In a recent child custody case, the Goa bench of the Bombay High Court stated that a child cannot be treated as a toy by parents in a custody battle and must be regarded as a human being, with their interests given paramount importance.
Equal Custody Time
Justice Bharat Deshpande made this observation while granting equal custody time to both the mother and the father of a child during the child’s summer vacation.
“It is necessary to note here that a child cannot be considered as a toy for the purpose of compensating parents for their lost visitation rights. The child has to be treated as a human being, and the most important aspect is the best interest of the child, which has to be of paramount importance,” the judge remarked.
The order was passed in response to a plea filed by the mother seeking to quash the family court’s May 8 order, which had granted seven weeks of custody to the father and five weeks to the mother.
The parties involved were US citizens, and their marriage took place in California. Their child was born in February 2019 in Paris. However, relations between the couple soon soured, and the father brought the child to Goa after a court in California granted him custody in an ex-parte order.
Subsequently, the mother also reached India, and the estranged couple filed custody proceedings before the family court in Mapusa. In its order, the High Court noted that it had modified a family court’s June 2023 order in October 2023, granting visitation rights to the father while upholding the child’s custody with the mother. However, the father could not avail of the visitation rights due to the child’s ill health.
Family Court’s Initial Decision
The father then filed another application before the family court at Mapusa, seeking custody of the child during the school vacation. The family court, in an order passed on May 8 this year, noted that the father could not avail visitation rights due to the child’s ill health. Therefore, it granted him seven weeks of custody of the child during the summer break while granting only five weeks to the mother. The mother then moved the High Court against this decision.
The High Court refused to accept the father’s contention that lost visitation rights could be compensated and that the family court had rightly granted more time to him. The judge stated that the family court’s order granting seven weeks of custody to the father was against the best interest of the 5-year-old child.
The paramount interest of the child needs to be considered, along with the fact that he is entitled to stay with both parents during the vacation period, the single judge opined.
Hence, the Court ruled that it would be appropriate to equally divide the vacation period among the parents. Consequently, the Court held that the 11-week vacation should be divided equally between the mother and father. Therefore, it granted five weeks of custody to each parent.
