[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]
The law governing custody of children is closely linked with that of guardianship. Guardianship refers to a bundle of rights and powers that an adult has in relation to the person and property of a minor, while custody is a narrower concept relating to the upbringing and day-to-day care and control of the minor. The term “custody” is not defined in any Indian family law, whether secular or religious.
(ii) Hindu Law: It is to be noted that the following two Acts discussed under “Hindu Law” are applicable to any person who is a Hindu, Buddhist, Jaina or Sikh by religion.
(a) Hindu Minority and Guardianship Act, 1956: Classical Hindu law did not contain principles dealing with guardianship and custody of children. However, in modern statutory Hindu law, the Hindu Minority and Guardianship Act provides various provisions concerning the matters of guardianship and custody of minor Hindu children.
(b) Hindu Marriage Act, 1955: Section 26 of the Hindu Marriage Act authorises courts to pass interim orders in any proceeding under the Act, with respect to custody, maintenance and education of minor children, in consonance with their wishes. The Section also authorises courts to revoke, suspend or vary such interim orders passed previously.
(iii) Islamic Law: In Islamic law, the father is the natural guardian, but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty. The concept of Hizanat provides that, of all persons, the mother is the most suited to have the custody of her children up to a certain age, both during the marriage and after its dissolution. A mother cannot be deprived of this right unless she is disqualified because of apostasy or misconduct and her custody is found to be unfavorable to the welfare of the child.
(iv) Parsi and Christian Law: Under Section 49 of the Parsi Marriage and Divorce Act, 1936 and Section 41 of the Divorce Act, 1869, courts are authorised to issue interim orders for custody, maintenance and education of minor children in any proceeding under these Acts.
(v) Marriages registered under Special Marriage Act, 1954: This Act provides for a special form of marriage which can be taken advantage of by any person in India and by all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess. Couples who register their marriage under Special Marriage Act can take resort to Section 38 of the Act for the purposes of custody of children. Section 38 empowers the district court to pass interim orders during pendency of proceedings and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible.
The paramount consideration
While taking a decision regarding custody or other issues pertaining to a child, “welfare of the child” is of paramount consideration, Sheoli Hati v. Somnath Das, (2019) 7 SCC 490.
It is not the welfare of the father, nor the welfare of the mother, that is the paramount consideration for the court. It is the welfare of the minor and of the minor alone which is the paramount consideration, Saraswatibai Shripad Vad v. Shripad Vasanji Vad, 1940 SCC OnLine Bom 77.
Principles in relation to custody of child
An order of custody of minor children either under the provisions of the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956 is required to be made by the court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the parent concerned to take care of the child are some of the relevant factors that have to be taken into account by the court while deciding the issue of custody of a minor, Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471 .
Object and purpose of the Guardians and Wards Act, 1890 is not merely physical custody of the minor but due protection of the rights of ward’s health, maintenance and education. In considering the question of welfare of minor, due regard has, of course, to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship, Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.
Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them, Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 .
Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy-duty is cast on the court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration, Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673.
The word “welfare” used in Section 13 of the Hindu Minority and Guardianship Act, 1956 has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases, Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor, Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698.
Even an interim order of custody in favour of the parent should not insulate the minor from the parental touch and influence of the other parent which is so very important for the healthy growth of the minor and the development of his personality, Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.
Before deciding the issue as to whether the custody should be given to the mother or the father or partially to one and partially to the other, the High Court must (a) take into account the wishes of the child concerned, and (b) assess the psychological impact, if any, on the change in custody after obtaining the opinion of a child psychiatrist or a child welfare worker. All this must be done in addition to ascertaining the comparative material welfare that the child/children may enjoy with either parent, Mamta v. Ashok Jagannath Bharuka, (2005) 12 SCC 452.
The principles laid down in proceedings under the Guardians and Wards Act, 1890 are equally applicable in dealing with the custody of a child under Section 26 of the Hindu Marriage Act, 1955, since in both the situations two things are common: the first, being orders relating to custody of a growing child and secondly, the paramount consideration of the welfare of the child. Such considerations are never static nor can they be squeezed in a straitjacket. Therefore, each case has to be dealt with on the basis of its peculiar facts, Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409.
It is not the “negative test” that the father is not “unfit” or disqualified to have custody of his son/daughter that is relevant, but the “positive test” that such custody would be in the welfare of the minor which is material and it is on that basis that the court should exercise the power to grant or refuse custody of a minor in favour of the father, the mother or any other guardian, Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413.
