This Article has been written by Ms. Shilpi Sharma, a 2nd year student of Lloyd Law College, Greater Noida, Uttar Pradesh.

 

The term “child relocation” describes the act of removing a child from the custody of a different parent as a result of a legally sanctioned divorce or separation between the child’s parents for any reason. Following a separation, the minor child is usually placed under the custody of the mother, with the father granted periodic visitation rights, or vice versa. The child is typically relocated for a variety of reasons, such as better employment or educational opportunities, health concerns, a better lifestyle, the desire to form new relationships, or to keep the child out of the custody dispute parent’s jurisdiction.

 

Challenges resulting from relocation Relocation is primarily related to family law disputes in which one parent who is granted custody of the child chooses to move, decreasing the likelihood that the other parent, who is only permitted to see the child occasionally, will be able to afford the costs of raising the child abroad, barring an order from a court of competent jurisdiction. In these situations, the father is typically the parent facing these challenges. Other concerns pertaining to child relocation include: the child’s desire to live with the non-custodial parent as they get older, In situations where a child struggles to adjust to a new school, setting, household, or community, When the custodial parent remarries and their new spouse mistreats the child, the child may suffer abuse. There is no one else to care for the child while the parent is incarcerated. when one of the custodial parents becomes ill or passes away. An additional concern associated with relocation is the uneasy child, who finds it hard to adjust to a new home due to changes in housing, food, weather, neighbourhood, etc.

 

When the child grows up, in addition to experiencing discrimination, he or she also lacks tradition, culture, etc. International agreement on the relocation of children The Hague Convention on the Civil Aspects of International Child Abduction 1980 is the main body of international legal jurisprudence pertaining to child relocation. Its purpose is to safeguard children from the damaging consequences of unjust removal or detention, without the need for a court order or legal enforceability. In order to enforce the Hague Convention, both the state from which the child was removed and the state where the child has been living must be signatory members. The Convention reserves precedents for the restoration of children who are victims of wrongful removal in any contracting state. Recompense granted by the Hague Convention States that have ratified the Hague Convention and acknowledged its applicability are the only ones authorized to use it. The principal goal of the convention is to restore a child who was unjustly taken from the state in which they should have been living. 

 

A concerned party may start the process by filing a case in the local court of law. The court will then need to ascertain whether the nation where the child was removed from and the nation where the court is located have both ratified the aforementioned convention. The competent court may issue the required directives for returning the child to the nation if it is largely satisfied with the convention’s legal jurisdiction.

 

A synopsis of the 1999 case K v. K The conflict first arose in the United States of America, where the parties, in this case, divorced amicably. The mother, who is the respondent in this case, was awarded custody of the child, while the father, who is the applicant, was allowed frequent visits to the child with permission from the mother. The respondent halted the regular meetings after the applicant allegedly committed an act of abuse while visiting the child. The applicant filed a complaint in York County Family Court against the respondent’s actions; however, the respondent never appeared in court and eventually departed the nation with her child. After locating the respondent and the child in Cape Town, South Africa, the applicant filed a lawsuit to have the child returned to the United States of America and placed under his custody. decision made by the court In this instance, the court determined that the mother was incompetent to be the child’s guardian because she had willfully avoided going to court in the United States. The respondent was ordered to give the court the required paperwork and return the minor child to the jurisdiction of York County Family Court in South Carolina.

 

The court determined that in the child’s “best interests,” the court of habitual residence—in this case, the United States of America—would be the most appropriate body to issue orders regarding his future custody due to the child’s unique circumstances. The Hague Convention on the Civil Aspects of International Child Abduction’s Article 35 was also ruled to be irrelevant in this case because the incident occurred a year before the convention’s effective date in South Africa. The convention is only relevant when both the state from which the child was abducted and the state where the child was taken accept its retrospective effect. In addition, the court decided that, under common law, the minor child’s best interests should be the court’s first consideration when using its discretion as the child’s upper guardian. Furthermore, in all matters pertaining to children in South Africa, the “best interest of the child” is protected by both international and constitutional law. The arguments made by each party in the case Both parties asserted different aspects of the 1980 Hague Convention on the Civil Aspects of International Child Abduction during the legal proceedings. The Hague Convention on the Civil Aspects of International Child Abduction Act, 72 of 1996, established the Hague Convention in South Africa.

