The concept of parenting plan in child custody/interim custody/child visitation decisions is relatively new in India. The main reasons are this are to do with both statute, and also how historical precedents in child custody cases have considered child custody to be a decision about whether sole custody of child to be given to mother OR to father, and the other non-custodial parent can at best get some visitation rights of few hours in a month to show child love and affection, as the expression goes. The concept of joint/shared custody being considered for welfare of child is something which is slowly percolating through courts.
Law Commission of India in its May 2015 report number 257 on “Reforms in Guardianship and Custody Laws in India” has recognized the need for amendment to both laws and guidelines related to custody and guardianship.
The report (PDF) can be downloaded from http://lawcommissionofindia.nic.in/reports/Report%20No.257%20Custody%20Laws.pdf
OR at goo.gl/4m6W3z
Amendments to Custody/Guardianship laws and Objectives
Law Commission has laid down the following objectives in the report:
1.3 This report of the Law Commission reviews the current laws dealing with custody and guardianship, namely, the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956, and recommends legislative amendments to achieve the following objectives:
1. Strengthen the welfare principle in the Guardians and Wards Act, 1890 and emphasize its relevance in each aspect of guardianship and custody related decision-making
2. Provide for equal legal status of both parents with respect to guardianship and custody
3. Provide detailed guidelines to help decision- makers assess what custodial and guardianship arrangement serves the welfare of the child in specific situations.
4. Provide for the option of awarding joint custody to both parents, in certain circumstances conducive to the welfare of the child.
Pages 69-70 of Law Commission’s report provide objectives regarding proposed amendments to guardianship and custody laws. These are given below:
5. In the principal Act, after Chapter II, the following Chapter IIA shall be inserted, namely:–
“Chapter IIA: Custody, Child Support and Visitation Arrangements
19A. Objectives of the Chapter.
The objectives of this Chapter are to ensure that the welfare of a minor is met by:–
(a) ensuring that the child has the benefit of both parents having a meaningful involvement in his life, to the maximum extent consistent with the welfare of the child;
(b) ensuring that the child receives adequate and proper parenting to help achieve his full potential;
(c) ensuring that the parents fulfil their duties, and meet their responsibilities concerning the care, welfare and development of the child;
(d) giving due consideration to the changing emotional, intellectual and physical needs of the child;
(e) encouraging both the parents to maintain a close and continuing relationship with the child, and to cooperate in and resolve disputes regarding matters affecting the child;
(f) recognising that the child has the right to know and be cared for by both the parents, regardless of whether the parents are married, separated, or unmarried; and
(g) protecting the child from physical or psychological harm or from being subjected to, or exposed to, any abuse, neglect or family violence.
19B. Applicability of this Chapter.
The provisions of this Chapter shall apply to all proceedings involving parents related to custody and child support, including such proceedings arising under the Indian Divorce Act, 1869, the Parsi Marriage and Divorce Act, 1936, and the Hindu Marriage Act, 1955.
Shared Parenting Plan
Above are the objectives which provide reasons of “Why” reforms in custody and guardianship laws are needed. Parenting Plan document is the “How” about procedure and steps needed to arrive at a shared parenting arrangement which will be conducive for welfare of child.
So for example, Law Commission in report 257 has recommended addition of Schedule to Guardians And Wards Act regarding GUIDELINES FOR CUSTODY, CHILD SUPPORT AND VISITATION ARRANGEMENTS. Page 78-80 of the report gives information about Parenting Plan.
VIII. PARENTING PLAN
(1)The objectives of a parenting plan are to–
(a) minimise the child’s exposure to harmful parental conflict; and
(b)encourage parents to mutually agree on the division of responsibilities of the child’s upbringing through agreements in the parenting plan, rather than by relying on court intervention.
(2)In designing a parenting plan, the parents must ensure that it is for the welfare of the child, and that–
a. the day-to-day needs of the child are met;
b. any special needs that the child may have are met;
c. the child gets to spend sufficient time with each parent so as to get to know each parent, as far as possible;
d. there is minimal disruption to the child’s education, daily routine and association with family and friends; and
e. transitions from one parental home to another are carried out safely and, effectively.
(3)A parenting plan may deal with one or more of the following, namely:–
a. the parent or parents with whom the child is to live;
b. the time the child is to spend with the other parent;
c. the allocation of parental responsibility for the child;
d. the manner in which the parents are to consult with each other about decisions relating to parental responsibility;
e. the communication the child is to have with other persons;
f. maintenance of the child;
g. the process to be used for resolving disputes about the terms or operation of the plan;
h. the process to be used for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan;
i. any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for the child.
(4)The parenting plan must be voluntarily and knowingly arrived at by each parent.
(5)The court shall not ordinarily interfere with the division of responsibilities between parents reflected in the parenting plan, unless they are ex facie inequitable.
(6)If the initial parenting plan does not cover certain issues, the parents may approach the court to modify the terms of the plan to address new subjects of decision-making.
Further, to get into more specifics and steps of arriving at parenting plan, the document on “Child Access & Custody Guidelines Along with Parenting Plan” created by Child Rights NGO can be used. The same document has have been approved by Bombay High Court, Madhya Pradesh High Court, and Himachal Pradesh High Court as a guidelines document to be used in decision on custody and visitation matters.
Download of PDF document is at http://cja.gov.in/Important%20Instructions/Child%20Access%20&%20Custody%20Guidelines%2001.06.2015.pdf
OR at goo.gl/JLrSRY
Excerpt from the above document’s Parenting Plan related guidelines is below:
The numbers of divorce cases are rising, more and more couples have been approaching family court for divorce, resulting in rise of bitter child custody and access matters.
A serious need is therefore felt for the introduction of a Parenting Plan which will help reduce the burden of courts and counselors to a great extent and will also help in speedy disposal of court cases. Parenting Plan shall also bring out an ease between the couples who are undergoing separation.
During the initial stage itself a copy of parenting plan can be provided to the couples by the court counselors making them aware and help the parents mutually draw a suitable parenting plan agreeable and acceptable to both the parents and which would cover aspects related to the child custody and access in the best interest and welfare of the child
Further, the Parenting Plan looks at areas which can be considered to determine best arrangement for child custody and visitation orders. Following points can be used as a checklist by parents and courts to arrive at a suitable parenting plan for child.
A standard parenting plan by the Court puts the best interests of the child first. It is drawn up in good will with a shared commitment to the children and their future firmly in mind (just like consent terms).
In developed nations most of the states, there is a law required that court-ordered parenting plans must set forth the minimum amount of parenting time and access a noncustodial parent is entitled to have.
A parenting plan is a written agreement between parents covering practical issues of parental responsibility approved by the Court.
Parenting Plan will detail practical decisions about children’s care in such areas as:
- Parenting Time (physical custody)
- Major Decision Making (legal custody)
- Visitation /Access
- Transportation and Exchanges
- School Holidays, Vacations and Festivals
- Child Support / Maintenance
- A Dispute Resolution Process
- Schools Attended and Access to Records
- Physical and Mental Health Care
- Contact Information, Relocation
- Activities and School functions
- Overnights and Visitation
- Communications and Mutual Decision-Making
- Medical Insurance
- Contact with Relatives and Significant Others
Parents normally can make variations to the court standard parenting plan or develop a different custom plan if the judge approves the changes.