This article is written by Niharika Singh, from Ansal University, Gurgaon. The article is merely dealing with how the custody of children is decided in case of an overseas dispute. It is a global study, but primarily focussing on the Indian scenario.

Introduction

Over the past few years, the world has become an increasingly close-knitted, easily accessible place as we now live in a global society. It is also a far smaller place than it was earlier. Inter-country travel, as well as even inter-continent travel, is now easier, and more affordable than it has ever been. Logically, we can say that the world in which we live now, and our children live in, has grown to be immensely complex. 

It is very common now, for people to be transferred and moved to different foreign countries for work opportunities, etc. due to globalization and international job opportunities. Even though the world is now full of more opportunities, risks have also grown equally. 

Globalization, cross-border migration and international mobility have all the positive traits, but what we don’t realise sometimes is that they also bring up new risks and negative impacts to children that get stuck in cross-border situations. 

Now, there is an increased possibility that living abroad, being married, and raising children, all together, can result in serious complex issues. There is a significant increase in relationships of individuals from different cultural backgrounds and different nationalities, which does not allow their mindset to match completely. 

If we look in particular to the Indian context, the latest statistics show that 25 million Indians, out of a population of over a billion Indians, are Non-Resident Indian’s, who have migrated to various jurisdictions, created families, new spousal, that also bring along many new family disputes. India has lately seen a lot of foreigners venturing in and making India their permanent abode. A new niche has been carved out due to the cross-border family relationships, in the jurisdiction of family law disputes, new issues & new solutions to those issues. These problems mostly do not have a solution that is already in place, as these problems have only prevailed in India over the past decade or the past two decades. This results in a new tailor-made solution for each of these cases, depending upon the nature of the case. Child custody cases can also be some of the most complicated disputes. Especially when child custody cases take place in an international arena, they can actually be very heated and emotionally exhausting for both the parties, as well as the attorneys. 

India’s judicial system, known to be innovative, also takes years at times to actually decide a solution for these cases. While these cases of overseas child custody disputes are largely regulated by the State and federal law, it is sometimes very difficult to determine which country actually has jurisdiction over them and what laws should apply. Two major questions that arise here are –

1. What if one parent takes the child to another country, which country’s laws will apply? 
2. What if an international custody dispute actually materializes? 

These litigations of child custody disputes are very fragile and at the same time, they need a solid solution. 

Lastly, After the breaking down of a marriage, and separation of a couple, the person who suffers the most is the child born out of the marriage. In this case, the Indian Law is said to be different and positive as it holds the welfare of the child as a primary factor of consideration when deciding which parent should get the custody of the child. The factors that constitute the welfare of a child include – 

• The ethical upbringing of the child
• Good education
• Self-keeping of the child
• The economic well-being of the guardian

The mother and father of the child, both, have an equal right towards the custody of the child. The question is – who gets the custody of the child. This is decided upon by the court. 

Understanding “Child Custody”

The term “Child Custody”, in literal terms, refers to the hand-on legal relationship between a parent and child. Custody includes the parents –

• Right to raise
• Care for the child
• Make all decisions regarding the child involving healthcare, education, and religious upbringing.

All of these issues become contentious when couples separate or divorce. The court gets involved when the child’s custody and upbringing are in dispute, and the court makes the final decision as to who the child will live with, who the legal custodian of the child will be.

LEGAL DEFINITION: A decision by the Court that clearly states which parent will have the care, control, and custody of the child post-separation of the parents. 

The custody may be either assigned to one parent, or to both the parents jointly. 

Types of Child Custody arrangements available in India –

1. Physical Custody
2. Joint Custody
3. Legal Custody

Whichever custody is best suited in each case, is given.

Custody of a Child in case of Overseas Dispute 

Overseas Child Custody disputes are far more complicated because of the intersection of family law from multiple countries. Each country, each continent has its own laws relating to the same but there is a common convention that has been ratified by most countries till now – The Hague Convention, 1980. All remedies are also mentioned within the convention. To date, 96 members are signatory countries to the Hague convention. 

Countries that are a signatory to this convention have to follow all rules and regulations, along with all laws that are mentioned within the convention. Typically, after parents separate or divorce, there is a long ongoing custody battle. One such custody battle may even arise when a biological parent tries to remove a child from their home country and shift/move to a foreign country. In simple terms, under the Convention, we can say that removal of a child is also considered improper if a child was a resident of another signatory country before the removal. 

Whereas, other countries tend to follow their own laws pertaining to the same. It depends on the jurisdiction. 

The Indian Courts in recent years have witnessed a large number of cases pertaining to disputes on overseas child custody. There is a growing phenomenon of these disputes due to global business and employment opportunities. 

Post-separation of parents, there are a lot of issues that arise relating to the custody of a child, especially in overseas cases. It is, however, upon the court to decide who’s custody the child will be in and what type of custody it will be. 

