Navigating the Best Interests of the Child: Comparison of child custody laws with other countries and Grandparents visitation

Ipshita Ghosh,

Kalinga University, Raipur

Introduction

Divorce means ending the marriage legally. In the 21st century cases of divorce are on the rise in the report published by divorce.com, the average rate in the world is 1.8 per 1000 people in 2023[[i]].The main reason for divorce nowadays is the entry of women into the working sector which makes them financially independent leaving their unhappy marriages[[ii]].The cause of divorce can be anything, but the ones who suffer from the breaking of marriage are children and family. The family members get separated from each other which JJleads to a loss of confidence in oneself, families face financial issues and emotional stress like stress and anxiety and sometimes it leads to adjustment problems. After the separation or divorce, the most sufferers are the children of the couples, they are the ones who are closely associated with the couples and have to face the effects. Some of the consequences that can be seen in children are anger, anxiety, and a type of frustration in their behavior. After the divorce, another challenge arises, which is the custody of the child, often leading to complex legal and emotional disputes. For the custody of children, the parents sometimes fight which leads to several issues in them due to the reason that they are not satisfied with the decision of the court or the enforcement of judgment. While deciding who will have custody of the children the interest of the child should be considered while deciding this case by the court, this will help children grow in their lives without any problems, being emotionally fit and living a peaceful life. After the separation or divorce of parents, the most sufferers after the child are often the grandparents, as they may struggle with limited access to their grandchild and the emotional toll of the family separation. For grandparents after their retirement, their only way other than anything is to spend some precious time with their grandchildren but when separation happens in the family this affects them the most this may lead to suffering from major health issues like anxiety, depression blood pressure, etc problems.

Objective of the study

1. Comparing child custody laws of India with international standards

2. Examine whether grandparents have the right to visit their grandchildren post-divorce.

3. Explore if children can influence custody decisions by expressing their preferences.

Significance of the research

In today's time parents and couples are not getting enough time to communicate with each other which leads to miscommunication, fights, and other issues between them, this can sometimes give rise to separation or divorce between them. Then if the couples have children comes the question of child custody. In this research the question of considering the preference of the children while deciding the custody is seen, whether it is important to ponder or not. It is crucial to have flexible custody laws so that they can be changed according to the time, the research paper will contain an analysis of custody laws of different countries so that there is a loophole in the laws and some changes are to be made so that problem which is faced by people during the time of custody and will lead to taking out best interest for the child. Spending time with grandparents is one of the most beautiful periods in one’s life, but when parents are separated this precious time ends, now both grandparents and children won't be able to live together.   On paper grandparents have the right to visit their grandchildren after the parental split and if there are what are they? So this paper will explore various factors and provide recommendations for improvement.

Literature Review

There are plenty of articles, blogs, and resources that discuss the child custody law. However, this paper only discusses the visitation rights of grandparents and compares child custody laws in India with the laws of another. Another paper was published by Poornima Gupta on the topic “Custody of the child in India –issues and response”[[iii]] Another research published by Sakshi Kumar on the topic “A study on custody of child and visitation rights under personal law[[iv]].    

Research Mythology

The researcher has investigated various child custody laws of different countries to find out the objective of the paper. The researcher has further investigated various case laws, acts, statutes, reports, and data to find the objective of the research and get to the conclusion.

HYPOTHSIS

·Hypothesis 1: Domestic child custody laws in India are less compatible with international standards compared to developed countries like the United States, Canada, and Sweden. This incompatibility is due to differences in procedural practices, emphasis on the child’s opinion, and the use of alternative dispute resolution methods.

·Hypothesis 2: In India, despite the lack of explicit legal provisions, recent judicial rulings recognize the right of grandparents to maintain contact with their grandchildren post-divorce, aligning with a growing understanding of the importance of maintaining intergenerational relationships for the child’s well-being.

Hypothesis 3: While Indian courts do consider the child’s opinion in custody decisions, the implementation is inconsistent and less robust compared to jurisdictions like Canada and Sweden, where the child’s wishes are given more weight and are integrated into the decision-making process more effectively.

WHAT IS CHILD CUSTODY ?