Twin objectives of the “welfare principle”
The welfare principle is aimed at serving twin objectives. In the first instance, it is to ensure that the child grows and develops in the best environment. The best interest of the child has been placed at the vanguard of family/custody disputes according to the optimal growth and development of the child and has primacy over other considerations. This right of the child is also based on individual dignity. The second justification behind the welfare principle is the public interest that stands served with the optimal growth of the children. Child-centric human rights jurisprudence that has been evolved over a period of time is founded on the principle that public good demands proper growth of the child, who are the future of the nation, Vivek Singh v. Romani Singh, (2017) 3 SCC 231.
Considerations governing grant of custody*
A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. The court has to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development, and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor, Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413.
The welfare of the child shall include various factors like ethical upbringing, economic well being of the guardian, child’s ordinary comfort, contentment, health, education, etc., Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42.
The crucial factors which have to be kept in mind by the courts for gauging the welfare of the children and equally for the parents can be, inter alia, delineated, such as (1) maturity and judgment; (2) mental stability; (3) ability to provide access to schools; (4) moral character; (5) ability to provide continuing involvement in the community; (6) financial sufficiency and last but not the least the factors involving relationship with the child, as opposed to characteristics of the parent as an individual, Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.
Issues common to all child custody disputes are: (a) continuity and quality of attachments, (b) preference, (c) parental alienation, (d) special needs of children, (e) education, (f) gender issues, (g) sibling relationships, (h) parents’ physical and mental health, (i) parents’ work schedules, (j) parents’ finances, (k) styles of parenting and discipline, (l) conflict resolution, (n) social support systems, (o) cultural and ethnic issues, (p) ethics and values and religion. Though the prevailing legal test is that of the ‘best interests of the child’, the Courts have also postulated the “least detrimental alternative” as an alternative judicial presumption, J. Selvan v. N. Punidha, 2007 SCC OnLine Mad 636.
Nature of custody orders
In a matter relating to the custody of a child, the Court must remember that it is dealing with a very sensitive issue in considering the nature of care and affection that a child requires in the growing stages of his or her life. That is why custody orders are always considered interlocutory orders and by the nature of such proceedings, custody orders cannot be made rigid and final. They are capable of being altered and moulded keeping in mind the needs of the child, Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409.
Guardianship or custody orders never attain permanence or finality and can be questioned at any time, by any person genuinely concerned for the minor child, if the child’s welfare is in peril, ABC v. State (NCT of Delhi), (2015) 10 SCC 1.
Estoppel not applicable to custody orders
Orders relating to custody of wards even when based on consent are liable to be varied by the court, if the welfare of the wards demands variation. Estoppel is not applicable to such orders, Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.
Where to file an application for custody of a child
Section 9 of the Guardians and Wards Act, 1890 makes a specific provision as regards the jurisdiction of the court to entertain a claim for grant of custody of a minor. The solitary test for determining the jurisdiction of the court under Section 9 is the “ordinary residence” of the minor. The expression used is “where the minor ordinarily resides”**. Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without an inquiry into the factual aspects of the controversy, Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 .
Interim custody / Temporary custody
Section 12 of the Guardians and Wards Act, 1890, empowers the Court to make orders for temporary custody and protection of the person or property of the minor.
While deciding the question of interim custody, the court must be guided by the welfare of the children since Section 12 empowers the court to make any order as it deems proper. The factors that must be kept in mind while determining the question of guardianship will apply with equal force to the question of interim custody. The strict parameters governing an interim injunction do not have full play in matters of custody, Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654.
Examination of the child is important
Examination by the court of the child in order to ascertain his wish as to with whom he wants to stay is important and desirable. Apart from the statutory provision in the form of sub-section (3) of Section 17 of the Guardians and Wards Act, 1890, such examination also helps the court in performing onerous duty, in exercising discretionary jurisdiction and in deciding the delicate issue of custody of a tender-aged child, Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 .
The word “custody” as used in Section 25 of the Guardians and Wards Act, 1890, ought to be held to include both actual and constructive custody. It was admitted that this interpretation could only be arrived at by some straining of the language but it was considered that it was justified because it would serve to carry out the intention of the Legislature in framing the Act, Mushaf Husain v. Mohd. Jawad, 1918 SCC OnLine Oudh JC 22.
Hindu Minority and Guardianship Act is in addition to the Guardian and Wards Act
Where no specific remedy is provided under the Hindu Minority and Guardianship Act, 1956, Section 2 and Section 5(b) of the Act makes the provisions of the Guardians and Wards Act applicable to such a case. Section 2 makes it clear that the Hindu Minority and Guardianship Act, 1956 is in addition to the Guardians and Wards Act, 1890, N. Palanisami v. A. Palaniswamy, 1998 SCC OnLine Mad 305.
Section 6 of the Hindu Minority and Guardianship Act, 1956, provides who is the natural guardian of a minor’s person in different cases. It enlists the natural guardian to be as:
(a) In the case of a boy or an unmarried girl — the father, and after him, the mother:
Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
(b) In the case of an illegitimate boy or an illegitimate unmarried girl — the mother, and after her, the father.
