The Delhi High Court has decided that in custody disputes, a parent who does not have custody of their child should have the right to visit in order to maintain their relationship. The Court stressed that shared parenting should be the usual practice and that decisions regarding custody must prioritize the child’s welfare.
Justice Rajiv Shakdher and Justice Amit Bansal of the Division Bench reviewed an appeal by a father against a Family Court ruling that denied his request for temporary custody of his 8-year-old son during upcoming festivals. The Family Court determined that the child was uncomfortable with the father and that granting temporary custody could cause the child emotional distress.
The Family Court allowed the father to visit his son twice a month in the Children’s Room at Dwarka Courts, supervised by a counselor. The High Court’s Coordinate Bench upheld this decision when the father challenged it.
The father argued that he couldn’t meet his child in the Children’s Room because of the presence of his wife, which he claimed influenced the child’s behavior. He contended that the child’s reluctance to meet him stemmed from their prolonged separation and that granting temporary custody was necessary to address the situation.
The Court reaffirmed that the paramount consideration in custody disputes is the best interests of the child. It emphasized that even a non-custodial parent has the right to visitation to ensure the child maintains contact and receives love and care from both parents.
“It is a settled position of law that in matters of custody of a minor child, the Court has to look into the best interest of the child. The best interest of the child has to be determined taking into account all relevant circumstances. It cannot also be disputed that a minor child requires the love and affection of both his parents. Therefore, even if the custody of the child is with one parent, the other parent must have visitation rights so as to ensure that the child maintains contact with the other parent. Joint parenting is the norm. If the court moves away from this norm, it should clearly articulate its reasons.”
For granting visitation rights, the Court noted that it may require inputs from experts to determine the manner of visitation. It remarked “One of the facets of joint parenting is the grant of visitation rights. At times, the courts need inputs from domain experts. The timing, duration and whether oversight of say a child counsellor is required during visitation by a non-custodial parent, is a call that the court has to take bearing in mind the best interest of the child.”
In this instance, the High Court reviewed a report from the Family Court Counsellor detailing the child’s reluctance and anxiety regarding meetings with the appellant. Despite the counsellor’s efforts, the child did not engage with their father and became emotional.
Seeking additional insight, the High Court consulted another counsellor, whose report highlighted the child’s discomfort with meeting their father and attending court regularly. The report recommended a thorough evaluation of the child spanning 8 to 12 weeks, during which physical or virtual contact between the child and their father should be suspended. It also noted concerns about the appellant’s threatening behavior in response to dissatisfaction with the counsellor’s methods.
Due to the counsellor’s report and keeping in mind the tender age of the child, the Court observed that it would not be in the best interest of the child to grant interim custody to the appellant. It stated “These kinds of interactions can be worthwhile and fruitful only if the child is able to overcome his deep apprehensions in meeting the appellant. In our view, perhaps some more time is required for the child to be comfortable in the presence of his father and interact with him.”
The Court noted that the appellant could visit his son twice a month under the supervision of a counselor at Dwarka Court, as directed by the Family Court and affirmed by the Coordinate Bench.