Custody means the person/parent who has the right to raise his/her minor children in legal words. After divorce or separation, the duty of raising a child also gets divided between parents like father takes care of the financial aspect while the mother raises the children but sometimes the mother earns as well as raises the children. There are various types of child custody Physical Custody is where children one of the parents lives and makes all the major decisions daily like which places he/she will be going to visit on vacation, what food the child will consume, and taking a decision on daily basic whereas legal custody means which parent will happen the authority to take major decision of life like which college he/she will be studying in or which hospital he/she will be visiting for appendix operations.[[v]]

STATUTES AND ACT IN INDIA & DEVELOPED COUNTRY

Custody which means who will take care of the minor children comma and provide with all the necessities needed to lead a life.

So here are the Acts and statutes established which look into the matters of child custody in India which are as follows:-

1. Section 26 of Hindu Marriage Act 1955- this section decides the custody of a child where both the parents belong to the Hindu religion. This section deals with the maintenance comma education comma health and well and well-being of the child. The court can give its judgment by looking into facts and situation comma, it can also suggest these amendments and can pass order[[vi]].

2. Section 38 of the Special Marriage act, this section deals with the provision of custody where the parents are from different faiths.[[vii]]

3. Section 41 of the Divorce Act of 1869, this section deals with the matter of custody where the parent belongs Christian faith.[[viii]]

4. Gardian and Ward Act 1890, this act provides the provision for deciding the custody of the child and provides for the welfare of children in various aspects. This act applies to all children whose parents follow different faiths or might not be covered by personal laws present in India are governed by this act.[[ix]]

5. Apart from these acts Juvenile Justice Act of 2015 has formed a Child welfare committee under it which looks into the matter of child custody’s. Family courts also play a big role in deciding custody of the child in the most appropriate manner where the interests of a child are seen first while delivering the judgment. All these laws and acts are only applicable in India.

Laws related to child custody in other countries are as follows :-

1. The United States Of America has a law called the Uniform Child Custody Jurisdiction and Enforcement Act, this act gives the guidelines for deciding custody of children in the US. The act helps in the implementation of custody and visitation laws from one province to other provinces. This act has provisions that state which province of the country has the power to start with the procedure for child custody, usually it is the province where the child is settled or living. This act mainly is made to solve the conflict which starts while deciding the custody of the child to make environment liveable for children and family[[x]].

2. In Canada family law related to child custody, divorce, and separation focuses more on resolving the issues through various methods like child and parent counseling, mediation process, and discussion with psychologists. The process of child custody includes telling the procedure, implications, and all things that will happen after the decision of the court and also suggesting various plans to both parents and children before they make the decision. The child has own will to which parents he/she wants to stay, the court will give the final decision after interpreting the situation concerning the will of the child but at the last the best interest of the child be seen.

3. Sweden is a Scandinavian country that tops the happiness index list every year. The state tries to reduce the breaking of marriage by taking initiatives like parental leave, and subsidies on air travel with family and others, so that parents can spend time with the children which will make their bond stronger and will help in reducing the rate of breaking of marriages. The laws here are made in a way that protects the interests of the child and the family. The court here tries using the mediation process first and trying a different method, The will of the child matters irrespective of the age of the child, the court will examine the circumstances and then he/she will give the decision that affects the child in a most positive way through which child can grow happily in his/her life.

4. The Convention on Child Rights which was proposed by the United Nations in 1989 talked about the rights of children from different perspectives[[xi]]. It has also provided the given a guide while granting custody to a parent. Some of the things that should be kept in mind while giving custody decisions by the court are Best Interests of the child be seen first, there should be consultants with psychologists, and health experts to analyze the mental condition of both parents and the child, the guideline also suggests using different ways like mediation, negotiation, and other methods before directing going to the court for such matter. It has also talked about parental responsibilities it has clearly defined the responsibilities of both parents and both parents have the right to visit the child after deciding the custody of the child. There is also a provision of considers the view of the child must be most important while deciding the case.

Comparisons of laws of child custody in India with laws of child custody in other countries

If the compare the other countries' laws with our Indian law, the common thing which India, as well as other countries, follows is considering the best interest of the child, using joint custody in deciding custody is preferred the most, stating about parental responsibilities of the parents while giving the final judgment and considering the view of both the parent.

