Divorce is not taboo. Couples who cannot live together must separate rather than bringing up children in hostile and bitter atmosphere at home. However, legal separation takes years in India for waring couples. Should children of separated parents bear the brunt of a long ego battle which either spouse refuses to give up?
Parental alienation is a topic which is often not discussed in media, since most often – nearly 90% of the times – the custody of a minor child is given to the mother, and fathers are merely reduced to non custodial parents who are only reminded of their responsibilities as a provider, but often do not have access or information to where their child is.
Over the years, several Men’s Rights Activists have been demanding ‘Shared Parenting Rights’ so that children do not feel left out or miss out the love of either parents through their upbringing. On the occasion of Parental Alienation Awareness Day (April 25), one such group of separated fathers, wrote a detailed letter to Smriti Irani, Union Minister for Women and Child Development, to express their grievances, thoughts and suggestions in the interest of all such children.
The letter reads as below:
Respected Smriti Irani Ji,
Today 25 Apr is observed as Parental Alienation Awareness Day (PAAD) globally and we would request you/ WCD to urgently look at the serious social issue highlighted below.
In India, lacs of children are separated from one of their parents by another parent, during matrimonial disputes and are used as a weapon to harass and pressurize the non custodial parent (NCP) to meet unjustifiable and unfulfillable demands. Such separated children suffer from the harmful effects of Parental Alienation that have long term damaging impact on their mental and all-round growth and development. Such children’s human rights are getting violated with impunity and courts are not helping ensure child gets love, care and affection from both parents which is mandatory for the utmost welfare of the child. There is no effective help available from government agencies like NCPCR, CWC, NHRC as well.
Non custodial parents have to fight tooth and nail in the courts for several years to get basic visitation orders to see their children and most of the times are not given overnight access without reasonable justification. The frequency and time allotted for physical visitations are inadequate ranging for few hrs a week to few hrs a month and this is a gross violation of human rights of both the child and the non custodial parent.
The child custody and child access related laws GWA (Guardians and Wards Act) is an outdated British era act dating back to 1890 and has not been reformed to be relevant in current times.
5 standard malpractices seen commonly, which constitutes to child abuse:
- Custodial parent puts child in school without informing NCP and many times do not add custodial parent name in admission process. Many times the child is put in a lower standard school than what the NCP can afford
- Custodial parent give various excuses not to show the child to NCP during virtual or physical visitations and brainwashes child against the NCP, further promoting wilful parental alienation- some common dialogs: Your father has left us and does not care for us and do not give us money, he is bad, child writes/ tells during visitation that father is bad, don’t talk to me, etc.
- Custodial parent tries to change identity of the child – not renewing passport, not giving Adhaar card details to NCP, in case of overseas citizen child – lets his passport and OCI card expire, etc.
- Custodial parent leaves the child alone or with maternal grandparents at home and let them grow up without the love, care and affection of both parents. If custodial parent is outside house for 10-12 hrs for job, personal work daily and child hardly gets 2-3 hrs a week or month from NCP, then child is effectively growing without parents, despite having both parents alive
- Custodial parent does not allow the child to go and stay with NCP overnight and does not allow unsupervised/ exclusive access of NCP to the child during visitation hours
We, fathers, plead with folded hands and tears in our eyes to GOI to execute critical legal reforms asap basis to stop parental alienation and this abuse, exploitation, and rights violation of our children.
Some of the suggested reforms are as below:
- Recommendations of Law Commission Report 257 on Shared parenting and Law Commission Report 263 on inter country removal and retention of child should be implemented with further reforms to make suit the current needs of society. International and inter/ intra city/ inter state parental child abduction should be made criminal offence as in USA at both central and state levels
- Honourable Supreme court should release and strongly enforce uniform guidelines related to prevention of child abuse, rights violation and exploitation and prevention of parental alienation during matrimonial disputes, across the country in all lower courts and high courts. This should entail:
- Family court judges, while giving decisions on child visitation custody matters should strongly support ensure child gets love and care from both parents, joint custody/ shared parenting should be primary consideration for the welfare of the child where both parents have 50:50/ equal access and any judge deviating from this principal of shared parenting should give strong reasons
- Child custody cases should be fast tracked and judgement given in 1-2 hearings and where-ever possible judges should try uniting husband and wife for the sake of their child and request them to build a prosperous family life for proper upbringing of their children
- FC judges should respect and uphold the tenets of the constitution of India related to fundamental rights of the child and both parents
- Unless there are exceptions related to non custodial parent’s moral character/ mental issues (with strong evidence over a period) or continuous pattern of anti-welfare behavior towards child, overnight access of child (if bonding with NCP is good/ NCP seems caring affectionate parent) should be provided to non custodial parent in a near 50-50 ratio of parental time
- In every child related case, it should be mandatory to have a child psychologist who will study the child’s behavior and what he/she wants/ needs- some of it is explicit and some is implicit. Judges should take the recommendations of the psychologist for any decisions they make
- Daily virtual visitation (over video calls) of at least 30 mins and physical visitation of at least 20 hrs over weekends/ week should be made default/ standard for non custodial parent unless clear exceptions
- If custodial parent disobeys/ flouts visitation orders (virtual or physical), strict warning should be given by court and if still the defiance continues, punishment that may even include change of child custody or a fine of 10000 to few lacs should be awarded to custodial parent
- All Judicial academies across the country should conduct at least one session every month for judges of family courts on how to handle child cases and pass judgements in the best interest of child, giving the child equal access to both parents and encourage family reunion/ patch up and shared parenting/ joint custody. Judicial academies should be rated/ evaluated on the quality of judgements coming out from judges trained by them in child custody and guardianship cases handled by them.
- Child access rights should not be dependent on maintenance paid. Natural guardian/ biological parent should have access
- Judges across SC, HC, lower courts should be evaluated/ rated/ ranked based on how many child cases they resolved successfully in least possible time. Factors like how many children, they were able to re-unite with both parents, ensure joint custody/ shared parenting plan is created enforced so that children get equal parental time from both parents should determine their performance
- There should be strict code of conduct for advocates to refrain from tutoring their clients to use children as weapon to get favours from non custodial parent. If any advocate is found to have made their client to use children for vested interests, his/ her license should be cancelled/ strong action should be taken
- Judges training academies should work with NGOs focussed on safeguarding child rights emanating from matrimonial disputes, retired judges, psychologists, child rights activists, etc to create good and exhaustive training content and regular programs to train all HC and lower court judges . Judges should give test after every program and the way they use the learnings from each training program should be monitored
- All child related case proceedings/ hearings should be recorded
Will await response from yourself/WCD on actions considered/real legal reforms with timelines, given the urgency of the matter, so as to assure millions of separated children and their non custodial parents will get re-united soon and parents and children will never be separated from each other due to nefarious reasons and that law will protect and help nurture the intimate bond between children and both their parents.
The above letter was also copied to:
- Shri Ravi Shankar Prasad, Ministry of Law & Justice
- Sushri Debasree Chaudhuri, Minister of State (WCD)
- Chairman, NCPCR
- UNICEF India
- A group of separated Non custodial parents fighting in courts for child visitation, overnight access, shared parenting/ custody