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What are the visitation rights for divorcees in India?

December 18, 2017
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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?

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:

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-

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-

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.

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.

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.

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