September 17, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization
With divorce rates on the rise in India, it’s time our lawmakers gave serious thought to amending the Hindu Minority and Guardianship Act to alleviate the trauma that children of estranged parents undergo during the divorce proceedings and the custodial battle.
I couldn’t have said it better myself. The linked-to article goes to bat for a presumption of shared parenting in India (Hindustan Times, 9/12/18).
At present, courts are empowered to grant a child’s custody to either parent depending on the child’s overall interests and well-being.
So it appears that Indian courts don’t have the authority to order shared parenting, even if they want to. That said though, they’ve done so in the past.
In 2013, the Karnataka High Court ruled in a case that both parents were entitled to get custody and brought into operation an appropriate parenting plan.
That of course is to avoid the trauma to the child of losing one parent to the divorce process.
[G]iven the impact that alienation from either parent can have on the child, choosing between the father and the mother without taking a considered view of the possibilities of joint parenting might work against the child’s interests. Granting parenting rights to just one parent can play havoc with the child’s emotional and psychological well-being. “Non-custodial parents are relegated to the role of mere visitors in their child’s life and are not allowed to fulfil their parenting role, resulting in the destruction of the parent-child relationship,” argues the petition.
Predictably, shared parenting in India has its opponents and, just as predictably, their arguments are as threadbare there as they are here. Indeed, they’re the same arguments.
But the concept of joint parenting also has its critics. Detractors argue that shared parenting is an impractical alternative to granting exclusive custody to one parent, with visitation rights to the other. The child cannot be expected to shuttle between visiting the residences of the two parents.
Of course the reality is that shared parenting has been shown by large volumes of social science to be the best alternative for kids when their parents divorce. Yes, the parents have to be fit and able to parent the child properly, but, since almost all parents are, shared parenting should be the overwhelming rule in India as elsewhere.
The writer’s optimistic that the drift of Indian legislation and court practice may be in that direction.
But the consensus of the judiciary appears to be moving towards shared parenting, albeit gradually.
Let’s hope so.