The jurisdiction is one main issue that is faced during Overseas disputes. 

Determination of a jurisdiction 

Child Custody Jurisdiction – This typically refers to the right of a Court to hear and decide a case. 

• The Court must have Child Custody Jurisdiction before it can decide or hear a case relating to it. 
• Child Custody Jurisdiction has been difficult to decide for many years, which has caused conflicts between many States and sometimes even federal law. 
• Today, ‘Uniform Child Jurisdiction and Enforcement Act’ (UCCJEA) has been adopted by most States now. 
• This act was written in order to resolve child custody issues and give custody jurisdiction to the home state of a child. 

However, apart from all of this, jurisdiction for child custody issues may also change over time. Usually, the first court to decide child support and issues related to custody makes all the decisions for the child even later. But, in some cases, the jurisdiction may change later on. This may be due to reasons like the family later moving away completely from the original home state, then the home state will not possess the jurisdiction any more. Two states cannot have jurisdiction of a child custody case, together.

In case a child is in immediate danger, any state court is allowed to enter a temporary emergency order. The order is in the best interest of the child, to protect the child and provide for the care of the child. The court protects the child until the case is moved to another court, with full child custody jurisdiction. 

Jurisdiction issues are very difficult and confusing, and only a child custody lawyer can actually help and make sure that the case is in the right place.

Remedies Available when the Child is taken Wrongfully

Due to the broadening of social horizons as well as the merging of cultures and nationalities, there are unprecedented troubles as well when problems arise here. This is one such problem. 

Wrongfully Taking a child is legally referred to as Child Abduction/Child Removal. 

In simple terms, this refers to a parent or family member of the child taking the child with them, out of their country of residence. This is mostly done by either of the parents in order to hamper the other parent’s contact with the child. The parent takes the child away without the consent of the other parent, this constitutes what is known as child removal or international child abduction.

Remedies 

• Section 3 of the Hague Convention of 1980

The Section reads that the removal or retention of a child is considered wrongful where –

1. it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention

2. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

This is a global remedy used by all nations that are a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

Since India is not a signatory to the convention, it does not follow this Act.

Indian Perspective 

• The Constitutional remedy of the Writ of Habeas Corpus under Article 226 as well as Article 32 is used in India very commonly, by the parent against the spouse allegedly abducting the child to India. 
• Recourse in India can also be sought through the provisions of the Hindu Minority and Guardianship Act 1956. This has extra-territorial operation by seeking guardianship rights for their own child. 

In the case Kulwinder Dhaliwal v. State of Punjab (2013), which was a dispute that was completely dealing with inter-parental custody of a child, the court respected the orders of the Ontario Superior Court of Justice, on a Writ of Habeas Corpus. The court ordered the custody of the minors to the petitioner and the children were later directed to be handed over to the petitioner and gave liberty to take the children to Canada.

Similarly, in Vikram Vir Vohra v. Shalini Bhalla (2010), held that the child custody orders can easily be altered for the welfare of the child and the ultimate consideration is the betterment of the child. The Supreme Court permitted the mother of the child to take her son, a minor who was 10 years old, to Australia as the child wished to stay with the mother. The welfare of the child was held as a paramount consideration here. 

Gurmeet Kaur Batth v. State of Punjab (2009) was another case in which the High Court held that it is permitted to exercise jurisdiction held in Article 226 of the Constitution of India by the issue of the Writ of Habeus Corpus, in all cases that involved Inter-parental Child Abduction. The earlier order of the Canadian Court, in favour of the mother who was the petitioner, was relied upon and enforced as well. 

Relocating a Child to a Foreign Country

• In some cases, both parents may decide to reside in the same country.
• But, due to a change in circumstances, in many cases, one parent may seek to relocate to a foreign country, due to various reasons.
• The parent may also wish to take his/her child with them when they relocate.
• The Court, of any country for that matter, will weigh several factors in order to decide whether or not the parent will be allowed to move with the child or not.
• The Court weighs many factors that include whether or not the country is a signatory to the Hague Convention.
• One factor also includes whether the foreign jurisdiction can enforce any existing custody orders or not. 
• The main factor that will influence the decision of the Court will be the effect of the relocation on the current custody.
• In the end, the ultimate factor in determining whether to allow one parent to relocate the child to another country is whether the relocation will be in the best interest of the child or not. This usually happens in all custody cases related to relocating to a foreign country.

Relevant Provisions and Laws across the Globe

The Hague Convention 

The Hague Convention on Civil Aspects of Child Abduction came into force on December 1, 1983. The Convention now has 75 contracting nations to it, but a point to be noted is that India is not a signatory to it. The topic of whether or not India needs to be a signatory to it in today’s times is a highly debatable one. Also, from practical experiences, it can be stated that no principles laid down by the Convention are applicable in India. 

