A child in a custody battle should not be treated as a toy by the parents but as a human being whose interests are paramount, the Goa bench of the Bombay High Court observed in a recent child custody case.
Justice Bharat Deshpande made this observation while granting equal custody time to both the mother and father during the child’s summer vacation.
“It is important to note that a child cannot be used as a toy to compensate parents for their lost visitation rights. A child must be treated as a human being, and the best interest of the child must be the primary concern,” Justice Deshpande stated in the June 14 order.
The order came in response to a plea by the mother seeking to overturn the family court’s May 8 order, which had granted seven weeks of custody to the father and five weeks to the mother.
The parents, both US citizens, were married in California, and the child was born in Paris in February 2019. However, their relationship soon deteriorated, and the father brought the child to Goa after a California court granted him custody in an ex-parte order.
The mother then arrived in India, and the estranged couple filed custody proceedings in the family court in Mapusa.
The High Court noted that in October 2023, it had modified a family court’s June 2023 order by granting visitation rights to the father while keeping the child’s custody with the mother. However, the father could not use the visitation rights due to the child’s ill health.
Subsequently, the father filed another application with the family court in Mapusa seeking custody during the school vacation. On May 8, the family court granted him seven weeks of custody due to his missed visitation time, while the mother received five weeks.
The mother appealed to the High Court, which rejected the father’s argument that lost visitation rights could be compensated with more custody time. The court found the family court’s decision to grant seven weeks to the father was not in the best interest of the 5-year-old child.
“For a child of such tender age, the presence of the mother is of utmost importance. However, the father’s rights to custody and visitation must also be considered,” the court stated.
The court ruled that the child’s best interest requires spending time with both parents during vacations. It ordered the vacation period to be divided equally, granting five weeks to each parent.
“Parents and the child should utilize the vacation to spend quality time with both the father and the mother, as well as their respective relatives, to maintain and strengthen family bonds. The child needs an opportunity to become acquainted with both sides of the family,” the order said.
Advocates A Agni, Adarsh Kothari, and J Shaikh represented the mother. Additional Government Pleader SP Munj represented the State, while Advocates C Collasso and V Poulekar represented the father.
