Shared Parenting and Visitation Rights During Child Custody Litigation

Shared Parenting and Visitation Rights During Child Custody Litigation

The Need For Implementation Of Shared Parenting and Home Visitation Of Minors With Their Non Custodial Parents Instead Of Just 2 Hours Once Or Twice A Month Within The Court Premises During The Adjudication Of  Child Custody Litigation In Guardian & Family Courts In Pakistan

Family is a fundamental unit of any society or nation and is particularly important to ensure the well being and all round development of its children.  A family consists of not just the mother and father (along with their respective parents & siblings in some cases) but also of their value systems, their beliefs , their aspirations and their struggles, and as a link to a child’s past and a bridge to their future. However, another reality in Pakistan today is that just as joint families have given way to nuclear families, marriages are no longer a bond of a lifetime, rather they are a meeting of two souls (& sometimes families) to “explore” the possibility of being a partner in each other’s journey. The recent trend in our society is seeing a paradigm change in matrimonial relationships, with an increasing number of divorce cases, particularly since the last two decades, while more and more middle and lower-middle class couples have been approaching family courts for divorce, resulting in the rise of bitter child custody battles. The innocent child/ children are often being used as a tool to seek vengeance by vindictive litigants who feel no hesitation in inflicting severe emotional and psychological abuse on the child, thereby seriously affecting the child in his/ her development in the later part of life. Among many implications that a divorce has on the individual, family and society at large, the children of divorced couples are the ones who bear the brunt of the entire process. It is a common practice among couples to use kids as pawns in this game of emotional chess and it amounts to absolutely irresponsible parenting to scar children emotionally post separation. In due course the parents move on with their lives and onto other partners but the children carry the trauma of being manipulated and torn apart emotionally, throughout their lives. In my legal experience I have seen a large number of these kids suffering from personality disorders, substance abuse, criminal conduct and anti social traits etc.

It is pertinent to note that the flawed guardian court system in Pakistan is being manipulated to take revenge from the non-custodial parent (which is usually the father) by not letting him meet his children. It is extremely easy to delay proceedings simply by filing frivolous applications/appeals and assailing the orders to higher courts. Using similar delaying tactics, thousands of children are kept from meeting their non-custodial parent for months and in some cases, years. The guardian courts are unwilling to acknowledge the simple fact that the nature of a child custody case is entirely different from routine civil cases. Child custody litigation is a true representative of judicial litigation where “justice delayed is justice denied”. The mind of a child is like a perishable commodity. With the passage of time it is easy to change the innocent mind. Within months, due to a lack of interaction with the non-custodial parent and constant brain-washing by the custodial parent and his/her family, the children start losing memory of, and in many cases, start disliking, the non-custodial parent who was once extremely dear and loved. This phenomenon has been named by psychiatrists as the Parental Alienation Syndrome or “PAS”.

Despite the fact that the Holy Quran ordains, that “No mother should be harmed through her child, and no father through his child”. On the contrary, regretfully stated that 99% of non-custodial fathers and mothers feel chastened when they cannot meet their own child sufficiently, while they are unjustifiably made  to “earn” every minute’s meeting with the child by spending money, energy and time, in shape of heavy legal expenses, various applications and surety bonds. That God Almighty in all His Wisdom has not only directed us through Surah Al Baqra’s verse 233 “No person is charged with more than his capacity” not to overburden anyone but also directed on several occasions to discuss and then decide by consensus (Ijtihaad) what may be considered a “just” division of time, responsibilities and powers between two contesting sides. Any judicial order assigning more than 99% responsibility to any one parent means setting aside directions by Allah, especially when the other is begging the judge to let him/her be an equal parent, is “granted” but not “ensured” a mere 1% contact with the child. No parent can be practically expected to perform all duties of both sexes for a child.

Save in accordance with the provisions of Art.4 & Art.10-A of the Constitution of the Islamic Republic of Pakistan, 1973, to be read with Section 19 of the Guardian & Wards Act 1890 “right of individuals to be dealt with in accordance with law, etc”, the point (b) “no person shall be prevented from or be hindered in doing that which is not prohibited by law”, & as per Art. 10-A, “Right of Fair Trial, for the determination of his civil rights and obligations a person shall be entitled to a fair trial and due process” clearly indicates that non custodial parents according to our Constitution cannot be barred from freely meeting their children until and unless there is legal evidence to prove them unfit for contact.

