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Report No. 257

C. Joint Custody

1.6.1 The face of child custody arrangements is changing. A number of countries across the globe have adopted a preference for shared parenting systems over sole custody as a post-divorce arrangement with respect to children. In the West, this trend has arisen largely in response to changing familial roles (male care takers taking on more child rearing responsibilities) as well psychological studies revealing that the involvement of both parents in child rearing is preferable to sole custody arrangements.15

Studies indicate that children generally fare better when parents share custody, and some jurisdictions in some countries have a legally prescribed presumption of joint custody.16 However, scholars and courts also caution that a presumption of joint custody can run contrary to the "best interests of the child" standard, especially in cases of domestic violence, where battered women may agree to joint custody out of fear of further violence.17

15 Glover, R. & Steel, C., Comparing the Effects on the Child of Post-Divorce Parenting Arrangements, Journal of Divorce, Volume 12 No. 2-3 (1989).

16 Several states in the U.S. have this. See, e.g., Idaho Code Ann. § 32-717B(4) ("Except as provided in sub-section (5), of this section, absent a preponderance of the evidence to the contrary, there shall be a presumption that joint custody is in the best interests of a minor child or children."); Minn. Stat. Ann. § 518.17(2)(b) ("The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child.").

17 Department of Legislative Services, Child Custody: Background and Policy Implications of a Joint Custody Presumption 6 (2011) ("Advocates for victims of domestic violence argue vehemently against placing a presumption of joint custody in the law.").

1.6.2 In November 2014, the Law Commission of India (hereinafter, the Commission) issued a Consultation Paper on Adopting a Shared Parenting System in India (hereinafter, the Consultation Paper).18 The Consultation Paper surveyed shared parenting systems in several countries, including the United States, Canada, Australia, the United Kingdom, South Africa, Netherlands, Thailand, Singapore, and Kenya. The systems studied in the Consultation Paper represented a wide variety of approaches to post-divorce custodial arrangements.

The Consultation Paper also reviewed the existing law in India regarding child custody, including the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956, as well as relevant Supreme Court and High Court decisions, and concluded that the law on custody in India had evolved to a point where it was appropriate to initiate a discussion on the idea of shared parenting. To that end, the Consultation Paper posed a set of questions pertaining to shared parenting and invited comments from the public.

18 The paper is available at
http://lawcommissionofindia.nic.in/Consultation%20Paper%20on%20Shared%20Parentage.pdf.



Reforms in Guardianship and Custody Laws in India Back




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