 

The applicant referred the court to Section 39 of the Constitution of the Republic of South Africa, arguing that the principles underlying the Hague Convention should be taken into consideration by the court when applying the “best interests of the child” principle in this case, both under common law and the Constitution. Additionally, the applicant claimed that because the respondent purposefully avoided court appearances and committed adultery prior to the parties’ divorce, she is not a responsible mother. Respondent claimed that because the applicant has a history of drug abuse and criminal activity, and because she had abused her during one of their regular meetings with the child, custody should not be granted to the applicant in the child’s best interest.

 

When a parent wants to move to another country with their child, both the parent and the child need to know about the legal requirements and procedures. Moving overseas with a child is most frequently done as a result of a divorce or separation. For a number of reasons, such as 

embarking on a new relationship, returning home with the child from a country where they had been living with the other parent, or following a career opportunity abroad, a parent may move with their children. Therefore, it’s critical to comprehend the legal landscape at the intended new location.

 

When a parent wants to move to another country with their child, both the parent and the child need to know about the legal requirements and procedures. Moving overseas with a child is most frequently done as a result of a divorce or separation. For a number of reasons, such as embarking on a new relationship, returning home with the child from a country where they had been living with the other parent, or following a career opportunity abroad, a parent may move with their children. Therefore, it’s critical to comprehend the legal landscape at the intended new location.

 

SIGNIFICANCE OF THIS DEVELOPMENT :

Relocation can be understood as one parent’s right to remove their child from the other parent’s legal custody. Family law is not the legal framework that governs relocation in India. There is no law in India that controls a child’s travel, either domestically or abroad. Relocation is the right of one parent to take their child out of the other parent’s legal custody. Family law does not encompass the laws governing relocation in India. India does not have any laws governing the domestic or international travel of children. A guardian appointed by the court may not remove the child from the jurisdiction’s boundaries without the consent of the court, as per Section 26 of the Guardian and Wards Act, with the following exceptions: A “collector” is a court-appointed guardian who is responsible for managing the minor’s or child’s belongings. The chief officer overseeing a district’s tax administration and any person appointed by the state government to act as a collector in any locality or for any category of individuals are referred to as “collectors.” An estate plan or other legal document names the guardian.

 

IMPACT :

The underlying precepts that are upheld are as follows: 

• It is customary for a mother to be given custody of children under the age of five. 
• Other important considerations include the minor’s age, sex, and religion. 
• The proposed guardian’s capacity and character are evaluated, and the mother’s baseless charge is dropped. 
• Courts prefer to keep children together when there are several of them. 
• Consideration is given to the child’s intellectual, material, physical, moral, comfortable, and spiritual well-being. 
• This is not a hard and fast rule; the choice must be made with the child’s best interests in mind. 

 

• Older male children are typically given to fathers, whereas older female children are frequently given to moms. 
• A child’s opinion regarding a parent’s decision should be considered if the child is older than nine years old, as it is assumed that the child has sufficient comprehension and reasoned decision-making abilities. For these kinds of issues, Alternative Dispute Resolution (ADR) processes such as mediation and counselling are the most effective. Since they are economical rather than time-consuming or labor-intensive, they are especially effective at resolving family disputes.

 

CASE LAWS :

Elizabeth Dinshaw v. Arvand M Dinshaw & Anr. (1987) : In this case, the Supreme Court of India held that the best interest and welfare of the minor child should be the primary consideration when determining custody, rather than the parties’ respective legal rights.

 

Jitender Arora v. Sukriti Arora (2017): This case is the result of a custody dispute between the mother and father of a fifteen-year-old girl who was sent to India. The mother filed a writ of habeas corpus with the Supreme Court. The Supreme Court denied the mother’s request for custody of her daughter after considering the child’s wellbeing and asking the young child about her preferences. The girl expressed her desire to be with her father firmly and unwaveringly, and it was determined that she was old enough to make her own decisions.

