Child custody disputes: Whose interest is paramount?

4 July 2010

Disputes between spouses for the custody of their child is taking the form of a battle fought with vengeance inside and outside the court rooms.


In the midst of groups of fathers, mothers, lawyers and the judges — talking, screaming, shouting, listening and ordering — the children are seen hearing about their ‘paramount interest’ being discussed at length.

Someday, these children will look back and question what was their ‘paramount interest?’ Was it independent of the interest of the father, mother, lawyers or the judge? Why were they not allowed to enjoy their childhood and left to be unsafe? Was it not interference with their rights in the guise of protection of their ‘paramount interest?’ The troubling answer may make them lose respect for society, including their parents.

Each of the separated parents suffering from ‘parent alienation syndrome’ tries to have exclusive custody of the child, highlighting how dangerous it is for the child to be with the other parent. Children are asked to tell lies, forced to write letters to judges about their unwillingness to go with the other parent, compelled to give their opinions about their choice of a parent, etc. The volition of the children are given more importance than their actual paramount interest.

The parent, having limited custody rights, tries to play the role of an ‘entertainment-provider’ for the child in order to attract the child. The children are compelled to pose for hectic photo and video sessions to collect evidence to be placed before the courts. They are lured by expensive gifts and foreign trips, excellent holidays provided by a parent as against the other with whom they have to stay, study, be disciplined and learn the hard lessons of life. Without giving much thought, the children often express their wish to stay with the ‘entertainment providers.’

Children are treated as joint properties and demand for shared parenting and equal rights is common. The situation is worse when both the parents are busy with their career goals and the children stay with care-takers or grandparents. Grandparents, who develop attachment to the young children, fight for custody through their children. Everyone is focusing on parenting rights — rights of parents, of father, of mother, sentiments of grandparents, duty of a judge, etc — brushing aside ‘the paramount interest of the child.’

The child’s rights over parents begins with its birth. No one, much less a parent, can curtail this right over the other parent. The child has a right not to choose between the parents, not to judge its parents. It has a right to live in its little world full of fun, play, enjoyment, studies and unobstructed growth, unmindful of the mutual dislike and hatred between the parents. No one has a right to trespass and encroach upon their rights. Who can compensate the mother’s sweet kiss, screams, scoldings, warnings or the father’s hugs, kicks, or shouts?

Subjects of dispute

Frequent shuttling of children between the parents under the directions of the court, repeated contempt petitions between the parents alleging ‘disobedience’ instill a sense of panic among the children who do understand that they are made the subjects of dispute between their parents, and that the fight was against each other through them.

Only in the absence of dispute between the parents can the child stay happily with one of the parents, understanding it as a family arrangement. Each disputing parent fails to understand the indispensable need of the contribution of the other for the welfare of the child.

They forget that they are the only ones standing together who can safeguard the paramount interest of the child. When one of them doubts the bonafide of the other and suspects that the other would not stick to the accepted terms, problems arise. It is in this scenario, that the role of courts becomes indispensable in giving a binding force for the arrangements regarding the custody rights between the disputing parents.

The legislature in its wisdom has left the solution uncovered in the statutes. Even the courts find it difficult to choose between the equally capable and responsible parents of the unfortunate children. Any order passed by the court irritates either of the parents. Judges are often called ‘pro-women’ or ‘anti-women’ or those addressing to please the gallery.

It is high time the parents move from their interest towards the paramount interest of the child. All that a parent has to consider without prejudice is “is the company of the other parent dangerous to my child?” Shared parenting is a misnomer. Parenting cannot be shared with any one much less with the other parent. Each parent plays a unique role in the life of a child.

Ultimately, both the parents need to understand that notwithstanding their relationship as husband and wife no longer being cordial or having come to an end, they continue to be a father and a mother for the child and no statute can change that status.