Context

Children are often referred to as the centre of Indian families, the glue that holds everything together. But in family disputes, the child stands in-between its two warring parents. The timeless Russian author Leo Tolstoy's famous words that all happy families are alike but every unhappy family is unhappy in its own unique way, continues to hold relevance even today and more so when the child's custody and parenting is the point of contention.

This Children's Day, we need to take a moment to remind ourselves that the well-being of our children is of utmost importance even when family ties fray. Canadian psychologist and physician, Gabor Maté has written extensively about childhood trauma pointing out that parents do not always parent consciously. They often 'clone' their own unresolved pain and trauma onto their children. This raises the existential question in custody disputes: if we were the child in these families, with our parents on the brink of separation and involved in a bitter litigation, what would we want be done to us?

Family courts and child custody: A status check

In response to an unstarred question number 1134 in Lok Sabha, it was shared that as of 30^th June 2025, there are 927 family courts pan-India. But per the 59^th Law Commission mandate, there should have been one family court per million. This means that if there are 150 crores of us Indians, we should have had 1500 family courts. Right now, we have a deficit of 38%. Overburdened courts mean that very long and unbearable uncertainty for children. They often have to wait long for custody and other support orders.

Family litigations were envisaged to be collegial, aimed at reconciliation, sustaining the institution of family. That worldview had its limitations, it didn't recognise the power asymmetry between the spouses, the lack of financial independence amongst most women and the unspoken trauma and care responsibilities that women carried. While the scales are becoming more equal with more working women, the disputes are becoming increasingly adversarial. Family disputes are now heavily “lawyered-up”. Oftentimes even more lawyered up with the involvement of senior advocates in contrast to the original enabling provision of self-representation. Hence the stakes are higher and the possibilities of conciliation or camaraderie is further diminishing.

Imagine a situation where one parent constantly speaks ill of the other while the child is with them. The entire meaning of co-parenting fails right there. Humiliating one parent in open court, especially in front of the child, can make future cooperation even harder. Custody can also become a negotiating lever in disputes between parents. One parent may seek custody to strengthen their position in an alimony dispute, while the other may seek custody alongside reduced financial obligations. Custody, however, should not be allowed to morph into a bargaining chip in an adult dispute, the child cannot be treated as a currency for negotiation.

Another problem is the assumption that shared parenting means equal time share with both parents. The 257th Law Commission Report recommended joint custody and shared parenting, recognising the importance of both parents in a child's life. Yet children need stability and continuity and cannot simply be moved between two households according to a calendar. Preserving a marriage does not necessarily mean preserving a healthy family. Historically, many marriages were sustained because women lacked financial independence, consequently, concealing unpaid and invisible trauma within the household. Such stability should not be romanticised; the child's safety and well-being must remain paramount.

Unfortunately, exchanges in family courts, especially regarding visitation and shared parenting, can become less about building a bridge in the best interest of the child and more about an all-out war between parents. This is precisely what the legal fraternity and judges must prevent.

The legal provision:

Indian family legislation revolves around the child's best interest. The child's welfare is the central consideration, especially in custody and guardianship cases. For instance, Section 17 of the Guardians and Wards Act, 1890, expressly states that a child's welfare is the court's utmost concern. Section 13 of the Hindu Minority and Guardianship Act, 1956, explicitly provides for the welfare of the minor that must override all other considerations. In Gaurav Nagpal v. Sumedha Nagpal (2009), the Supreme Court reinforced that in custodial disputes, the welfare of the child is the paramount consideration, rather than the competing rights of the parents. This is to say that even if parents stay married, children's safety, education and emotional needs cannot be compromised. The Indian Constitution as well as global conventions buttress this focus. Article 39(f) of our Constitution directs the State to ensure that “the tender age of children are not abused” and that childhood is protected against all “moral and material abandonment”. India is also a party to the United Nations Convention on the Rights of the Child (UNCRC) which enshrines the “best-interest of the child” principle.

With regard to custody, modern jurisprudence increasingly recognises the importance of maintaining the child's relationship with both parents. But shared parenting need not mean equal physical custody or an equal division of time. The child may primarily reside with one parent while maintaining a meaningful and predictable relationship with the other. This is where parenting plans help. A parenting plan is a written arrangement setting out how parents will raise and care for their child after separation or divorce, including matters such as residence, visitation, holidays, education and healthcare. Such arrangements can reduce conflict and ensure that the child benefits from both parental relationships without becoming the centre of their dispute.

In another landmark case, the apex court laid out that the primary interest of the child should be the guiding principle for any matter related to custody and access. According to Nil Ratan Kundu v. Abhijit Kundu (2008), the Supreme Court said that “the welfare of the child cannot be determined only on the basis of financial and physical comforts”. It must include the right and necessities of the child, his / her / their identity, welfare, and physical, psychological, and mental development.

There is no fixed formula of equal custody. A child cannot be viewed as an inanimate object that needs to be equally shared between two homes. It is necessary to consider stability, continuity, schooling, age, specific needs and the relation of the child with both parents.

Additionally, a parenting plan must come first before mandating any joint custody or visitation. Parents need to show how they will split up responsibilities in education, health care, communications, holidays, transitions between the households and decision-making. Most importantly, they need to show that they will not use the child against the other parent. These parenting plans can ensure the necessary protection for successful co-parenting.

Courts must also demonstrate zero tolerance to conduct that makes co-parenting impossible. To humiliate the other parent in front of the child, criticize them all the time, prevent real contacts or weaponise the custody period to manipulate the child, should be no-go. And implementing such prevention is easier said than done!

Counselling needs prioritisation, attention and human and financial resource allocation. There is still a shortage of counsellors in the Family Courts, and most of them are under-paid too. It is not possible for law to insist on meaningful co-parenting and at the same time keep its enablers at the frontlines, i.e. the counsellors, under-staffed, over-worked and under-paid.

Last but not the least, parents need to be reminded that divorce breaks a marriage not parenthood. The disputing parents may not be friends but they certainly have to learn to be civil, collegial co-parents for the sake of their child.

Concluding thoughts:

Harking back to Gandhiji's talisman, we the authors, would like to suggest a talisman too for every judge, lawyer and disputing parent in question: If they were that child, what would they want be done to them? Would they want to be shunted between two battling households on time-share, have one parent abuse the other or be made a pawn in an adult quarrel? Or would they wish for their parents to empathize and stay as parents even if they could not continue being spouses?

Hence it is necessary that the best interest of the child be the North Star, both in letter and spirit. If the collateral result is restoring the empathy and friendship amongst the disputing spouses, then even better.

Views expressed are personal.

The authors would like to acknowledge Hon'ble Justice Savitri Ratho, Judge, Orissa High Court, for inspiring parts of this piece through some of her public interventions.

About the authors: The first author is the Chief Minister's Chair Professor cum Director of Centre for Child Rights at the National Law University Odisha (NLUO). The second and third authors are currently students of NLUO. The email ids of the authors, are, respectively, swainbiraj@gmail.com, anoushkabahadur9@gmail.com and pallavk887@gmail.com