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Concept of ‘Shared Parenting’ to be applied while deciding Child Custody Cases

The Hon’ble High Court of Karnataka in Smt. Savitha Seetharam V. Sri Rajiv Vijayasrathy Rathnam [M.F.A. No 137 of 2015] observed that the ‘Concept of Shared Parenting’ should be applied while determining child custody cases.

It was noted by the Hon’ble court that in case of separation of parents on account of dissolution of marriage by a decree of divorce, the children of the marriage are most affected physically, emotionally and their upbringing would take a beating. The Hon’ble Court observed that One of the ways to resolve the conundrum is, by the emerging concept of shared parenting. In some overseas jurisdictions, the concept of shared parenting has been in vogue and prevalent but not so well entrenched in India and has been ordered only in a handful of cases. It is necessary to remind ourselves that a child requires both parents, the mother and the father in jointly bringing up the child which would have a holistic impact on the overall growth of the child. This is because both parents have a joint responsibility in bringing up their children as each parent would contribute in a unique way to the mental, physical and emotional/psychological development of the child. Hence, whenever there is a separation between the parents, shared parenting would mean that the joint responsibility would continue subject to certain arrangements being put in place.”

The Hon’ble Court then expounded the meaning and the difference of the terms ‘Joint Physical Custody’ and ‘Joint Legal Custody’ as, it is necessary to understand two terminologies, namely, joint physical custody and joint legal custody. Joint legal custody means that both parents have equal rights and responsibilities towards the child including the child’s education and upbringing, whereas the joint physical custody would mean, both parents would share the physical custody of the child by spending equal time and having equal contact with the child.”

The Hon’ble Court while expounding on the Shared Parenting observed that “In some cases, the concept of shared parenting may not work at all, particularly when one of the parents resides abroad or in a place different from the residence of another parent. It all would all depend on the facts and circumstances of each case, but there is a clear momentum in law towards shared parenting with the child in focus and the rights of the child being the over-riding factors rather than the rights of the separated parents. It would be ideal if the parents jointly submit a plan for shared parenting. In the alternative, the Court must exercise its parens patriae jurisdiction.”

It was further observed by the Hon’ble Court that That while preparing a joint parenting plan, care must be taken so that there is no instability or inconvenience caused to the child. Also the expression “joint” or “shared” would not mean mathematical exactitude or precision, as there must be pragmatism and innovation required at every stage. The personal profile of the parent, their educational qualification, residence, economic and social status, etc., would be important factors while developing the joint parenting plan. As there is no legislation as such in India on shared parenting, the same must evolve with judicial interference, innovation and involvement in assessing the requirements of each child.”

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