custody is a type of child custody where even after divorce or separation of the parents, both of the parents share the responsibility of raising children, with equal or nearly equal parenting time. The term ‘Shared Parenting’ is applied in cases of divorce, separation, etc. In this, the parents choose to equalize and share everything like work of raising their child, earning money, house chores and recreation time. The primary benefits of shared parenting are that the child can keep close contact with both the parents in their daily life, and the parents can spend an equal amount of time with their children.

Divorce is rampant these days and the worst affected in proceedings of divorce and family breakdowns are the children. Even during this pandemic, when everything is restricted, the children and the parents whom custody was granted earlier by the courts were the most affected ones, because of the lockdown restrictions they couldn’t live up to the court order. Experts say alienation from either parent can create havoc with the child’s emotional and psychological well-being.

Maintaining the central importance of the welfare of the child in proceedings of custody ensures that the child’s future is safe and protected, regardless of changing familial circumstances. Indian courts have also arrived at conclusions that a child’s safety is paramount importance.  In an important case, the honorable Supreme Court has said that the welfare of a child is not to be measured merely by money or physical comfort, but the word welfare must be taken in its widest sense that the tie of affection cannot be disregarded.

The principle on which these cases of custody of children are decided is that of the best interest and welfare of the child’ which attempts to enable each child to survive and reach his or her full potential. An order made by the court regarding visitation must ensure that a child has frequent and continuing contact with both parents, when appropriate, and also with extended family and friends; and both parents have equal opportunities to spend quality time with the child, including during holidays and vacations.

Shared Parenting a Rising Trend

Several countries across the globe have adopted a preference for shared parenting systems over sole custody as a post-divorce arrangement concerning children. In the Western countries, this trend has arisen largely in response to changing familial roles where male caretakers taking on more child-rearing responsibilities as well as psychological studies revealing that the involvement of both parents in child-rearing is preferable to sole custody arrangements. Studies indicate that children are more happy and balanced when parents share custody, and some jurisdictions in some countries have a legally prescribed presumption of joint custody.  However, this presumption of joint custody can run contrary to the best interests of the child standard, especially in cases of domestic violence, where battered women may not agree to joint custody out of fear of further violence.

Recently, in March 2020, the Law Commission of India in its 257th report, titled Reforms in Guardianship and Custody Laws in India, had also recommended amendments in the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956 to bring these statutes in tune with the modern social considerations.

On the contrary, it is also seen many times that during divorce proceedings husbands use child custody to force their wives to give up maintenance or withdraw criminal complaints. It is not healthy for a child to move between two homes. A stable, anchored home is the best option. In a patriarchal society where women and children are often harassed, ensuring the child’s safety could be a problem. If parents have unresolved issues, they will not be able to agree on joint decisions for the child.  India does not have the necessary supportive measures, such as laws for division of matrimonial property; the right to reside in the matrimonial home; a financial plan for the future security of the caretaker spouse; and foster homes for the children. The laws could be used to harass women.

Shared Parenting Concept in India

If shared parenting is adopted, the biggest question will be on how to implement a shared parenting system in India. For this, instead of court government can set up mediation centres where staff can be trained to advise parents on parenting and relationship issues.  Both the parents can submit their parenting plan by providing the personal profile, educational qualification, residence, and income of both parties. Apart from this, parents can also open a joint bank account where they can deposit the joint amount for the future and welfare of the children.

Conclusion

With divorce rates on the rise in India, it’s time our lawmakers to give serious thought to the trauma that children and parents undergo during the divorce proceedings and the custodial battle. The court could consider appointing at least one trained child psychologist or clinical psychologist in every family court. This would help in easing out the distress faced by children during custodial litigation.

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