Our guardian / family judges are apparently oblivious  of the fact that there is no specific duration or frequency defined in the Guardian & Wards Act 1890 for granting a visitation schedule for the minors. The provisions dealing with interim custody of the minor is regulated under Section 12 of the Guardian & Wards Act, 1890, which is absolutely silent regarding the quantum of visitation or venue of visitation. The basic paramount consideration to decide a reasonable schedule is the “WELFARE OF THE MINOR”. However, even after waiting for months for the first face-to-face meeting with his/her own children, the non-custodial parent gets an extremely limited visitation schedule to meet the children. This visitation schedule is often as little as ONCE IN A MONTH FOR TWO HOURS WITHIN COURT PREMISES. Surprisingly, this visitation schedule is being followed widely in the guardian courts of Pakistan for over decades and has now established precedence, despite the fact that NO PROVISION of Guardian & Wards Act 1890 or of West Pakistan Muslim Family Courts Act of 1965 supports such a limited visitation time to non custodial parents, majority of who are fathers. In large majority of cases, the respondents often get confused with the exercise of jurisdiction. It is pertinent to be noted here that Order for temporary custody is usually passed at the time when evidence is not produced before the Court. Such Order must be passed keeping in view of the welfare of the minor under Section 12 of the Guardian & Wards Act 1890 and should not become the Order passed under section 25 of the Act, determining the rights of the parties with regard to the custody of the minor – the difference between the two provisions must be kept in view. Reliance is placed upon 2014 CLC 330 Islamabad.

Even the aforementioned visitation schedule of TWO HOURS can be conveniently avoided by a custodial parent simply by presenting a fake medical certificate showing they are unable to make it. In such cases the non-custodial parent is left with no choice but to wait for the next scheduled meeting. The guardian courts are generally very casual towards such excuses furnished by custodial parents.

On an average, a family/ custody case under the Guardian & Wards Act lasts approximately three to five years in the guardian courts. During these years, owing to a lack of interaction between the minors and the non-custodial parents, the parent-child bond keeps on depleting and often completely breaks after a while. In a majority of cases it has been observed that the custodial parent keeps on brain-washing the minors against the non-custodial parent. On top of that, the guardian courts strengthen the revengeful motives of the custodial parent by not granting a reasonable visitation schedule between children and the non-custodial parent. It has been seen that the non-custodial parent initially struggles and contests the litigation in the hopes of getting justice, but then finally gives up after being disappointed. He/she re-marries, starts a new life and bears new children. As a result the minors normally end up losing one of the parents forever.

In cases where the minors are in the custody of the custodial parents and are being used as a tool for seeking revenge by not letting them meet the non-custodial parents, the non-custodial parents often respond by discontinuing the money they were providing the family for maintenance. Many fathers in the Guardian Courts ask why they should pay maintenance when they are unable to even see their children. Meeting for two hours in a month is rather torturous.

It has been observed that keeping the minors away from the non-custodial parents further aggravates the already adverse relationship between custodial and non-custodial parents. Most separated/ divorced couples after many years of litigation forget the actual reasons for separation and just fight over the visitation rights of children. Had the court not supported the element of revenge through children, matters could have cooled down between the parties with the passage of time.

It is pertinent to state here with respect that the Guardian Courts are required to act as a bridge between the estranged parents and the grieved children, but in reality the lax procedure acts as a barrier in the reunion or in mutual cooperation between the estranged spouses. For the betterment of a broken family, a child must be allowed to spend reasonable time with both the separated parents throughout the year. It is further submitted here with respect that by restricting access of a non-custodial parent to merely 2 hours once or twice in a month is an attempt to deny access between the minor and his parent, hence the same does not serve the very purpose of the welfare of the minor. A father could not be considered an alien enemy qua children. A child would need love, affection, care and attention of the mother as well as the love, affection, company and the guiding hand of a father. Depriving a father of his right to meet his children for a reasonable time would lead to emotional deprivation on both sides. Any amount of acrimony between ex-spouses should not be allowed to stand in the way of the welfare of the minor. The father and minor should also have access to each other and spend time in each other’s company during the minor’s vacation period. Reliance is placed upon 2013 MLD 1631 Lahore.