 

ANALYSIS :

When it comes to child relocation, child removal from one parent’s custody by another, or issues involving international child abduction, there are no laws or regulations in India that need to be observed. The child’s security and best interests are the only factors taken into consideration when making decisions under the precedent-based laws. India is free to choose as it pleases and is unlikely to sign any conventions that could harm the rights of women who have fled abusive marriages. India is not a signatory to any conventions. In contrast, the Ministry of Women and Child Development has decided to create a domestic law to address the civil aspects of international abduction. The Ministry of Justice responded to the Law Commission’s 218th Report on the need to ratify the HCCH Convention in 2016 by creating a bill titled Civil Aspects of International Child Abduction. In general, the 2016 Bill adhered to and replicated the provisions of the HCCH conventions. Although there is currently no comprehensive legislation in India, the ministry has set up a mediation unit to deal with these kinds of disputes. According to Section 13(1)(b), a parent must obtain the court’s consent before permanently removing a child from the jurisdiction. The Guardian of Minors Act of 1971’s Section 1 previously declared that the protection of the minor came first.

 

General (secular) and party-specific laws in India regulate parents’ rights and obligations as well as their interactions with their children. The Guardian and Ward Act of 1890 is one of these acts. A general statute known as the Guardian and Wards Act of 1890 (GWA) establishes the legal framework surrounding a child’s upbringing. This is a secular law that applies to everyone, regardless of cultural or religious background. Under this Act, a “guardian” is in charge of raising a minor child or ward. Anybody under the age of eighteen is considered a minor. A person who has not reached majority, or 18 years of age, under the terms of the Indian Majority Act 1875 is referred to as a “minor” under the GWA. One parent may apply under Section 7 for designation as “guardian” in the event of a dispute between the parents. The courts make use of this authority to evaluate the welfare of the child and to ensure that the GWA’s Section 17 is followed. A redressal mechanism is available in India through the GWA and other family-related personal laws.

 

Following the child’s parents’ judicial separation or divorce, the question of child custody becomes relevant. Different laws control who gets custody of the child. The best interests of the child are taken into consideration by the court when deciding who will get custody of the child. The welfare of the child rests with the parent who has been granted custodial rights. If the courts think it appropriate, visitation rights are granted to the noncustodial parent. In charge: Usually, custody refers to guardianship. Custody refers to a parent’s legal right to care for their child in the event of a divorce or judicial separation. If the child is under eighteen, the court awards the parent custody and legal responsibility for raising the child. The parent who is awarded custody is in charge of the child’s upbringing—including emotional, physical, and mental development—as well as their financial security and general well-being. They also need to receive medical attention. When determining who will get custody, the court takes the child’s best interests into account. The non-custodial parent’s legal entitlement is limited to child visitation. Indian Custody Types: Physical Residency: When a parent has physical custody, it indicates that they are the child’s primary carers and are in charge of seeing to their emotional, physical, and educational needs. Joint Custody: When parents have joint custody, they share the child’s decision-making authority. Special Guardianship: The child’s biological parents do not have legal custody rights; instead, a guardian or other person does.

 

Visitation Rights of Father and Mother pre-divorce:

The parent of a minor who has not been granted custody for any reason is granted visitation rights by the court. Nonetheless, the awarding of visitation rights takes into account the child’s proximity to the noncustodial parent as well as the child’s welfare. Since the mother typically receives custody of the child, the father’s visitation rights are generally better known in India. Noncustodial parents, such as the minor’s mother or father, grandparents, and so on, may be awarded these rights.

Visitation Rights of Father and Mother post-divorce:

Court orders pertaining to the present custody dispute grant visitation rights. In order to guarantee the child’s proper growth and welfare, the court must ensure that the child has regular contact with both parents. During the proceeding, the court asserts its right to choose the appropriate time, venue, and means of enforcing these rights. The noncustodial parent is required to adhere to the predetermined plan. The noncustodial parent is in charge of the child’s safety and well-being during the visits. In addition, the court looks into a number of factors when deciding a noncustodial parent’s visitation rights, including: The child’s age weekends, official holidays, and so forth. 

 

Moving: The custodial parent has to give notice to the noncustodial parent and the court, providing the new contact information, address, and explanation for the move, along with a suggested visitation schedule. In addition to having the option to petition for a change of custody, the noncustodial parent is entitled to object to any such relocation. After a divorce, do both parents retain custody of the minor child? Joint custody is what happens when a couple shares custody of their minor child following a divorce. Since the laws have not addressed joint custody, courts are beginning to recognise it as a result of evolving legal trends and novel approaches. With this change, one spouse is speaking out against the other and controlling the child completely.