Highlights of the Convention  

• The fast technique for the arrival of the child that is wrongly evacuated or held in contracting, to gather its nation of ‘constant living arrangement’ is guaranteed by the Convention.
• Guarantees that all laws, and privileges of care etc, of all Contracting States, are regarded and considered in all other Contracting States.
• The Convention also rebuilds the existing conditions by restoring the child to the nation of ‘ongoing living arrangement’.
• Article 12 of the Hague Convention lays down the basic conditions between the parties of the Convention for making a request for the return of a minor child.

Provisions in India 

• India is not a signatory to the Hague Convention as a nation first needs to have a residential law set up before it turns into a signatory of the Convention.
• As of now, there is not even any particular Indian enactment tending to issues identified with the abduction or removal of a child from or to India.
• Law Commission of India has also presented the 218th report titled – “Need to consent to The Hague Convention on The Civil Aspects of International Child Abduction 1980” on 30th March 2009.
• A speedier cure here is to record a Writ of Habeus Corpus in the High Court or Supreme Court.
• Guardians and Wards Act, and the Hindu Minority and Guardianship Act are also two legal remedies in any cases relating to disputes on child custody cases. 

Recent Development in India 

• On June 22, 2016, a proposition to institute a draft of the ‘Civil Aspects of International Child Abduction Bill, 2016’ was posted by the Ministry of Women and Child Development (MCWD) website. It was considered that this was constituted in order to have an empowering enactment in India before the increase to The Hague Convention. 
• Also, the Supreme Court had issued a notice to the Central Government that states a request. The request is to look for rules for countering International Parental Child Abduction (IPCA). It was issued on 1st December 2017.
• A notice in the petition by the NGO “Bring Your Kids Home” was also issued by a bench of Justices Rohinton Fali Nariman and Navin Sinha. 
• Lately, there have also been many NGO’S and other various organisations that have started working in this field. They feel that through training, activism and support, child abduction laws, etc. will be firmly changed. A few examples of these associations are – “Cry”: Organisation working to ensure that all children are safeguarded from unsafe impacts, mishandle, or any such activity. Also, “Bring Your Kids Home” is also an awareness programme started by guardians left behind in India whose children have been taken away to a foreign country.

Landmark Judgements

Prateek Gupta v. Shilpi Gupta & Ors. 

• In this case, the Supreme Court passed an important judgement wherein the custody of a child who lived in the US, and later brought by the father to India was disputed.
• The appellant (Father) approached the Supreme Court against the High Court’s order.
• Due to marital issues, the couple separated and the father returned to India, while both the children continued to live in the US with the respondent (mother).
• The father, however, used to make occasional visits to them to meet his sons. 
• On one such occasion, he allegedly took along with him, one son, Aadvik. 
• This was done by foul play thereafter the father returned to India with the child without any information or consent of the mother. 
• The mother, aggrieved by this, then approached Juvenile and Domestic Relations Court Fairfax County in the US. 
• She then established temporary custody of the child and the father was directed to return the child to the Commonwealth of Virginia and to the custody and control of the respondent. 
• The respondent then invoked the writ jurisdiction of the High Court of Delhi, he sought a writ of Habeas Corpus against the appellant for custody of the child alleging that it was illegal and unlawful.
• The High Court, however, still directed the appellant to hand over the custody of the child to the mother. 

Smt Surindar Kaur Sandhu v. Harbax Singh Sandhu 

• The issue that pertained, in this case, was to the Jurisdiction of Court in Child custody case.
• Here, the minor son was British Citizen, whereas the parents were Indian Citizens.
• Interpretation of Section 6 of The Hindu Minority and Guardianship Act, 1956 was held by the Court dealing with the Custody of the Child. The Court observed that this Act constituted the father as the natural guardian of the minor son.
• But, it was also held that the provision cannot over-power the consideration as to what is conducive for the welfare of the minor. 
• Also, the modern theory of conflict of laws recognises the fact that, and also prefers the jurisdiction of the State that has most intimate contact with the issue, to be in power.
• It was held that the right Jurisdiction of this case is not India. 

Conclusion

We can conclude to say that regardless of the country that you have an issue in, and whether or not the country is a signatory to the Hague Convention, the most important factor is time. It is important for the parent(s) to always seek legal counsel on time, and assert their rights as soon as practical. 

It is now also seen, with the emerging scenario, that there is no such uniform pattern of decisions in India to resolve custody disputes pertaining to overseas involvement. The area of this particular law is at their infancy stage in India. 

Although the judiciary has been showing remarkable actions in dealing with such cases, a firm law is also a must. 

India, not being a signatory to the Hague Convention is also missing out on a lot. There should be a more consistent and permanent legal response pertaining to overseas custody disputes in India. The first step to this can also be the joining of the Hague Convention or signing bilateral agreements with other non-signatory countries in this regard. These actions will some-what give India a solid law regarding these overseas disputes.

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