When The Notion Of Equal Parenting Doesn't Happen
Indeed Honorable Family courts in India ought to be specific with their orders
with respect to interim child custody.
It is fact that while granting interim custody of minor child either to mother
or father of the child, the Court obviously has to choose between Legal Custody
or Physical one, depending upon the facts and circumstance of the case and more
importantly such order shall protect the interest of the child and her/his
The law has differentiated these two concepts:
- A Legal Custody and another
- the Physical custody of child as under:
Legal custody of minor Child:(a) There are cases where the couple has multiple allegations against each
other due to incompatibilities between them and further abuse. Due to this
matrimonial discord they never take single stand in securing the welfare of
their minor children and in protecting child's best interests.
(b) In other case, one parent resides abroad or far away from the child due
to his/her professional duties, not much involved in minor child's care as
the other parent do and of course with few other reasons.
In this kind of cases, the court consider the welfare and best interest of
minor child and grants interim custody of child to his/her mother or father,
deemed to be a Legal custody, where such custodial parent has every right in
upbringing his/her child which includes taking exclusive decisions, right
from the child's education to child's necessary medical treatments and other
activities which are useful for the welfare of the child physically and
psychologically. In this case there cats no duty burden on the Custodial
Parent to inform the non-custodial parent with regards to every welfare
measure he/she taken.
Physical Custody of minor child:On the other hand we have this concept of physical custody. This is very
common one and most of the interim orders w.r.t. interim custody of child
are of the court are of this kind. Here the family court will decide the
aspects of responsibilities towards the children has to be taken care.
Here the Custodial parent doesn't have any right of taking exclusive decisions
on child's life, like sending abroad, joining the child to the schools of
his/her wish and all kind of major decisions including child's medication. It is
the duty burden of the custodial parent to consult the non-custodial parent in
case of such decision has to be taken and also inform the court by making a
motion for permission, where the non-custodial parent will be heard of his/her
objections if any.
The custodial parent granted physical custody has every right of decision in
securing the child's day to day affair, with respect to child's well-being.
unfortunately, whenever the courts failed in being specific in its order with
respect to the nature of interim orders (Legal or Physical), the custodial
parents are taking every advantage of the situation, thinking the custody they
were granted to be a Legal one and the non-custodial parent is left with no
choice, than to adjust themselves with the visitation of the child orders they
were been granted.
This is an unfortunate scenario in child custody battles, where the children do
not enjoy equal access to their parents getting equal love and affection.
Written By: V Aditya Santosh Kumar