Things that are different in India are, in India, the parents don't mostly go to mediation, negotiation, or dispute resolution methods which can be done outside of the court, they believe only the court can deliver the best judgment according to them, the court in India don't consider the view of the child only the view if the older child is considering, using of medical experts like psychologists, counseling, etc during the process, the awareness related to child custody are very less, people in India consider this as bad topic to be talked. In other countries, the other parents and grandparents have the right to visit their grandchildren and if doesn’t go with the rule there are several punishments to it but there are no provisions where the visitation rule is implemented and has the punishment. If we see the implementation of the United Convention on Child Rights, India is one of the signatures of this convention. India has tried to incorporate various provisions but somehow it lacks the proper implementation of this act, the reason might be people of India are not aware of the convention, the judges are not been trained enough, and the provision of the convention has not been directly implemented with municipal laws.

VIEWS OF CHILDREN SHOULD BE CONSIDERED BY JUDGES DURING DECIDING THE CUSTODY OF CHILDREN.

A child goes through worse conditions during the separation of parents. They suffer from anxiety, stress, and fear of separation from their parents and go through many other problems, dilemmas, confusion &, etc things while the process of separation is going on. The parents of the child are most considered about the issue of custody, both parents say that the child should go to a parent who has more resources providing them with all the necessities of life, while forgetting the opinion of the child. During the court proceeding also parents have so many expectations from the court and expect that the court will deliver judgment according to their expectations and not with the opinion of the child. Parents believe that the child is still immature and incapable of understanding the situation, so parents do not always give preference to the child's opinion.

In India, section 17 of the Guardian And Wards Act of 1890, says that a child above  9 years has opinions or views while deciding[[xii]]. This thing is not mostly considered by the court all the time , although most time the court tries to deliver the judgment which considered in the best interest of the child. Children nowadays are committing crimes like robbery, killing, using foul language, damaging public property in various ways, rashly driving on the roads, etc things, the reason might be socio-economic conditions, mental stress, etc reason. The main point here is that when a child can do a serious crime then why he/she can have a view and opinion in a custody matter? Now a new crime law called BNS has come into existence it has also new provisions and punishment for crimes committed by minors. Children have their perspective they know which parents take care of them, all the other things are aware to them, even research has proven that children have six senses and can make some of the important decisions in their lives. So with these it any be concluded that children have their view and it should be considered the most rather than considering the will of parents. If we see laws of another county custody law and compare them, it has been seen that the opinion of the child is considered first and the best of the child is considered first, and then all things come, even the happiest country in the world has no age limit set for choosing his/her parents in custody cases.

RIGHTS OF GRANDPARENTS TO MEET THEIR GRANDCHILDREN AFTER DIVORCE

Grandparents play an important role in children in shaping their life. Children learn values, customs, love, to understand society, to see the world through their eyes, and knowledge on various themes of life from their grandparents. Without this child will not learn the values that are given to the grandparents. Parents can for sure give all the love, and knowledge and provide them with all the necessities of life but grandparents are important as are parents in life. After separation or divorce from parents, grandparents are often seen struggling to meet with their grandchildren. The reason behind this is fear in parents that grandparents might manipulate the minds of children to take them home or lose the child, it can be due to grandparents creating hatred in the minds of children against the parents, etc reasons. Due to such things, grandparents are often seen facing various mental health issues like depression, anxiety, stress, etc issues. In India, no law states that grandparents can meet with grandchildren after the separation of parents, but some acts cover it shortly. But with the development of the legal system, some recent judgments of courts have given the judgment which established that grandparents have the right to visit their grandparents after the separation of parents. So some of the cases are as follows which say grandparents have to meet with a grandchild.

1. Smt. Kirti v. State of Uttar Pradesh (2004) –In this case, the mother of the children was not allowed to meet the children with their grandmother because the mother thought that the lives of the children would be disrupted after meeting with their grandmother. so in this case the Allahabad High Court stated that grandparents have the right to visit and meet with their grandparents after the separation of parents, it also stated that custody of children can be given to grandparents if their parents die or are not willing to accept the custody of children. The court has stated that grandparents are important parts of children's lives because through grandparents children many things.[[xiii]]

2. Rajesh v. State of Tamil Nadu (2013) –In this Rajesh, the grandfather of children failed a case in which his daughter-in-law was not allowed to meet with his grandchild because he might provoke her children and would create hatred toward her. So Madras High Court stated that it is the right of grandparents to meet with their grandchildren even if the parent is not allowed.[[xiv]]

3. Smt. Shyamali v. State of West Bengal (2015) –In this case, the mother said to her mother-in-law that she didn’t have any legal right to meet with her grandchild. In this case, the High Court of Calcutta stated that grandparents have the legal right to visit his/her grandchild even after they are divorced or separated.[[xv]]

4. Syed Irshad Ahmed Zaid v. Shazia Anjum  2023:CGHC:25098-DB)-In this case, the High Court of Chhattisgarh stated that grandparents have the right to maintain a relationship with their grandchildren and have the visitation right even if separated parents deny it.[[xvi]]

The law of developed countries has included various provisions of acts and statutes in the legal framework of their countries in the matter of family law which also governs child custody matters.

