BENGALURU: Courts must stop viewing custody battles as a fight between parents and instead focus on the child’s emotional wellbeing, emphasised legal experts and judges at a session -- Parental custody of children: Orders regarding visitation rights and custody issues -- during the Southern Zone Regional Conference on ‘Family: The Basis of Indian Society’. The two-day event, organised by the Family Courts Committee and Supreme Court of India in association with High Court of Karnataka and Karnataka Judicial Academy, concluded on Sunday.
Judges from the high courts of Kerala, Tamil Nadu and Telangana and legal experts from Karnataka discussed how courts must adapt to the emotional world of a child, ensuring that custody arrangements are not just legally sound but also developmentally appropriate. They also raised concerns about the challenges posed by cross-border custody disputes, the lack of coordination between jurisdictions and the need for a uniform approach guided by the child’s best interests.
“Exclusion is an adult emotion that children are forced to experience when one parent is removed from their lives,” S Sushila, advocate, mediator and master trainer based in Bengaluru said. She criticised the current system of alternating custody or visitation, arguing that it often fails to consider how children experience conflict.
“For a child, the idea of family includes anyone they are emotionally attached to — not just the biological parents. The court must enter the child’s world with empathy,” she stressed. Sushila also highlighted that the courts should pass orders that are “acceptable, enjoyable and secure” for children rather than merely balancing parental rights.
Drawing on developmental theories by Swiss Psychologist Jean Piaget and Lev Vygotsky, Dr Justice G Jayachandran, Madras High Court judge and member of its Family Courts Committee, and Dr Justice Kauser Edappagath, Kerala High Court judge and its member of Family Courts Committee, who were chairing and co-chairing the event, highlighted how critical it is to understand how children process conflict and separation. They warned against mediation practices that puts pressure on children to make a choice between parents and mentioned that custody is not a tug-of-war, it is about the child’s right to feel emotionally safe and have access to both parents.
Justice Moushumi Bhattacharya, Telangana High Court judge and chairperson of the Family Courts Committee, highlighted the complexity of international custody disputes. Sharing a case involving India, the UK and the US, she pointed to the confusion that arises when multiple jurisdictions operate in isolation.
“We must avoid rigid application of the law and instead adopt a sensitive, case-by-case approach. Article 3 of the UN Convention on the Rights of the Child, often referred to as the “best interests of the child” principle, must remain central,” she said.