Non-Custodial Parent Must Have Visitation Rights To Ensure Contact With Child, Joint Parenting A Norm: Delhi High Court

The Delhi High Court has observed that in custody matters, a parent without the custody of their child is entitled to visitation rights so as to maintain the bond with their child. The Court stated that joint parenting is the norm and emphasised that the best interest of the child needs to be taken into consideration while determining custody.

The Division Bench of Justice Rajiv Shakdher and Justice Amit Bansal were considering the father/appellant's challenge against a Family Court's order rejecting his application for temporary custody of his minor son of 8 years to celebrate upcoming festivals with him. The Family Court found that the child was uncomfortable in the presence of the appellant and that granting temporary custody to the appellant would cause mental trauma to the child.

The Family Court had permitted the appellant to meet his son twice every month in the Children's Room, Dwarka Courts in presence of a counsellor. The appellant's challenge against this order was dismissed by a Coordinate Bench of the High Court.

The appellant stated that he was unable to meet the child in the Children's Room due to the respondent-wife's presence, which was influencing the child's behaviour. Since they had not met in a long time, the appellant claimed that the child had become apprehensive about meeting him. The appellant contended that granting an interim/temporary custody to him would be the only way to remedy the situation.

The Court emphasised the 'best interest of the child' principle while deciding on custody of a minor child. It observed that the even a parent who does not the custody of their minor child, have the right to visitation so to ensure that that the child maintains contacts and receive love and affection from both the parents.

“It is a settled position of law that in matters of custody of a minor child, the Court has to look into the best interest of the child. The best interest of the child has to be determined taking into account all relevant circumstances. It cannot also be disputed that a minor child requires the love and affection of both his parents. Therefore, even if the custody of the child is with one parent, the other parent must have visitation rights so as to ensure that the child maintains contact with the other parent. Joint parenting is the norm. If the court moves away from this norm, it should clearly articulate its reasons.”

For granting visitation rights, the Court noted that it may require inputs from experts to determine the manner of visitation. It remarked “One of the facets of joint parenting is the grant of visitation rights. At times, the courts need inputs from domain experts. The timing, duration and whether oversight of say a child counsellor is required during visitation by a non-custodial parent, is a call that the court has to take bearing in mind the best interest of the child.”

In the present case, the High Court took note of a report from the Family Court Counsellor which indicated that the child was reluctant to meet the appellant as he was apprehensive. Despite the counsellor's intervention, the child did not respond to the father and started crying.

In a second opinion sought by the High Court from the counsellor, the report stated that during interactions, the child had expressed discomfort in meeting his father or attending court regularly. The report recommended that a detailed assessment of the child over 8 to 12 weeks, during which time no physical or virtual contact should occur between the child and his father. The report also stated the appellant had resorted to threatening behaviour due to dissatisfaction with the counsellor's approach

Due to the counsellor's report and keeping in mind the tender age of the child, the Court observed that it would not be in the best interest of the child to grant interim custody to the appellant. It stated “These kinds of interactions can be worthwhile and fruitful only if the child is able to overcome his deep apprehensions in meeting the appellant. In our view, perhaps some more time is required for the child to be comfortable in the presence of his father and interact with him.”

The Court observed that the appellant could meet his son twice a month in the presence of the counsellor at Dwarka Court as directed by the Family Court and confirmed by the Coordinate Bench.

Case title: Amit Sharma vs. Sugandha Sharma

Citation: 2024 LiveLaw (Del) 766