Though family matters were not to be decided strictly on the yardstick of procedural laws nor any other principle aimed at the observance of technicalities. Paramount consideration before the court must be the welfare of the minor and betterment of the minor. Courts in such a matter are required to act in a loco parentis position and many matters are required to be kept into consideration by the guardian court. Reliance is placed upon 2005 PLD 97 Lahore.

In another judgment Hina Jilani Vs Sohail Butt,1995 PLD 151 LHR, the Honourable Lahore High Court cited, “Such disputes could not be resolved on the basis of any technicality nor any principle of law completely divorced from the realities of situation”. In all matters relating to custody of minors, courts act in loco parentis. The court must perform its legal duty to regulate custody of minor in order to ensure his well being and welfare which should be the paramount and dominant consideration.

The guardian/ family judges are hesitant to exercise a therapeutic parental jurisdiction vested in them by virtue of their office despite the fact that there exists no specific provision of the Guardian & Wards Act 1890 which regulates the time and venue of interim visitation between the non-custodial parent and minor child and the matter is left with the exercise of the discretion of the Court, although certain guidelines have time and again been issued by the superior courts in this regard. It is therefore reiterated with humility that 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, in the following terms that:

“In guardianship matters, courts should exercise quasi parental jurisdiction. The supreme consideration in such context would be the welfare of the minor, and to achieve such purpose courts have unfettered powers. Application under section 12 of the Guardian & Wards Act, 1890 was required to be decided on such principles. Admittedly, contesting parents have an inherent right to seek visitation of the minor, especially the non-custodial parent, who is mostly the father, who is inherently a natural guardian of the minor. Father is not only required to participate in the upbringing of minors but to also develop love, bondage and affinity with the minors. In order to achieve this purpose, the guardian court should facilitate a congenial, homely and friendly environment and a reasonable visitation schedule to the non-custodial parent. Courtroom of a Guardian Judge or a separate room within the court premises for visitation or meeting purposes is neither conducive nor effective. It lacks basic and proper facilities and arrangements and is not comparable to a homely environment. Meeting for two hours once in a month cannot serve the purpose of meeting and it is not in the welfare of the minor to hold meetings there with the non-custodial parent. Meeting of minors with the non-custodial parent should preferably be held at the premises of the contesting parent to familiarize minors with the environment there, to strengthen a healthy relationship between the minor and the non-custodial parent and dispel fears of a future reunion. Only in extreme and exceptional cases, the courtroom of a Guardian Judge could be chosen as a venue for which detailed reasons should be cited, thus mechanical order in such context was not tenable.”

An appropriate and reasonable interim visitation schedule in common terms refers to when children are brought up with the love and guidance of both parents. It is basically an acknowledgment of nature’s principle for providing two parents of 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 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 (UNCRC) to which Pakistan is a signatory. Article 5 of the UNCRC states, “state parties shall respect the responsibilities, rights and duties of parents” acknowledging the primacy of both parents in the life of the children.

Keeping in view of the therapeutic nature of parental jurisprudence of the child custody litigation, it is peculiar to define the very term welfare of the minor in terms of the objectives to be achieved:

1. That the children feel that they have two properly involved parents who have broadly equal ‘moral authority’ in their eyes
2. That the children imbibe values and traditions from both families in substantial measure in order to carve their own sense of belonging and identity
3. That time is allocated between both parents in such manner that no one parent is excluded from any aspect of child’s life e.g. sleeping and waking rituals, school, homework, friends, leisure time, vacation, important religious and national festivals, important milestones and dates like birthdays, etc.
4. That the children do not develop stereotyped ideas from their parents about the roles of the sexes, like seeing the father’s role as chiefly financial and a ‘giver of treats’ and mothers to have responsibilities for everything else.

It is the need of the hour to develop and design a comprehensive visitation plan based on the undeniable logic that the ward/ minor is entitled to the continuation of all the healthy activities he/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/her side of the family in their home. This way, none of the three parties will feel cheated out of their fair share from each other and as a result, the tendency to develop custody litigation into a criminal proceeding will be checked for good, paving way for the true welfare of the minor.

As per my humble understanding, the only answer to this excruciating problem is introduction of a balanced, just, reasonable and appropriate interim visitation schedule in line with human nature and the teachings of the Quran.

 

The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.