In this article, Sanghamitra Sengupta discusses the visitation rights for divorcees in India.

Divorce, an unavoidable step in one’s marriage can either prove to be a bitter experience for one party and a much-awaited event for the another. Regardless of how the parties to the divorce feel or experience, the party most affected by a divorce is the child. The question of child’s custody is of utmost importance after a divorce has been granted to two spouses.   

Who is a Guardian

Every child in India, below the age of 18, must have a legal guardian. This guardian is necessary to take all important decisions on behalf of the minor. Guardianship and custody are not the same and must not be considered synonymous. Mostly, the right of custody and guardianship reside in the same person, but essentially, guardianship is a greater role played by a person than custody as custody is merely taking care of a minor’s daily needs and upbringing. Custody, as compared to guardianship, is a limited right. In our country, guardians can be of 2 kinds.

1. Natural Guardians – natural guardians are those persons who are presumed naturally, by the law, to be guardians of a minor. According to this, parents are natural guardians.
2. Limited Guardians – legal guardians are those persons who could be either appointed by a court of law to manage the affairs of a minor or could be appointed by a natural guardian, himself.

What Does My Personal Law Have To Say About Guardianship?

• Under the Hindu Minority and Guardianship Act, 1956, a Hindu minor’s natural guardian is his/her father. The mother is a guardian only ‘after’ the father. This implies that, in case of divorce, a mother has to file for custody of the minor as she is not assumed to be a ‘natural guardian’. But, section 13 of the same act also lays down that right of the father to be a guardian of the minor is subordinate to the welfare of the child. This goes on to show that the act values the minor’s welfare above all. If the minor is of the age of 5 or below, then, it is assumed that the mother is the natural guardian.
• Under Muslim Law, be it the Shia or Sunni sect, a father is considered to be the natural guardian of the minor child. The mother is not given the status of a natural guardian, even after the death of her husband. This means that under Islamic law, a father will have guardianship, even if the mother has custody of the minor, after divorce. Although the mother may have custody of the child after divorce, the father still remains the guardian of the child, as he may decide about the child’s movement, education, religion and other important matters.
• Christians and Parsis follow the Guardians and Wards Act, 1890, which is essentially a secular law regarding matters of guardianship.

What Is Child Custody?

When two spouses decide to divorce each other, they usually find themselves on opposite sides with regard to ‘custody’ of the child. The same matrimonial court that decides the divorce case, according to principles of the personal law, governing the spouses, is empowered to decide matters of custody of minor children. If the court of law awards custody to a particular spouse or parent, it means that, the particular parent will be in charge of looking after the daily affairs and upbringing of the minor child. The minor child will live with the parent who was awarded custody of the child.

Can Both Parents Have Custody Of A Child After Divorce?

When both parents have custody of their minor child after divorce, it is known as Joint Custody. In India, Joint Custody has not been dealt with by the law, but, with changing times and difficult scenarios emerging, joint custody is being offered by courts of law. This change is because of one spouse,  expressing their angst against another, having complete custody of the child. In Joint Custody, a minor child may reside with one custodial parent for a specific period of time and with the non-custodial parent for another specific period of time. However, it must be noted that, joint custody is still not provided for by the Indian Law.

Is a Non-Custodial Parent Allowed To Visit The Child?

Yes. There are certain parties, apart from the custodial parent who are in proximity to the child, who may be granted visitation rights by the court. They are:

• Grandparents of the child
• Non-custodial parent, i.e., biological parent

A court may pass a visitation order in favour of the noncustodial parent, establishing the visiting time and place. The main consideration for awarding visitation rights must be that it is awarded for the welfare of the child and that the non-custodial parent is very close to the child. Make sure your visitation rights are explicitly stated in a document with no ambiguous terms.

Why Are Visitation Rights Important For The Noncustodial Parent?

The basic motive of awarding visitation rights to the noncustodial parent is to protect the child from the conflict between the two parents. The child is entitled to spend substantial time with the noncustodial parent, if not the equal time. Efforts should be made by the parents or even the court, for that matter, to enable them, to mutually decide a visitation schedule and the rights given to the noncustodial parent. Visitation must be viewed as something done for the benefit of the child. Visitation rights can be granted to grandparents and not just a biological parent.

What Are The Visitation Rights A Non-Custodial Parent Is Entitled To?

1. The non-custodial parent receives his visitation rights through an order made by the court of law, dealing with the custodial matter at hand.
2. The order given by the court must ensure that the child has frequent and continuing contact with both parents, to ensure the welfare of the child.
3. The noncustodial parent, too, must have an equal opportunity, to spend quality time with the child on holidays and vacations.
4. The noncustodial parent is responsible for the care and safety of the child during the visits.

The timing and other rights can also be determined by the court by looking into important details such as-

• Age of the child
• Distance between the homes of the custodial and noncustodial parent
• Holidays are given more preference for purposes of meeting the child. This implies that, while giving an order spelling out the visitation rights, the court may allow the noncustodial parent to meet the minor child on weekends, festivals, religious occasion, birthday and long school vacations

It must be noted that the court has all the rights to decide the time, manner and place to enforce visitation rights of the noncustodial parent. Sometimes, the noncustodial parent receives a right to visit the child, only, in a children’s complex room of the family court. The court may revoke the visitation rights awarded, if, it finds that the noncustodial parent has misused his right or breached the duties imposed by the court.

