The Law Commission of India on Friday recommended sweeping changes in various legislations to introduce a “secular” and codified mechanism for shared parenting and joint custody of a child to the divorcing parents.
Seeking to accord legal status of natural guardian jointly to both the parents, the Commission said it was time shared parenting should be tried in India under supervision of a family court, which would help divorcing or divorced parents to prepare a “parenting plan”, clearly defining role and responsibility of each of the parents.
A parenting plan would be approved by the court to have legal implications. Shared parenting systems already exist the US, the UK, Australia, South Africa and the Netherlands.
The Commission, headed by chairman Justice A P Shah, forwarded its 257th report to the Union Law Minister Sadananda Gowda, while favouring amendments in the Hindu Minority and Guardianship Act and the Guardians and Wards Act.
Asserting that the “best interest of the child” has to be the standard for determining question of custody, the Commission said courts should consider components of shared custody such as clear determinants of the best interest of the child standard, role of judges and mediators and parenting plans before passing a custody order.
“These must be laid down in the law, in order for shared custody to be a viable option that facilitates divorcing parents to mutually agree on the preferred custodial arrangement, without compromising on the welfare of the child,” it said.
The report said the law panel was not in favour of the law placing a presumption in favour of joint custody even as it recommends “shared and equal guardianship for both parents”. “Joint custody must be provided as an option that a decision-maker can award” in the child’s welfare, it said.
Underlining some of the laws recognised only father as natural guardian, the Commission recommended “this superiority of one parent over the other should be removed, and that both the mother and the father should be regarded, simultaneously, as the natural guardians of a minor” under all relevant laws.
For issuing a custody order of a child of 14 years and above, the it said, a court must take into consideration the wishes of the child since the child can be considered old enough to form an intelligent preference. This practice should also be followed where such a minor has left or been removed from the custody of his or her guardian.
A child’s grandparents can also apply for a grandparenting time order under the amended provisions.
The panel cited personal laws like the Indian Divorce Act, the Parsi Marriage and Divorce Act, and the Hindu Marriage Act, stating these references were being made “to clarify that recommendations are intended to be secular, and applicable to all persons, regardless of the personal laws they may be governed by”.
The panel advocated for inserting a chapter in the principal Act to deal with custody, child support and visitation issues.
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