The Hindu : Tamil Nadu / Madurai News : Madras High Court ruling on child custody cases

Online edition of India's National Newspaper
Sunday, Mar 27, 2011
ePaper | Mobile/PDA Version

Tamil Nadu

Tamil Nadu - Madurai

Madras High Court ruling on child custody cases

Staff Reporter

“It cannot go by choice of child”

MADURAI: In cases related to custody of children, courts should not surrender their responsibility to the will of a small child by doing nothing more than merely recording his/ her unwillingness to live with one of the parents, the Madras High Court has said.

Passing interim orders in one such case, Justice V. Ramasubramanian said that courts cannot plead helplessness on the ground that a child of six or seven years refuses to go with one of the parents, as it would amount to abdication of responsibility vested with the court.

“Judges, who are not experts in child psychiatry, tend to believe the views expressed by children in their chambers as amounting to ‘intelligent preference,' though at times they happen to be mere intelligent manipulations,” the judge said.

Holding that the preference of a child could not be allowed to replace the judgement that a court was obliged to render, he said that it was “quite unfortunate that the courts still dabble with the age-old concepts of custody and visitation rights.”

“It has become customary for courts to speak to the child for a few minutes… But, when the court is confronted with a stubborn child, the execution of a decision to hand over the child to one of the parents, against the wishes of the child, becomes a Herculean task.”

In recent times, the emphasis has shifted from the regime where the courts were concerned with the rights of the parents over the child to a regime where they should be concerned about the responsibilities of the parents towards the child, he added.

In the present case, a nine-year-old boy had preferred his father to mother.

He turned violent and disturbed court proceedings when attempts were made to make him interact with the mother for some time, thereby forcing the woman to request for psychiatric assessment of the child.

“I acceded to her request, in view of the fact that today in all child custody cases the same problem is cropping up. In 90 per cent of child custody cases which I have come to handle in the recent past, every other child refuses to go from the parent with whom he is residing to the other parent.

“Unfortunately, in most of the cases, we, the Judges, plead helplessness whenever the children refused to go with one of the parents. This has happened especially in cases where the children are aged more than 5 years,” the judge said.

He pointed out that psychiatrists categorise parents into three — permissive parents (who yield to coercion, whining, nagging and crying by the child) authoritative parents (who do not yield to coercion) and authoritarian parents (who enforce harsh punitive discipline).

In the present case, a senior child psychiatrist examined the boy and held that he had no deep-rooted problems.

He preferred the father who provided the child a permissive environment whereas the mother was an authoritative parent interested in his welfare.

“Every child needs a combination of both parenting styles, viz. an indulgent parenting style and an authoritative parenting style, so that they get the best of both. In most of the homes, which are normal, one of the parents is authoritative and the other permissive.

“Thirty years ago, the father used to be authoritative and the mother permissive, but the scenario has got reversed today. Therefore, in a united and normal home, the children have the best of both, but in broken homes, they have the worst of both,” Mr. Justice Ramasubramanian said.

Stating that both the father and the mother had a joint responsibility of raising the child, he ordered that the father should take care of him during weekdays and the mother during weekends.

The father was asked to ensure that the child accepts the arrangement, failing which he would be ordered to be admitted in a boarding school.

Printer friendly page
Send this article to Friends by E-Mail

Tamil Nadu