Kerala HC directs family court to follow Calcutta HC’s child custody guidelines

Kochi: Kerala high court has directed family courts in the state to follow, for the time being, the Calcutta HC’s child access and custody guidelines, along with the parenting plan, until the state frames specific rules on the subject.

A bench of Chief Justice Soumen Sen and Justice V M Syam Kumar issued the order on a petition filed by a mother from Thiruvananthapuram seeking custody of her minor child, alleging that her husband had taken away the child in violation of a decree passed by the family court.

During its interaction with the child, HC noted that he clearly expressed his desire to be with his mother, although he had initially stated that he wished to go with his father. The bench observed that the initial statement did not appear to have been made of his own free will. The father, on the other hand, contended that he had taken away the child after the child complained about the mother during his interaction with him. However, HC held that, instead of taking away the child, the father ought to have approached the family court seeking modification of the custody decree.

Expressing serious concern over incidents in which children are treated as pawns in the hands of their parents, HC directed that the child be returned to the mother, who shall continue to be his guardian unless and until the family court’s order is modified. HC further noted that the child access and custody guidelines and parenting plan approved by Calcutta HC may be followed by family courts in Kerala until state-specific rules are framed. The guidelines and parenting plan primarily provide that, while determining the best interests of the child, courts must apply a presumption that it is in the child’s best interests for both parents to have equal shared parental responsibility. The parenting plan also contains detailed provisions relating to interim custody and visitation, as well as directives concerning change of school, transportation, birthday celebrations, education, medical care, and even the child’s surname. Interestingly, Chief Justice Soumen Sen had served as chairman of the rule committee that approved the guidelines for Calcutta HC.

Noting the absence of similar comprehensive guidelines and a parenting plan in Kerala, the court directed the HC registrar general to circulate the guidelines and parenting plan to all district judges, family courts and magistrates in the state exercising jurisdiction over matters relating to child custody, matrimonial disputes.