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Vacation’s here, so are child custody wrangles PDF Print E-mail
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Written by Urvi Mahajani   

Right before a long holiday, estranged parents lock horns in court over taking a kid out of the city. Urvi Mahajani finds that the judiciary straddles empathy and the rules of law in such cases

Abdul can’t stop talking about his forthcoming trip abroad. And why not? This is the first time the excited 14-year-old will be travelling outside India. His father, Naeem, has been granted permission by the Bombay high court to take the teenager abroad.

Abdul’s parents divorced when he was barely 11 months old. The child was entrusted in his father’s care; mother Fatima has access rights. Both parents get to share half-a-vacation each with Abdul. This time, Naeem applied to the court to take Abdul to the UK and Europe.

Before every vacation — summer, Diwali or Christmas — the family court and the high court get flooded with applications from non-custody parents to take their children out of the city. The period before this summer vacation, says one advocate, saw an increase of nearly 30% in the number of applications filed before the family court and the high court as compared to the same period last year.

"In case the mother has custody [of the child], the father can file an application for custody rights for the summer or Diwali or Christmas vacation," says lawyer Mustafa Kachwala. "Every parent wants more time with his/her child, especially during vacations."
On rare occasions, however, as in the case of Abdul, parents with custody, too, file applications seeking permission to take their children abroad. That is because even if they have custody, they are not allowed to take the children beyond the city’s limits without the court’s permission. Estranged couples usually go by the terms of the consent form drawn up at the time of separation.

When they fail to see eye to eye on the issue, however, the courts have to step in.

"The court passes orders only in highly contested cases," says advocate Veena Gowda, who handles cases relating to women and children.

In Abdul’s case, Naeem approached the high court through his lawyers Nitin Thakker, Dimple Shah and Tejas Joshi after Fatima refused to sign their son’s passport application form. Fatima’s lawyers, Rizwan Merchant, Swapnil Bali and Sandeep Bali, said the mother was scared that Naeem, an Australian citizen, would take Abdul to Australia instead. Only after a great deal of persuasion and much reassurance did Fatima agree to sign on the dotted line.

Leaving nothing to chance, though, a division bench comprising justice PB Majmudar and justice AV Mohta, also ordered Naeem to submit an undertaking in court that he would bring Abdul back to India after the trip. Besides, the court told the father to submit a photocopy of his passport and that of his son after it was issued.

Taking the high (court) road
When it comes to parents warring over child custody and access rights, the high court tries to take a view sympathetic towards the child. After all, as advocate Rizwan Merchant explains, it is the child who is caught in a tug-of-war between the parents. "It is difficult for a child to decide whom to spend a vacation with. The infighting becomes too painful for children."

Couples usually arrive at a consensus over temporary custody rights. But when things come to a head, the high court has no choice but to lay down hard and fast rules.
Also, while allowing such custody applications, the comfort level between the child and the non-custodian parent is taken into account, says Gowda. "In some cases, counsellors are brought in to resolve the issue amicably."

Fear among custodians of former spouses going AWOL with the child during a vacation fuels most of the infighting. That’s when the court makes it mandatory for the parent undertaking the trip to provide a complete itinerary of the journey and contact details.
Kachwala says, "Since there is a perceived threat that the non-custody parent may flee with the child, courts are cautious about handing over custody. They seek the entire travel itinerary, along with an undertaking from the parent who has applied for temporary custody."

There have been instances, says Gowda, where a court has allowed a parent with custody rights to take the child along when shifting to another country, on condition that the other parent’s rights of access are not abridged. In such cases, a non-custody parent has to obtain a ‘mirror order’ from the country the former spouse is moving to. "In case of a violation, the non-custody parent can ask for action to be taken as per the law in that country," explains Gowda.

Consensus is key
Rajesh’s parents have locked horns in the high court over the father’s application to take him to Malaysia this vacation. Unlike in Abdul’s case, Rajesh’s mother, who has his permanent custody, has not been won over. She, too, fears that Rajesh may not be brought back to India. The father is willing to give an undertaking to be able to have his son all to himself, if only for a few days. "I have my parents and I run my family business here. Why would I leave all that and flee to a foreign country? I can give my son a better future here in India than in some foreign land where I will have to start from scratch," argues the father.

Smriti’s father, who has only access rights to her every alternate weekend and half a vacation, is hoping that he can take her down South soon. His application seeking permission for custody rights to the eight-year-old during the entire summer is also pending in court. Till now, Smriti and her father have spent all of their vacations in and around Mumbai or at his hometown in Ratnagiri.

Considering that the couple had parted ways ‘peacefully’, the father hopes that the terms of his visit will be acceptable to all.
With foreign junkets becoming cheaper, more and more non-custody parents are jumping on the ‘let’s-go-abroad’ bandwagon. “This gives them a sense of satisfaction of having shown a foreign land to their child,” says advocate Paresh Desai.


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