Shared parenting in child custody litigation

When a marriage breaks down, children suffer

Shared Parenting is the title of the book written by a distinguished and acclaimed lawyer, Fahad Ahmad Siddiqi, who advocates that the separation or divorce occurs between spouses and not between parents. The book is an excellent guide for the practicing lawyers and Family/ Guardian Judges as the author did great research on various topics covering different aspects of child custody litigation not only from the legal point of view but also from the social side. This book is testimony to the fact that family formation patterns have altered significantly in Pakistan with the rise in dissolution of marriages cases. A broken family has negatively affected all domains of divorce and affected children’s development and social relationships in several ways.

A close perusal of the book shows that the author has painted the sufferings of non-custodial parents in a lucid manner as he opined that a large number of the non- custodial parents involved in child custody litigation, after separation between the spouses, bear the brunt of the arbitrary and capricious practices that are being followed by the Family/ Guardian courts in Pakistan. Under the present legal system of Pakistan, a gender-biased approach in the matters of child custody has deprived a large number of divorce-affected children from the love, care, affection and company of the non-custodial parents.

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Some children act out their distress about their broken family by acting aggressively and by engaging in bullying behaviour, both of which can negatively affect peer relationships. Other children may experience anxiety, which makes it difficult for them to seek positive social interaction and engage in developmentally beneficial activities such as teen sports. It has also been noticed that teens from broken families develop a cynical attitude towards relationships and harbour feelings of mistrust, both towards parents and any potential partner.

The custody of the child generally rests with the mother at a tender age as our courts believe on this principle that ‘the lap of a mother is God’s own cradle’. However, this principle by no means deprives the father from having access to and temporary custody of his children and spending some quality time with them at his own home. Unfortunately, the courts’ attitude towards the non- custodial parents has exacerbated their sufferings by not allowing them home visitation to meet their beloved children at their homes. In child custody litigation, it has been witnessed that non-custodial parents get once a month a few hours’ visitation right to interact with their children only within court premises. I concur with Mr Siddiqi on this point that our legal framework is silent on how visitation issues should be handled and what should be the process of dispute resolution between parents over children.

In normal circumstances, the courts must discourage visitation within the court premises as a Division Bench of the Baluchistan High Court held in Abdul Khaliq vs. Ms. Mahnoor and others that “court was to facilitate a congenial, homely, and friendly environment and reasonable visitation schedule. Office of the Guardian Court, for the said purpose, was neither conducive nor effective which lacked proper facilities and arrangements, and was not comparable to a homely environment”. The meeting within the court premises could not serve the purpose of meeting. The federal and provincial legislatures should make necessary amendments to the existing laws to help ease the sufferings of both divorce-affected children and non-custodial parents.

Apparently the training of Family/Guardian Judges at the Punjab Judicial Academy is flawed and outdated, bringing in acute hardships to not only the already divorce-affected children but also to the fathers for being non- custodial parents who suffer from contact denials with their divorce -affected children. Separated or divorced parents agitate against unnecessary delays in legal proceedings, resulting in denial of speedy access to their children.

Separation and divorce represent the death of a marriage but for a child caught in the middle or too young to understand the significance of visitation rights it could mean the death of a parent. Quite often child custody litigations prove damaging for both children and the parents. The Guardian and Wards Act, 1890 read with Family Court Act, 1964, are the fundamental laws under which the custody of minors is claimed. However, these laws warrant a review.

Elsewhere in the world, estranged parents are encouraged to resolve child custody issues through mutual agreement. This is usually done through out-of-court (though with legal help) dispute resolution processes like mediation and collaborative law. The latter is a relatively new legal approach to family conflict resolution involving lawyers and is increasingly gaining acceptance in many countries.

Mostly single- fathers brand themselves victims at the hands of manipulators of guardian or family laws of the country, soit has become necessary for the legislators to incorporate provisions in the law whereby an interim joint custody should be announced by the court immediately when either of the parents files a suit for custody of his or her child

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It has also been witnessed that it takes years to fight exhaustive child litigation. Therefore an amendment to the existing laws be made to make it obligatory upon the guardian courts to resolve the issue of child custody within a period of four months, and no unnecessary adjournment be granted to the parties to prolong the litigation.

In normal circumstances, the courts must discourage visitation within the court premises as a Division Bench of the Baluchistan High Court held in Abdul Khaliq vs. Ms. Mahnoor and others that “court was to facilitate a congenial, homely, and friendly environment and reasonable visitation schedule. Office of the Guardian Court, for the said purpose, was neither conducive nor effective which lacked proper facilities and arrangements, and was not comparable to a homely environment”. The meeting within the court premises could not serve the purpose of meeting. The federal and provincial legislatures should make necessary amendments to the existing laws to help ease the sufferings of both divorce-affected children and non-custodial parents.

Mian Rauf
The writer can be reached at [email protected]

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