The Kerala High Court has directed family courts in the state to adopt, on an interim basis, the child access and custody guidelines along with the parenting plan approved by the Calcutta High Court until the state formulates its own rules on the matter.
A division bench comprising Chief Justice Soumen Sen and Justice V M Syam Kumar issued this directive while hearing a petition filed by a mother from Thiruvananthapuram seeking custody of her minor child. She alleged that her husband had taken away the child in violation of a decree passed by the family court.
During the proceedings, the High Court interacted with the child and noted that he clearly expressed his desire to stay with his mother, though he had initially indicated a preference to go with his father. The bench observed that the initial statement did not appear to have been made voluntarily. The father argued that he had taken the child after the child complained about the mother during an interaction. However, the court held that the father should have approached the family court seeking modification of the custody decree instead of taking the law into his own hands.
Expressing serious concern over incidents where children are treated as pawns by their parents, the High Court directed that the child be returned to the mother, who shall remain the guardian unless and until the family court's order is modified. The court further noted that the child access and custody guidelines and parenting plan approved by the Calcutta High Court 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 the Calcutta High Court. Noting the absence of similar comprehensive guidelines and a parenting plan in Kerala, the court directed the High Court 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 and matrimonial disputes.
