Contemplating over the viability of adopting the concept of shared parenting in India, the Law Commission of India has released a “Consultation Paper on Adopting a Shared Parentage System in India”. The paper puts down 12 questions for consideration with regard to the concept of shared parenting and invited suggestions and comments.
The paper notes, “The idea of shared parenting is still new to Indian custody jurisprudence. While the old principle of the father as the natural guardian has been laid to rest, in its place the best interest of the child principle is applied to custody disputes.”
Several countries have adopted the “shared parentage system”, in contrast to sole custody arrangement to settle child custody disputes after divorce. The trend has largely been attributed to the change in familial roles, with male care takers taking on more child rearing responsibilities, as also giving importance to involvement of both parents in the process.
All these considerations are balanced against the “best interest of the child standard”. This standard has been incorporated in the Convention on the Rights of the Child. According to the United Nations Human Rights Commission, the “best interests of the child” is a proxy for the “well-being of a child” based on a variety of circumstances laid out by the Convention.
The Commission considered several researches based on the adjustment and performance of children in joint-custody versus sole-custody arrangements. It noted that sometimes these studies fail to consider the fact that the best interest standard is conceived of as a case by case application and not a categorical assumption for either such arrangement.
Discussing the judicial attitude in India towards the same, the paper noted, “At present, in judicial practice, there is neither a presumption that father is the natural guardian nor a presumption that mother is biologically better equipped to care for the minor. The judicial approach on child custody has evolved to such a level, that the context is favorable to take the discussion to the logical next step, which is the idea of shared parenting.”
On the international front, it elaborated on the concept of “joint legal custody” and “joint physical custody”, as prevalent in the United States.
It noted that Australia has a presumption of shared equal parental responsibility when devising parenting orders after divorce. Australia allows for expansive and detailed parenting plans that can deal with a wide variety of subjects, such as, the communication a child is to have with another person or other persons, the process to be used for resolving disputes about the terms or operation of the plan. Again, the “best interest of the child” is the paramount consideration. However, Australian family courts rarely award joint physical custody in post-divorce arrangements.
Family courts in the United Kingdom take into account several factors before awarding joint physical custody: welfare principle, the no-delay principle and the no-order principle.
In South Africa, family courts are reluctant to award sole custody to either parent. Such an exclusive arrangement is usually resorted to only in the event that one of the parents is unfit for parenting or abused the child.
Taking note of the existing provisions under The Guardians and Wards Act, 1890, and Hindu Minority and Guardianship Act, it stated, “It is evident both from the scheme of the legislations and the decisions that have been rendered on the issue of fitness of a parent to be the guardian, that guardianship is a matter to be entrusted to either one of the parents or any other kin of the minor. It is assumed that guardianship has to vest with either one of the contesting parties and suitability is determined in a comparative manner. This foundation and approach has ignored the idea that welfare of the child could also result from the cumulative association of both the parents and not either one of them alone, howsoever best suited any one of them can be in the given circumstances.”
The 12 questions have been left for consideration with regard to the re-shaping these two legislations. The comments/suggestions can be sent in English or Hindu to the Member Secretary, Law Commission of India, Hindustan Times House, 14th Floor, Kasturba Gandhi Marg, New Delhi-110 001, in person, by post or by e-mail at email@example.com within 4 weeks.
Read the Paper here.