Interim Visitation Schedule Of The Minor During Custodial Litigation
A separation or divorce has many consequences for everyone involved – the individuals, the family and the society at large – but the worst situation is faced by the children involved in such proceedings.
It is common practice that kids become mere pawn pieces in the game of chess while divorce proceedings take place. Parents should be careful of the emotional trauma that children face during the divorce proceedings. In due course, the parents move on in their lives and onto other partners, but kids bear the ordeal of being manipulated and emotionally torn all their lives. During custodial litigation, it has been witnessed over the years that many children involved in divorce or separation proceedings end up suffering from personality problems, conduct disorder, substance abuse, criminal and anti-social traits and major depressive disorders, etc. To avoid this and preserve stability in the child’s life, it is necessary to let them grow up with mutual feelings of affection and respect for both parents.
The Guardian Courts usually fail to appreciate the fact that minors involved in custodial litigation are mostly school-going children who require proper annual visitation schedules. Visitation should not be viewed as a privilege to be exercised at the whim of either parent, but as a responsibility that should be fulfilled by the court where necessary.
The Guardian Court judges are oblivious to the fact that the Guardian & Wards Act 1890 does not set a precise length of time or regularity for granting a visitation schedule for minors. Section 12 of the Guardian & Wards Act 1890 deals with interim custody of the minor. The section is silent on the frequency of visitation or its venue. It is an established view of the higher judiciary that the basic consideration to decide a reasonable schedule of meeting between a minor and his or her non-custodial parent is the “welfare of the minor”. However, even after waiting for months for the first face-to-face meeting with his or her own children, the non-custodial parent usually has extremely limited visitation rights. This visitation schedule is often as little as once a month or in extremely rare cases twice a month for two hours within court premises. Surprisingly, the Guardian Courts of Pakistan have been following this visitation schedule extensively and over time it has become precedent, despite the fact that no provision of either the Guardian & Wards Act 1890 or the West Pakistan Muslim Family Courts Act 1965 supports such a restricted visitation time for non-custodial parents. In the majority of cases, our Guardian/Family judges often get confused with the exercise of jurisdiction. It is pertinent to note that an order for temporary custody is usually passed at a time when no evidence has been produced before the court. Such order must be passed in light of the welfare of the minor as stated under section 12 of the Guardian & Wards Act 1890. The order should not become one passed under section 25 of the Act which determines the rights of the parties with regard to the custody of the minor. The difference between the two provisions must be kept in view as the latter does not deal with interim orders. Reliance is placed upon 2014 CLC 330 Islamabad.
An average custody case lasts for three to five years in the Guardian Courts. During this time the parent-child bond keeps on depleting and often completely breaks after a while. This is largely due to the lack of interaction between the minors and the non-custodial parent. In practice, the custodial parent has a higher chance of turning the child against the non-custodial parent. The Guardian Courts inadvertently help in turning the child against one parent by not granting an appropriate schedule of meeting between them. The non-custodial parent pursues litigation in the hopes of justice but frequently realizes that the system is unable to provide him or her with a solution. Non-custodial parents are disheartened and give up which results in the minors losing one parent forever.
In the case of Umer Farooq vs Khushbakht Mirza (cited as 2008 PLD 527 Lahore) it has been held by the honourable Lahore High Court that contesting parents, especially the fathers being natural guardians, have an inherent right to seek visitation to the minor. The father is not only required to participate in the upbringing of minors but should also develop love, bonding and affinity with them. To achieve such a purpose, the court should facilitate a congenial, homely and friendly environment and a reasonable visitation schedule. Court of the Guardian Judge for such purpose, is neither conducive nor effective, lacks proper facilities and arrangements and is not comparable to a homely environment.
“Meeting in court premises did not serve the purpose of the meeting and it was not in the welfare of minors to hold meetings there — Meetings of minors with parents should preferably be held at the premises of contesting parents to familiarize minors with environment there, to strengthen a healthy relationship and dispel fears of future re-union — Only in extreme and exceptional cases, could the court of the Guardian Judge be chosen as a venue for which detailed reasons should be cited, thus a mechanical order in such a context was not tenable.”
A balanced annual visitation plan would benefit the child as it would allow significant time to develop a meaningful relationship with both parents. Overnight access could also benefit the child by giving him or her an opportunity to interact with the family of the non-custodial parent and maintain relations with them.
Generally the Guardian Judges are not able to understand that once they make a certain order and give rights for visitation they should not change or curtail these rights unless special circumstances exist. For example, if the court grants visitation twice a week to the non-custodial parent, it should not arbitrarily change this time period. The court should not alter the time period unless some complaint is made by the opposing party or the child himself or herself. However, in practice judges usually curtail two visitations a month to only one, without giving any reason for this change in the order. Even with the protection of visitation rights for non-custodial parents under section 5 of the Schedule (attached with the West Pakistan Muslim Family Courts Act 1964), the situation is as described above. It cannot be ignored that a proceeding to grant interim custody of a minor is a proceeding that looks closely at the welfare of the child. The proceeding should be seen as more than a litigation between the parties as the rights for visitation are also for the benefit of the minor – these rights allow the minor to meet or visit his or her non-custodial parent twice a month within the court premises. This is why the court should be careful before reducing this right as it would affect the parties and the children involved.