(c) In the case of a married girl — the husband:
However, it is to be remembered that in this section, the expressions “father” and “mother” do not include a stepfather and a stepmother.
Section 6(c) of the Hindu Minority and Guardianship Act stands impliedly repealed by the Prohibition of Child Marriage Act, 2006. Therefore, an adult male who marries a female child in violation of Section 3 of the Prohibition of Child Marriage Act shall not become the natural guardian of the female child, T. Sivakumar v. State of T.N., 2011 SCC OnLine Mad 1722.
Section 7 of the Hindu Minority and Guardianship Act, 1956, provides that natural guardianship of the adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother.
Custody of a Hindu child aged below 5 years
The Hindu Minority and Guardianship Act postulates that the custody of an infant or a tender-aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the likelihood of the welfare and interest of the child being undermined or jeopardised if the custody is retained by the mother. However, it is immediately clarified that Section 6(a) or for that matter any other provision including those contained in the Guardians and Wards Act, does not disqualify the mother to custody of the child even after the latter’s crossing the age of five years, Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318 .
Custody of children born outside wedlock (illegitimate child)
The preponderant position is that it is the unwed mother who possesses primary custodial and guardianship rights with regard to her children and that the father is not conferred with an equal position merely by virtue of his having fathered the child, ABC v. State (NCT of Delhi), (2015) 10 SCC 1.
The subtle difference between “custody” and “guardianship”
The appointment of a guardian and the custody of minors are two different aspects. There is a subtle distinction between the expression “Custody” and “Guardianship”. The concept of custody is related to physical control over a person or property. The concept of guardianship is akin to trusteeship. A guardian is a trustee in relation to the person of whom he is so appointed. The position of a guardian is more onerous than of a mere custodian. The custody maybe for short duration and for a specific purpose, Ramesh Tukaram Gadhwe v. Sumanbai Wamanrao Gondkar, 2007 SCC OnLine Bom 975.
The question of guardianship can be independent of and distinct from that of custody in the facts and circumstances of each case. As far as matters of custody are concerned, the court is not bound by the bar envisaged under Section 19 of the Guardians and Wards Act, 1890, Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654.
Writ of habeas corpus for restoration of custody
In child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law, Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42.
In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in the exercise of extraordinary jurisdiction on a petition for habeas corpus, Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42.
Effect of remarriage on custody
Second marriage of either of the parent is a factor to be considered while granting custodial rights, but second marriage does not disentitle him/her to the custody of his/her children, Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654.
A visitation order means an order establishing the visiting times for a non-custodial parent with his or her children. Although the non-custodial parent is responsible for the care of the child during visits, visitation differs from custody because non-custodial parent and child do not live together as a family unit. Visitation rights succinctly stated are distinct from custody or interim custody orders. Essentially they enable the parent who does not have interim custody to be able to meet the child without removing him/her from the custody of the other parent, Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318.
Parental Alienation Syndrome
As a result of the separation of parents, often the child falls in the middle of a contest of loyalty, which psychologists term as Parental Alienation Syndrome. It has at least two psychological destructive effects:
(i) First, it puts the child squarely in the middle of a contest of loyalty, a contest that cannot possibly be won. The child is asked to choose who is the preferred parent. No matter whatever is the choice, the child is very likely to end up feeling painfully guilty and confused. This is because in the overwhelming majority of cases, what the child wants and needs is to continue a relationship with each parent, as independent as possible from their own conflicts.
(ii) Second, the child is required to make a shift in assessing reality. One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parent’s distortions of reality.
A negative approach adopted by any parent is a significant factor weighing against him/her while considering grant of custody of the child by the court, Vivek Singh v. Romani Singh, (2017) 3 SCC 231.
Child abduction and Repatriation of child
If considerable time has elapsed between the removal of a child from the native country by any parent and steps are taken for repatriation by writ petitioner parent, the court would prefer an elaborate inquiry into all relevant aspects bearing on the child. Immediate restoration of the child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not otherwise. Unless continuance of the child in the country to which it has been removed, is unquestionably harmful, when judged on the touchstone of overall perspectives, perceptions, and practicabilities, it ought not to be dislodged and extricated from the environment and setting to which it has got adjusted for its well-being. Irrespective of summary or elaborate inquiry to be undertaken by a High Court, the welfare of the child must prevail as foremost overriding consideration, while pre-existing foreign court’s order must be taken as one of the factors for deciding the question of custody. Applicability of doctrines/principles of “comity of courts”, “intimate contact” and “closest concern” would depend upon various attendant facts and circumstances, keeping in mind primacy of welfare of the child, Prateek Gupta v. Shilpi Gupta, (2018) 2 SCC 309.