 

The custodial parent has to give notice to the noncustodial parent and the court, providing the new contact information, address, and explanation for the move, along with a suggested visitation schedule. In addition to having the option to petition for a change of custody, the noncustodial parent is entitled to object to any such relocation. After a divorce, do both parents retain custody of the minor child? Joint custody is what happens when a couple shares custody of their minor child following a divorce. Since the laws have not addressed joint custody, courts are beginning to recognise it as a result of evolving legal trends and novel approaches. With this change, one spouse is speaking out against the other and controlling the child completely.

 

Visitation schedules can be adapted in a variety of creative ways to meet the needs of a family and provide the best possible care for a child since they are as unique as the families who apply for them. A child’s situation plan that is in their best interests typically includes the following, taking into account their preferences: Contact information for the non-custodial parent. splitting up the holidays so you can celebrate them with the kid. splitting the alternate years for birthday celebrations. meet with the child for a week or two off. splitting up weekend visits, like three-day weekends The way to deal with crises. Under joint custody, a minor child may reside with one custodial parent for a period of time and with the non-custodial parent for a different period of time. However, it should be noted that combined custody is still not fed by Indian Law.

 

Parents who do not have custody of the child are permitted to see them. The court may grant the following parties the right to see in addition to the custodial parent: the child’s grandparents Parent by birth (the one who does not receive custody) In response to the noncustodial parent’s outburst, the court may grant a visitation order, dictating the visiting location and time. The child’s welfare must come first when granting visitation rights, and the noncustodial parent’s close relationship with the child must be taken into consideration. Make sure the document outlining your visitation rights is clear and contains no ambiguous language. Mistakes to avoid when it comes to custody and visitation: When it comes to child and custody cases, you have to exercise caution because the decisions you make now may impact your future parental rights. When determining child custody and visitation rights, the court must consider the child’s best appeals, so you want to avoid giving them any reason to question your parenting abilities. Your parenting abilities may be questioned by the court if you behave in a thoughtless or rash manner. Steer clear of these behaviours, disagreements with your spouse, and unlawful activity as they could damage your reputation. In terms of what is best for the child’s character, judges learn to abide by de facto custody agreements. Therefore, you should refrain from granting your spouse de facto control over your child if you want custody.

 

Additionally, stay away from moving out as this could give your partner complete control. If you do such things, you might be charged with criminal kidnapping. In such circumstances, it is advisable to file a motion for a temporary custody order. If you have been the victim of domestic abuse, this law does not apply to you. In these situations, you have to leave with your kids and consult with an attorney to determine the best course of action going forward.

 

NGOs fighting for visitation rights: In India, a large number of NGOs work to assist grandparents and non-custodial parents in obtaining visitation rights through mediation or in court. Child Rights Foundation: Based in Mumbai, Maharashtra, the Child Rights foundation has dedicated much of its time to creating policy for individuals going through divorce. The Himachal Pradesh High Court State of Madhya Pradesh Mumbai has accepted their policies regarding child access and custody and instructed family courts to follow them during a divorce case. Child Rights Initiative for Shared Parenting: This innovative non-governmental organisation has several “branches,” or divisions, that handle various aspects of child custody. Their branch that deals with grandparents and child custody is one of them. The need for legislation to safeguard visitation rights has been championed by CRISP. After their child’s divorce, a number of elderly people have complained to the NGO about being cut off from their grandchildren. As a result, CRISP has asked for grandparents’ visitation rights and created a law to grant them.

 

Child custody in India is governed by the Guardians and Wards Act of 1890 and is based on personal laws. The other personal law regulations and customs can be abandoned if necessary; all that is required is for the control of a child to pursue their welfare.

 

While the child and parents have preferences, the court makes the final determination about the child’s custody. The Parents Patriae doctrine governs family courts in our nation. According to the principle, the child’s welfare must come first when the court makes a decision. The ability for the child to form bonds with both parents is why visitation rights are considered so important. It is advisable to speak with a family lawyer if you are having issues with your current parenting plan or if you are facing challenges with your visitation rights.

 

REFERENCES :

• Ipleaders
• Westlaws

• Judicateme

• Advocatekhoj