Such right once vested, could not be destroyed or withdrawn as the parties would be barred under the doctrine of locus poenitentiae. Reliance is placed upon 2015 SCMR 1418 Supreme Court.
In the social conditions that exist today, it is very necessary that parents must regard it as their foremost responsibility to bring up their children as healthy, happy and useful individuals of an all-round standard of education and as active builders of society. The purpose, therefore, of the law of guardianship should be to ensure this development of the child and to safeguard his or her interests. This could only be done if, in the appointment of the guardian of a minor, the welfare of the minor is made the first and paramount consideration and no other consideration, such as the superiority of the mother or father, is prioritized. In appointing a guardian, the court must also see which of the claimant would be best suited by his or her educational competence and influence, and by his or her own example would be able to provide the requisite care in the upbringing of the child. It is the need of the hour to overhaul and revise the existing Guardian & Wards Act 1890, so as to embody the idea of the welfare of the minor being the first and paramount consideration in the appointment of a guardian and in other related matters. Even as it presently is, the working of the Act has revealed a number of defects and deficiencies which hamper its administration. Some of the provisions of the Act require elaboration and clarification.
There is an urgent need to establish a well-defined framework and guidelines for family courts and counselors to implement while deciding on the matters of custody of children. If there is delay in action or a callous approach, what kind of future society or generation would we be creating? Needless to say, today’s youth are going to be the leaders and thinkers of tomorrow.
The nation’s future depends upon the children of today. Hence, immediate intervention of higher courts is needed. Presently these issues are being decided in an absolutely subjective fashion by the Family Court, which is seriously affecting the mental health of the tender children as well as specifically violating the provisions of the UN Convention on Rights of the Child (CRC).
It is the fundamental right of every child to get love and affection from both the parents (irrespective of the parents’ conflict), the right to quality of life and survival, the right to be cared for, the right to develop a sense of belonging, the right to participate fully in family, cultural and social life, etc.
Another error made by our Guardian Judges is their failure to appreciate that an annual schedule of meeting is necessary to ensure that a parent continues to be present in the lives of the children. It is pertinent to note that an appropriate and reasonable annual interim visitation schedule in common terms means a child is to be brought up with love and guidance from both parents. It is basically an acknowledgment of nature’s principle of providing two parents for each child in order to ensure their healthy development and upbringing. It is pertinent to be noted here that although different countries use different definitions of reasonable and appropriate interim visitation schedule, the most commonly accepted definition is “a collaborative arrangement in child custody or divorce determinations in which both parents have the right and responsibility of being actively involved in the raising of the child(ren)”. It is also referred to as “joint custody” or “co-parenting” or “equally shared parenting”.
A reasonable and appropriate interim visitation schedule, or shared parenting, is an extension of the UN Convention on the Rights of Child 1989 (CRC), to which Pakistan is a signatory. Article 5 of the CRC states that “state parties shall respect the responsibilities, rights and duties of parents”, acknowledging the importance of both parents in the life of the children.
For the purpose of the said Article, it is peculiar to define it in terms of objectives to be achieved:
- The children feel that they have two properly involved parents who have broadly equal ‘moral authority’ in their eyes.
- The children absorb values and traditions from both families in substantial measures in order to carve their own sense of belonging and identity.
- Time is allocated for both parents in such a way that no one parent is excluded from any aspect of the child’s life e.g. sleeping and waking rituals, school, homework, friends, leisure time, vacation, important religious and national festivals, important dates like birthdays, etc.
- The children must not get stereotypical ideas from their parents about the roles of the sexes, for example that a father’s role is chiefly financial and a ‘giver of treats’ and mothers have responsibilities for everything else.
The basic principle that the court must follow would be to ensure that the children get to spend equal or substantial and significant time with both parents, to be showered with love and affection, irrespective of the conflict between the parents. Efforts should be made by the parties themselves and if necessary, the court should direct the parties to mutually agree upon a visitation schedule to be drawn up within a maximum period of 60 days. Pending finalization of mutual overnight visitation agreement, an interim access should be worked out immediately.
If the parties cannot agree on visitation, their first alternative is to mediate the conflict. Visitation is for the primary benefit of the child. Visitation should not be viewed as a privilege to be exercised at the whim of either parent, but as a responsibility that should be fulfilled as a necessary cause. The custodial parent is expected to provide access of each child at unscheduled times if requested and if to do so would not unreasonably disrupt prior planned activities of the child or the custodial parent.
It is essential for the courts develop a comprehensive visitation plan which should be applicable once the custodial proceedings begin. An annual visitation plan is also necessary and should be designed on the idea that the minor is entitled to the continuation of all the healthy activities he or she enjoyed with the non-custodial parent before separation, and must be ensured every opportunity to spend regular unfettered time with the non-custodial parent and his or her side of the family. This way, none of the three parties to the litigation i.e. the child, the father and the mother, will feel cheated out of their fair share. As a result, the tendency to develop custody litigation into a criminal proceeding would also be checked for good, while paving way for the true welfare of the minor.
As per my humble understanding, the only answer to this excruciating problem is to introduce a balanced, just, reasonable and appropriate interim visitation schedule for the duration of the case. The interim visitation schedule should be in line with human feelings and needs, paying special attention to the requirements of the child involved and in accordance with the teachings of Islam and the Quran.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.