The consistent view of the Supreme Court is that if the child has been brought within India, the courts in India may conduct: (a) summary inquiry; or (b) an elaborate inquiry on the question of custody. In the case of a summary inquiry, the court may deem it fit to order the return of the child to the country from where he/she was removed unless such return is shown to be harmful to the child. In other words, even in the matter of a summary inquiry, it is open to the court to decline the relief of return of the child to the country from where he/she was removed irrespective of a pre-existing order of return of the child by a foreign court, Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.
Parens patriae jurisdiction of Indian courts
The duty of a court exercising its parens patriae jurisdiction as in cases involving custody of minor children is all the more onerous. Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter. Objectivity and not abject surrender is the mantra in such cases. But it is one thing to consider the foreign judgment to be conclusive and another to treat it as a factor or consideration that would go into the making of a final decision, Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.
Forum convenience and comity of courts
It is a settled legal position that the concept of forum convenience has no place in wardship jurisdiction. The principle of comity of courts cannot be given primacy or more weightage for deciding the matter of custody or for return of the child to the native State. The predominant criterion of the best interests and welfare of the minor outweighs or offsets the principle of comity of courts, Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.
Case of non-Convention countries
India is not yet a signatory to the Hague Convention of 1980. The courts in India, within whose jurisdiction the minor has been brought must “ordinarily” consider the question on merits, bearing in mind the welfare of the child as of paramount importance whilst reckoning the pre-existing order of the foreign court if any as only one of the factors and not get fixated therewith, Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.
While examining the issue the courts in India are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return, Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.
Questions to be considered by the Court
In a habeas corpus petition, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person. The next question to be considered by the High Court would be whether an order passed by the foreign court, directing the person having custody to produce the child before it, would render the custody of the minor unlawful? Indubitably, merely because such an order is passed by the foreign court, the custody of the minor would not become unlawful per se, Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.
Order of foreign court must yield to welfare of child
The order of the foreign court must yield to the welfare of the child. Further, the remedy of a writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court, Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.
Order of foreign court not a decisive factor
The fact that the other parent had already approached the foreign court or was successful in getting an order from the foreign court for the production of the child, cannot be a decisive factor. Similarly, the parent having custody of the minor has not resorted to any substantive proceeding for custody of the child, cannot whittle down the overarching principle of the best interests and welfare of the child to be considered by the Court, Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.
Jurisdiction of family court
Jurisdiction of Family Court qua petition for custody of minor children is non-existent when children are foreign citizens not ordinarily residing within the jurisdiction of the Family Court, Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.
Duty of the court
It is the duty of courts in all countries to see that a parent doing wrong by removing children out of the country does not gain any advantage by his or her wrongdoing. The case where child’s presence in India is the result of an illegal act of abduction, the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child in some school in Pune, Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 .
Supreme Court’s expression of deep concern
Divorce and custody battles can become a quagmire and it is heart-wrenching to see that the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents. The eventful agreement about custody may often be a reflection of the parents’ interests, rather than the child’s. The issue in a child custody dispute is what will become of the child, but ordinarily, the child is not a true participant in the process. While the best-interests principle requires that the primary focus be on the interests of the child, the child ordinarily does not define those interests himself nor does he have representation in the ordinary sense. The child’s psychological balance is deeply affected through the marital disruption and adjustment for changes is affected by the way parents continue positive relationships with their children. To focus on the child rights in case of parental conflict is a proactive step towards looking into this special situation demanding a specific articulation of child rights, Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.
Further Suggested Reading
- B.M. Gandhi — Family Law [Buy Here]
- Monica Sakhrani — Laws of Marriage and Divorce [Buy Here]
- Sumeet Malik — Family Law Manual [Buy Here]
- Surendra Malik & Sudeep Malik — Supreme Court on Family and Personal Laws [Buy Here]
Read also from SCC Online Blog
† Assistant Editor (Legal), EBC Publishing Pvt. Ltd.
 See B.M. Gandhi, Family Law, 2nd Edition, Volume 1, 2019, Eastern Book Company, Lucknow.
* For elaborate discussion, see case notes appended to EBC’s Guardians and Wards Act, 1890 (Bare Act), 2019 Edition.
 See Summary of Practice Parameters for Child Custody Evaluation published by American Academy of Child and Adolescent Psychiatry.
** For elaborate discussion on what is “ordinary residence”, see case notes appended to EBC’s Guardians and Wards Act, 1890 (Bare Act), 2019 Edition.
 The Parental Alienation Syndrome was originally described by Dr Richard Gardner in “Recent Developments in Child Custody Litigation”, The Academy Forum, Vol. 29, No. 2: The American Academy of Psychoanalysis, 1985.