Report No. 257

I. Visitation

5.10.1 A number of jurisdictions have detailed visitation schedules that courts can use verbatim or modify as needed. These serve as templates so that the court does not have to start from scratch. Although these sample schedules vary across jurisdictions, there are some common themes. Generally, the schedule will depend on the child's age and the distance between the parents' homes.141

There must be a fair allocation of holidays, birthdays, and school vacations. A child must have time with his/her siblings and other important people in the child's life (grandparents, etc.). A parent's ability to care for a young child (especially infants) may be considered. Some basic options for scheduling parenting time are:

• The child alternates between the parents on a regular basis (e.g., daily, weekly, or monthly)
• The child lives with one parent when school is in session, and lives with the other parent during school vacations
• The child lives primarily with one parent, but visits the other parent on alternating weekends and 1-2 evenings per week (possibly including an overnight stay)

141 See Domestic Relations Committee, Indiana Parenting Time Guidelines (2013), §§ 2-4, available at
http://www.in.gov/judiciary/rules/parenting/#_Toc348614670;
State Court Administrative Office, Michigan Parenting Time Guideline, available at
http://courts.mi.gov/administration/scao/resources/documents/publications/manuals/focb/pt_gdlns.pdf;
Tata Institute of Social Sciences, Child Access & Custody Guidelines (2011), available at
http://www.mphc.in/pdf/ChildAccess-040312.pdf;
Colorado Department of Labour and Employment, Connecting With Kids (2004), available at
https://www.courts.state.co.us/userfiles/file/self_help/co_parenting_time_book2004.pdf (last visited April 2nd 2015).

5.10.2 Guidelines on scheduling have been provided by both Indiana and Michigan, which recommend that a child visit a non-custodial parent every other weekend and one weekday evening per week.142 The Indiana and Michigan guidelines also recommend dividing holidays (some are given to each parent) and then alternating them every year.143

However, some holidays (such as winter school vacation) are not alternated, but rather shared equally by the parents every year (i.e., the child spends the first half of the vacation with one parent, and the second half with the other).144 Both states also have additional guidelines for parents that live far away from each other145 and for young children.146

142 Indiana Parenting Time Guidelines at § 2(D)(1); Michigan Parenting Time Guideline at 7.

143 Indiana Parenting Time Guidelines at § 2(F)(2); Michigan Parenting Time Guideline at 7-9.

144 Indiana Parenting Time Guidelines at § 2(F)(2)(B). Michigan Parenting Time Guideline at 8-9.

145 Indiana Parenting Time Guidelines at § III; Michigan Parenting Time Guideline at 23-34.

146 Indiana Parenting Time Guidelines at § II(C) (discussing infants and toddlers); Michigan Parenting Time Guideline at 24-25.

5.10.3 In India, visitation rights have been defined by the Supreme Court in Roxann Sharma v. Arun Sharma MANU/SC/0165/2015 as "a non-custodial parents or grandparent's Court ordered privilege of spending time with a child or grandchild who is living with another person, usually the custodial parent." In a number of cases, the Supreme Court has granted visitation rights to the non-custodial parent and grandmothers, adoptive parents, maternal uncles and aunts. The prime consideration for visitation rights is the welfare of the child and the proximity of the child to the relation concerned.

5.10.4 For example, in Prabhat Kumar v. Himalini MANU/DE/0016/201 the Court held that the welfare of the child is determined by the benefit of care and affection the minor would receive in granting visiting rights to such family members of the hostile family. The onus of proving such benefit is upon the family member claiming the right. Another important consideration is the nearness of the child to the family member. Here, the Court upheld the order for interim visitation for the father and his relatives, due to a reinforced relationship between the child and father on account of regular visits ordered by the guardianship Judge.

5.10.5 The Commission believes it is necessary and useful to lay down broad guidelines on visitation rights, such that they are conducive to the welfare of the child, and to ensure that both parents are able to spend time with the child.