When married couples file a divorce petition in family court. After getting a divorce their is an issue regarding child custody arise, that who is going to be a custodial parent and non-custodial parent. A custodial parent is a person who gets custody of the child or says with whom the child is going to live with and on the other hand non-custodial parent is a parent who doesn’t get a custody of a child or say he/she has a right to contact with his/her child and can visit during weekends or according to the rules/agreement between both the parents.
Visitation is a right of the non-custodial parent. It is a privilege for them rather than an automatic granted right. This right can only be decided by both of the parties mutually or by the court. Visitation is a right in which a non-custodial parent has the right to see/meet his child in a week, on weekends and on special occasions, etc. it will be scheduled by courts or mutually by parties.
As we know after divorce mostly the custody of minors (boy below the age of 5 yrs. And girl below the age of 8 yrs.) will be granted to the mother as they know how to take care of them and in case of custody of a major child, it is on the description of child and court to whom they grant the custody. During the custody of major child court will ask the child to whom they are comfortable. When a custody granted to a mother or father it is and the custodial parent is a well-settled person in a society then it is on the description of the non-custodial parent whether they want to give support payment for their child or not. But where a custodial parent like in the case of minor if a mother of the child is not well settled to take care of her child financially then it is a responsibility of father to give support money to her for his child welfare.
Child welfare support responsibility and visitation are different concepts. Under child support responsibility one has to pay for supporting a child financially and under visitation it is a right for a non-custodial parent to meet or visit his child at his place or her mother’s place. But if contact of non-custodial parent with child is harmful physically or emotionally then the non-custodial parent will not be allowed to visit. Court will see different measures like the nature of a non-custodial parent if he is an aggressive kind of person then the court will discard him to see his child,etc.
There are two types of visitations:-
1. REASONABLE VISITATION
Where a non-custodial parent gets an opportunity to visit his child with the help of a mutually signed agreement between both the parents or when the court grants his visitation right. There is a schedule decided by parents or court to visit the child.
Schedule may include:-
a. Visitation of a non-custodial parent on alternative weekends for 3 days or more;
b. Visitation of a non-custodial parent in the mid of every week;
c. Visitation of a non-custodial parent on school breaks like summer or winter holidays;
d. Visitation of a non-custodial parent on new year, Diwali, Holi, etc. like festivals or ocassiosns;
e. Visitation of a non-custodial parent mother on mother’s day and father on father’s day;
f. Visitation of non-custodial parent birthdays alternatively;
g. Contact through telephone or e-mails whenever needed;
h. Visitation should be allowed where there is an emergency and the presence of someone is required to take care of the child.
2. SUPERVISED VISITATION
Under this type of visitation whenever the court thinks it is not suitable to grant a regular visitation or say when a court doesn’t feel fit to let the non-custodial parent meet is a child alone but it is essential for him and child to visit eac other than the court will grant supervised visitation under which a non-custodial parent will supervise by officials or officers appointed by court and under the supervision of mother to visit his child.
Supervised visitation’s time and location will be decided by the court and it will be granted under such conditions where:-
I. A non-custodial parent can be violent and can harm the child physically or abuse the child.
II. Where a non-custodial parent can harm a child emotionally by their verbal words or action which can result in the child’s depression or mental illness.
III. Where a non-custodial parent can result in the mental illness of a child. Some parents do fear or say use many types of drugs to harm the child.
IV. Where a non-custodial parent can harm the child sexually.
V. Where a non-custodial parent can result in child abduction. If there is a harm of kidnapping or abduction on the part of a non-custodial parent then court can opt for supervised visitation.
There will be some cases where the custody will be interfered with by a non-custodial parent like refusing to return the child. There are some circumstances where a non-custodial parent refuses to return the child for threatening the other parent or may be in the affection of love with the child they don’t want to return the child, here court interfere in the matter and ordered to return the child if the non-custodial parent fails to prove the reason for not returning the child and which will also be resulted in cancellation or loss of visitation right. But where a non-custodial parent is able to give a justified reason for not returning the child then the court can modify the custody like, my be he doesn’t feel good about the welfare of a child on mother’s (custodial parent) home.
Custody can be modified at any stage or at any time because the court will always take the welfare of a child and the best interest of a child into consideration while deciding the case of custody of a child.
Visitation right can be lost because of your behaviour towards the child. Most reasons where a non-custodial parent becomes violent or aggressive with the child, where a non-custodial parent try to harm the child physically, where a non-custodial parent try to harm the child emotionally, where a non-custodial parent is in result of mentally illness of the child, where a non-custodial parent sexually miss behave with child, where a non-custodial parent try to abduct or kidnapped the child. All of the above-stated reason will also be result in a further conviction under IPC, POCSO,etc.
Now you may have question what if custodial parent move to different country?
Whenever the custodial parent is moving abroad with the child he/she should always inform the non-custodial parent. And mostly the custodial parent when they move to a different country always appeal for revoke the visitation right of a non-custodial parent. Their court will decide the matter in the best interest of the child and their welfare.
There was a case of 2007, where a couple get married in the year 1998 and after the child born in 2000, they file for mutual divorce after getting divorced the mother gets custody and now mother wants to shift in abroad with her mother and her child. Mother is getting a good opportunity in foreign which will be good for both mother and the child. The mother wants to revoke the right of the father to visit the child because she is going abroad. In the said case Trail Court allows a mother to shift abroad with a condition that she has to bring her child to India once for the visitation right of the father. Then father appeals to High Court for the custody of the child in his favour and to modify the custody, after which the High Court asked the child that with whom you want to stay in India with father or abroad with mother, a child was clear with his view that he wants to stay with his mother in abroad and court allow the mother to take her child to abroad and dissmissed the appeal of the father. Then the father of the child appeals to Supreme Court against the order of the High Court. Supreme Court then again asked the child about the question that where and with whom he wants to reside, a child was clear with his point to stay with his mother abroad and Supreme Court states that whenever the question of the custody of a child has been arising the only thing keep in the eye is the best interest of the child and child welfare. Supreme court states that if the right of visitation is granted and stop the mother to move abroad where she is getting high opportunity good job which can result in a better future for the mother and the child then it will hinder the best interest motive for a child, a mother will lose the opportunity to give the best future to the child. Hence, the appeal filed by the father dismissed with order that before heading abroad mother must file an undertaking to the satisfaction of the trial court within 4 weeks with details like the address where they going to reside, contact no., a place which will be helpful for the father to contact his child.
So, here are some details about visitation and issues faced by non-custodial parents during visitation or custody of the child.
Author: HITAKSHI MAGGO, FAIRFIELD INSTITUTE OF MANAGEMENT AND TECHNOLOGY