Print Edition: March 2013
Veena Gowda, Women’s Rights Lawyer
If divorce is inevitable, bitter battles cannot be the option to settle issues of child
custody and access. Custody of a child, when parents divorce, only implies as
to who the child will physically reside with. Both parents continue to be
natural guardians.
The custodial parent will be the primary caretaker responsible for the emotional,
medical and educational needs of the child and the non-custodial parent who
does not lose the rights over the child will have the right of access.
Over the years, there is a shift from custody and access being the ‘right of a
parent’ to being the ‘right of a child’. The non-negotiable principle on which
custody is decided is the ‘best interest and welfare of the child’. Who will best serve the child’s emotional,
educational, social and medical needs is the only criteria.
The earning capacity of the parent does not determine custody but the capacity
to provide a safe and secure environment does. A non-earning mother will not be
disqualified but the earning father will be asked to provide child support.
While the mother is the preferred custodial parent when the child is of a
tender age, once the child attains a discernible age, his/her wishes will be
considered while deciding the issue of custody and access .
The belief that once a child attains a particular age, the father shall have
uncontested right is misplaced and wrong.
This principle of best interest of the child ought to also apply in case of
mutual divorce. Who will the child stay with, what will be the terms of access,
how will the child’s living and educational costs be met?
Parties have larger negotiating space where more innovative terms can be
evolved; like joint custody, a concept that does not exist in statutes but has
evolved while negotiating divorce settlements. In this, both parents will have
legal custody but one will have the physical custody and be the primary
caretaker.
Access to the non-custodial parent could be weekly, fortnightly, daily or
monthly. It could be just day access or overnight access with gradual increase
including weekend and/or vacation, access on special days, etc. It could also
be free access with no fixed schedule, but as per the parents and the child’s
convenience, could include the non-custodial parent’s right to school events,
etc.
One ought to remember that as a parent every ‘right’ you exercise ought to also
have a corresponding ‘duty’ towards the child. As important as the right to
custody or access is, so is the duty to provide for and maintain the child. The
parties can agree to a one-time lump-sum amount or a staggered payment either
at different stages of the child’s educational life or a monthly amount with
incremental increase. Whatever it be, it ought to be sufficient for the
day-to-day expenses of the child to maintain or improve the standard of
living.
Property in the name of the child with either parent as the guardian can also
be given as a lump sum with the rent from the property used for monthly
maintenance expenses. Investments which could yield a larger return at a later
point such as insurance and educational policies could also be factored in.
Provisions for unforeseen situations such as medical emergency should also be
considered.
A misgiving that the money set aside for the child could be misused by the
custodial parent or that the non-custodial parent could abuse the terms of
access alone should not prevent an amicable settlement.
The court is parens patriae, the ultimate guardian of the child and her/his
property and so minor’s property/income is amply protected by law and terms of
custody, access and child support can be altered in changed circumstances
and/or in the interest of the child. It has to be ‘the best interest of the
child’.
Veena Gowda
Women’s Rights Lawyer