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 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 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. Thechild
custody and child access related laws are outdated (Guardians and Wards Act is a british era act dating back to
1890 and has not been reformed to be relevant in current times).
Government of India needs to execute critical legal reforms on asap basis to stop parental alienation and this
abuse of children.
Some of the suggested reforms are as below:
1. 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.
2. Honorable 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:
a) Family court judges, while giving decisions on child visitation & custody cases should strongly support &
ensure child gets love and care from both parents, joint custody/ shared parenting and where-ever
possible uniting husband and wife for the sake of their child and request them to build a prosperous
family life for their children and themselves
b) FC judges should respect and uphold the tenets of
the constitution of india related to fundamental rights of the child and both
c) Unless there are exceptions related to non custodial parent’s moral character/ mental issues (with strong evidence over a period) or 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.
d) 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.
e) Daily virtual visitation (over video calls) of atleast 30 mins and physical visitation of atleast 20 hrs over weekends/ week should be made default/ standard for non custodial parent unless exceptions.
f) If custodial parent disobeys/ flouts visitation orders (virtual or physical), strict warning should be given by court and if still the disobeyance continues, punishment that may even include change of child custody or a fine of 10000 to few lacs should be awarded to custodial parent
3. All Judicial academies across the country should conduct atleast 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/ patchup 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.
4. Child access rights should not be dependent on maintenance paid. Natural guardian/ biological parent should have access.
5. 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.
6. 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.
7. 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
8. All child related case proceedings/ hearings should be recorded.