• In Australia, section 65C of the Family Law Act of 1975 says that after divorce or separation, the best interest of the child should be considered which includes maintaining the relationship with grandparents or extended family.[[xvii]]

• In New Zealand, section 5 of the Care of Children Act of 2004 this section allows children to maintain relationships with significant people including grandparents after the divorce or separation of the parents.[[xviii]]

• In Sweden Section 15 and Section 16 of Chapter 6 of the Children and Parent code this section allows the court to grant visitation rights to grandparents for well well-being of children and to maintain a good relationship with grandparents as it facilitates a positive effect on children's growth.[[xix]]

• In Austria which is a country in Europe. Section 138 of the Austrian General Civil Code allows the child to maintain a relationship with grandparents and some significantly closed people after the divorce or separation of parents. [[xx]]

From above it is clear that it is important to maintain a relationship between children and grandparents even if the parents are divorced or separated. Not every country has a law for visitation laws but through case law, and theories given by scholars the rules and regulations for the visitations  rights of grandparents are made.

CONCLUSION

It can be concluded that Indian custody law is compatible with the laws of other countries but, there are some issues with it which can be removed through the effective implementation of the international law efficiently which India has signed. By equipping judges in the court with skills for enforcing international law. It can be suggested to use other modes of dispute resolution for deciding child custody, using medical experts, psychologists, and counselors while determining the custody of the child. The child's preferences should be considered and kept in mind during the child's custody. The law for grandparents to visit their grandchild after the family separation should be made.  

REFERENCES

[i] Divorce Rates in the World," Divorce.com, https://divorce.com/blog/divorce-rates-in-the-world/ (accessed August 9, 2024).

[ii] "Common Causes of Divorce," Forbes, https://www.forbes.com/advisor/legal/divorce/common-causes-divorce/ (last visited Aug. 9, 2024).

[iii] . Poornima Gupta, Custody of Child in Indian Law, Burnished Law Journal, https://burnishedlawjournal.in/wp-content/uploads/2021/01/Custody-of-child-in-Indian-law-by-Poornima-Gupta.pdf (last visited Aug. 9, 2024).

[iv] A Study on Custody of Child and Visitation Rights Under Personal Laws in India, AK Legal, https://aklegal.in/a-study-on-custody-of-child-and-visitation-rights-under-personal-laws-in-india/ (last visited Aug. 9, 2024).

[v] ."Hindu Custody," Pink Legal, https://pinklegal.in/topics/marriage-and-divorce/hindu-custody.html (last visited Aug. 9, 2024).

[vi] Hindu Marriage Act, 1955, Act No. 25 of 1955, § 26 (India).

[vii] Special Marriage Act, 1954, Act No. 43 of 1954, § 38 (India).

[viii] Divorce Act, 1869, Act No. 4 of 1869, § 41 (India).

[ix] Guardianship and Ward Act,1890

[x] Uniform Child Custody Jurisdiction and Enforcement Act, (U.L.A.)

[xi] . Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670

[xii] Guardian and Wards Act, 1890, § 17.

[xiii] Smt. Kirti v. State of Uttar Pradesh, (2004) 2 SCC 321 (India).

[xiv] Rajesh v. State of Tamil Nadu, (2013) 5 SCC 586 (India)

[xv] Smt. Shyamali v. State of West Bengal, (2015) 1 SCC 337 (India

[xvi] Syed Irshad Ahmed Zaid v. Shazia Anjum, 2023 CGHC 25098-DB

[xvii] Family Law Act 1975 (Cth) § 65C.

[xviii] Care of Children Act 2004 (NZ) § 5.

[xix] Children and Parents Code (SFS 1949:381) ch. 6, §§ 15-16

[xx] Austrian General Civil Code (ABGB) § 138.