Subject: Whether a petition for Joint Custody is maintainable in court under existing GW Act 1890 and the Hindu Minority and Guardianship Act, 1956.
1. In the present Scenario when a custody battle began between Husband and Wife the Child actually suffers. the conflict situation damage child's over-all development, it may be physical or psychological. Because due to tender age a child can not speak for itself. often the opinion of a child is controlled by the ego custodian parent.
2. The above mentioned two Act says that THE WELFARE OF CHILD IS THE PARAMOUNT. Court is the custodian for enforcement of law. The paramount welfare of child is incomplete if the child is deprived of/ not getting equal and quality access to both parents. So shared parentage is must and Compulsory to enforce child welfare in most of the cases.
3. the terms 'joint' or 'shared' do not mean giving physical custody to parents with 'mechanical' equality, and it is here that judicial pragmatism and creativity is going to play a huge role in developing this concept further. such arrangements followed in US, Canada, Australia, UK and many other countries.
4. However the Guardians and Wards, Act, 1890 and the Hindu Minority and Guardianship Act, 1956. Both the acts are silent on joint custody or shared parentage for children of divorcing/ separated/ hostile parents.
5. At present, in judicial practice, there is neither a presumption that father is the natural guardian nor a presumption that mother is biologically better equipped to care for the minor.
6. In US there are generally two forms of joint custody — joint legal custody and joint physical custody. Joint legal custody "means both parents have equal rights and responsibilities for major decisions concerning the child, including the child's education, health care...." Joint physical custody "means that physical custody is shared by the parents in such a way as to assure the child of substantially equal time and contact with both parents".
very soon i am going to apply for child custody and visitation. it is for the last two years my in-laws and wife not allowing me to meet my daughter who is now 4 Yrs 06 moths. due to my service commitment i was staying 2500 km away from my native place. now i have moved to my native and my in-laws house is also in same area. though presently a lot of stress and strain between both of US ( 498A, 125 CrPC- i am regularly paying int maintenance) but i am practically in a opinion that our child should have access to both parents. i am not in favor of solo custody. i am here not to win a game rather to ensure the liberty of life to my child. so can my petition be drafted and presented before Hon Court in such a manner where joint / shared custody is to be deciding factor. is such move will give a fair image of myself in front of judge ? my advocate is not agree with me and want to proceed for solo custody (may be due to technicality of above mentioned law).