Can My Visitation Rights Be Denied By The Court?

Yes. If the custodial parent files a complaint or an injunction to the court, in order to deny the noncustodial parent, their visitation rights, the court may grant so, on the basis of the complaint. The court may call for a hearing where it seeks to establish whether the noncustodial parent is not fit to receive visitation rights due to his abusive nature towards the child or his tendency to affect the child immorally.

Can My Visitation Rights Be Denied If I Cannot Continue Child Support?

Child support is a right that cannot be denied on the basis of inability to provide support to the child. If due to difficult circumstances, you as a parent are unable to provide financially to your child, you cannot be denied a right to visit the child, by the custodial parent. If, the custodial parent denies you, your right to visit the child, this will result in “frustration of visitation”. On being refused your right to visitation, you must approach the family court to receive your right.

What Happens If The Custodial Parent Wants To Relocate Somewhere Else?

We live in a time where migration for better work opportunities has become easier. Relocation to a different city or country, by the custodial parent, is no doubt, a threat to the welfare of the child as it stands as an obstacle in the visits made by the noncustodial parent, but, it is inevitable. The court cannot refuse the custodial parent to relocate. There are a few measures which law prescribes for a custodial parent wishing to relocate-

• The custodial parent must give a notice to the court expressing intent to relocate and send a copy to the noncustodial parent, as well. The notice must include: address of the place the custodial parent intends to move to, legitimate contact number, reasons to relocate in brief, a proposal for a new schedule of visitation.
• The noncustodial parent is allowed to make a statement, filing an objection, to the child relocating with the custodial parent
• The noncustodial parent is allowed to file a petition regarding modification of custody, parenting time or child support

Abduction of Child in Visitation Cases

Dirty games have often been witnessed in child custody cases where a noncustodial parent may abduct the child from the residence of the custodial parent or the child’s school during school hours in order to get custody of the child. In such a fiasco between two parents, the child becomes the ultimate victim.

Dr. V. Ravi Chandran Vs Union of India & others – In this case, a US court while granting a divorce to an Indian couple handed over their child’s joint custody to the couple. The wife brought the child to India, depriving the father of joint custody. Supreme Court of India directed the wife to head back to the USA in order to give her husband equal rights of custody of their child otherwise her passport would be seized and the child would be under the sole custody of the father in the USA.

NGOs fighting for visitation rights

There are a handful of NGOs in India that seek to help a noncustodial parent and grandparents to win visitation rights in the court or outside court, by way of mediation.

• Child Rights Foundation: This NGO, based in Mumbai, Maharashtra, has put in tremendous amount of hard work over the years into making a guideline for those facing divorce cases. The High Court of Himachal Pradesh, Madhya Pradesh, Bombay has adopted their formulated guidelines on child access and custody and directed family courts to refer to them while dealing with a divorce case at hand.
• Child Rights Initiative for Shared Parenting (CRISP): This particular NGO has different “wings” meaning departments that deal with various aspects of child custody. One such wing of theirs deals with grandparents and custody of children. This department has run a campaign on the need for a law to safeguard grandparents’ visitation rights. Several senior citizens have approached the NGO with their complaints of being separated from their grandchildren after their child’s divorce. Thus, CRISP as an NGO has demanded visitation rights for grandparents, a helpline for distressed grandparents, creation of a law for visitation rights of grandparents. One can contact CRISP here.

Practical Advice on Visitation

Although visitation rights have been written about in quite some depth in this article, practical advice helps a noncustodial parent largely by guiding them on how to react to a situation where laws start seeming vague and vulnerability surrounds them.

• Make sure you have a document in your possession that is legally binding on both the custodial parent and you, as a noncustodial parent/individual with visitation rights. The document must contain in unambiguous terms when and how you can gain access to visit your child. This document will serve as a brilliant tool in achieving access to your child with certainty.
• Acknowledge the fact that in India, child support and visitation are treated separately. You mustn’t worry about your visitation rights being taken away solely because you can no longer financially support the child. Visitation rights are beyond one’s financial capability and can never be abrogated because of such a reason. If the custodial parent prevents you from visiting the child because of your inability to support them financially, speak up, as the custodial parent could lose their right to custody on this ground.
• If the custodial parent seeks to relocate to another part of the country or abroad, worry not. Talk to the custodial parent about the child’s need of love from both the custodial and noncustodial parent. Talk to your lawyer about the custodial parent’s relocation plans if the custodial parent refuses to understand your stance.
• Do not be irregular in visiting the child for whom you’ve sought visitation rights for. Such irregularity is noticed by both the custodial parent and the court. The irregularity can thus affect your rights negatively.
• Inform the custodial parent of your visit beforehand so as to avoid any awkward scenario for both of you and the child.

We arrive at the final conclusion that, in our country, the family courts run by the doctrine of Parens Patriae. The doctrine implies that the court is obligated to make a decision, keeping in mind, the child’s welfare above all. This reason is exactly why visitation rights are considered to be highly important, to allow the child to bond effectively with both parents.