Supreme Court: The bench of AM Khanwilkar and JB Pardiwala*, JJ, in a matter relating to custody of two minor children, has advised the parents to respect each other and resolve the conflict respectfully, to give the children ‘a good foundation for the conflict that may, God forbid, arise in their own lives.’
Stating that the two minor children, aged 13 and 9, in the case at hand are watching their parents very closely, the Court observed,
“The parties should try to do their best to remain relaxed and focused. It is critical to maintain boundaries between the adult problems and children. It is of utmost interest to protect the innocence of children and allow them to remain children. They must not be burdened by any adult problem. Minor children do not have the coping skills or the intellectual ability to understand any issues like the financial constraints, adult relationship issues or their parents unhappiness.”
The Court also explained the Doctrine of Parental Alienation Syndrome, i.e. the efforts made by one parent to get the child to give up his/her own positive perceptions of the other parent and get him/her to agree with their own viewpoint. It has two psychological destructive effects: (1) It puts the child in the middle of a loyalty contest, which cannot possibly won by any parent; (2) It makes the child to assess the reality, thereby requiring to blame either parent who is supposedly deprived of positive traits. The Court, hence, observed that the intent of the court should be to circumvent such ill effects.
The Court was deciding the case where, after the relationship between the parents went sour, the father took both the minor children away from the mother. Here are some key facts necessary to understand the case:
- Daughter was born in India but travelled to the USA when her father got a Job there. Son was born in the USA and is hence, a natural citizen of the USA.
- When the father lost his job, the children stayed with the mother who worked on getting a degree. She eventually became a resident of the USA holding H1B visa and sponsorship. She has a good job and earns a handsome salary and has the resources to provide for a comfortable life to her children in the USA.
- Despite several interventions by Courts and Authorities, the father did not allow the mother to meet the children unsupervised. He even alleged that the mother was mentally ill and was hence, not fit to take care of the children.
- A shared parenting plan was arrived at between the parties vide order dated 12th May 2021 passed by the Court of Common Pleas, Division of Domestic Relations, Cuyahoga County, Ohio, giving both the parties joint custody of their children. The visitation schedule was clearly laid down. The parties agreed to not relocate without the consent of the other party and without the Court’s permission by way of a 60 day prior notice and the passports of the children were to stay in alternation with the non-custodian parent while the children were in the custody of the other parent.
- A separation agreement was also entered upon between the parties dated 27th July 2021.
- On 28th July 2021, the father intimated the US Court that he would like to take his minor children on a vacation to India. Since the travel itinerary shared by him was such that the children would miss their school by a week, the mother declined to accept it and requested the father to go to India for his vacation, and during that period, the kids would stay with their mother.
- On 16th August 2021, the father allegedly, took the children away from her house in her absence. The mother claimed that on the same night, she received a distress call from her minor daughter who informed her that her father was taking both of them to India on the 17th August 2021. However, as per the travel itinerary, the travel was to happen on 19th August 2021.
- The daughter again gave a distressed call to her mother from India pleading her to take her back to the USA.
- The shared parenting plan ultimately came to be terminated by the Court at Ohio vide order dated 9th February 2022 at the instance of the mother.
Children will have a better future in the USA
- Both the minor children are residents of the USA.
- The son is a natural citizen and the daughter is a permanent resident of the USA.
- Both the children have been brought up in the social and cultural milieu of the USA. They are accustomed to the lifestyle, language, customs, rules and regulations, etc. of that country.
- The children are residents of the USA. One of whom is a natural citizen and will have better future prospects if goes back to the USA.
- The minor daughter has a remarkable high IQ. She has been identified to be a gifted child. In such circumstances, both the minor children were admitted in a special school meant for children with such remarkably high IQ in the USA. Such schools in the USA are specialized in providing education to the gifted children which, ultimately, helps in the overall development of such children. The special education ultimately enhances the potential of such children. Both the children in the present case have better prospects of getting refined education that may ultimately enhance their potential they already possess and are already accustomed to and comfortable with.
- It is the fundamental right of the mother to have the company of her children and not to be deprived of the same without a reasonable cause.
- The allegations levelled by the father that the mother suffers from some mental illness appears to be absolutely wild and reckless.
- Father to travel to the USA immediately along with the children, preferably within two weeks.
- Once the two minor children reach the USA, it will be open for the mother to take care of her children.
- The father can stay back in the USA if he wants and if the laws of the country permit him to do so. But if he decides to come back to India, then the mother shall make both the minor children speak to their father on-line at least once every week.
- The Court also left it open for the parties to go back to the Court at Ohio and revive the shared parenting plan as was arrived at vide order dated 12th May 2021.
[Rajeswari Chandrasekhar Ganesh v. State of Tamil Nadu, 2022 SCC OnLine SC 885, decided on 14.07.2022]
*Judgment by: JB Pardiwala
For mother: Advocate Prabhjit Jauhar
 Shared parenting means the parents share the rights and responsibilities as provided for in a plan approved by the Court as to all or some of the aspects of the physical and legal care of their children. The mother and the father together, under a shared parenting agreement, are granted custody, care and control of the minor children until further order that may be passed by the Court subject to certain terms and conditions.