Overnight Custody : The Kerala High Court on Monday 3 March 2016 in Biji Vs. Vijil has held that grandparents have the right to get interim custody of their grandchildren if the natural father of the child is dead.
A Division Bench comprising Justice C K Abdul Rehim and Justice Shaji P Chaly observed that a visitation right or temporary custody can include overnight custody for short periods also.
We are conscious that, in an appeal filed challenging the grant of visitation rights, we are proposing to make radical changes.
the bench said.
The observation was made while considering a petition challenging a Family Court order allowing grandparents of a little girl, whose father died in a accident, to have her custody.
The Family Court also granted visitation rights to grandparents of the child. Apart from that, three days of interim custody was granted during the ‘Onam’ and ‘Christmas’ holidays, and ten days custody during the mid-summer vacation.
Aggrieved by the grant of interim overnight custody to the grand parents, the appellant (wife/mother) had approached the High Court.
The appellant contended that, the grand parents, are entitled only for a visitation right and they are not entitled to get interim overnight custody of the child, as ordered by the Family Court.
A further contented that visitation contemplated would mean the grandparents visiting the child at the child’s place and not the child visiting the grandparents at the grandparents place.
According to the counsel, the ‘visitation rights’ takes in only a visit to the child, which will not include overnight custody for any periods. The term ‘visit’ means just a visit to the child and not the child visiting the grandparents at their house.
Further, the grandparents were allowed to have custody of the child on the death anniversary of their son, and also on the third Sunday after Easter.
The father of the minor child had died in a road accident when a petition filed by him, seeking permanent custody of the child, was pending before the Family Court in Thrissur.
Later, parents of the deceased were impleaded in the case, and the Family Court arrived at the conclusion that taking into account the age and sex of the child, it needed inseparable company of its mother.
As the natural guardian of the child is dead, the mother is eligible to be declared as its natural guardian.
The High Court Court granted interim day-time custody and overnight custody of the child to the grandparents, with conditions.
The minor girl child was aged only 11 months at the time of filing the application in the year 2012 and at present the child is only at the most 4 years old.
The Court opined that, if the custody of the child is handed over to the grandparents all on a sudden, without there being any acquaintance and intimacy built up with the grandparents, it may not be conducive for the child to be in their custody and to spend time at the house of the grandparents, that too on an overnight basis.
Creating such a situation may not be within the interest, welfare and well being of the minor child.
Therefore, the Court feels that overnight custody of the child can be stepped up in a slow pace and the day time custody of the child can be increased in a phased manner, which will enable the child to have more familiarity and acquaintance, and will enable the child to develop love, affection and intimacy with the grandparents.
Two main points for consideration before family Court
- Whether grand-parents are entitled to get permanent custody of their minor grand daughter from respondent/daughter-in-law?
- Who will be the proper custodian of the minor child?
Interim custody include Overnight Custody
There is no prohibition under the Guardian and Wards Act enabling the grandparents to have interim custody of the child for temporary and short periods.
Visitation rights and interim custody include overnight custody and custody for temporary and short periods.
As per the traditions, custom and culture prevailing in the society, the child is entitled to enjoy its childhood along with grandparents and other close relatives.
The family traditions prevailing had proved that the children develop disciplined life by interacting and mingling with the grandparents, immediate relatives and elders of the family.
Whether the Family Court is vested with powers to provide overnight custody while granting visitation rights, even for short periods.
Term ‘visit’ means
In this regard a reference to the dictionary meaning would be beneficial, since the terms ‘visit’ or ‘visitation’ are not defined under the Guardian and Wards Act.
The ‘Chambers Concise Dictionary Deluxe Edition’ defines the word “visit” as to pay a call upon; to go to for sightseeing; to go to stay with; to make a stay; to be in the habit of seeing or meeting each other at home; a short stay etc. etc.
The ‘Black’s Law Dictionary’ provides different concepts to the term “visitation” and has recognized various kinds of visitation rights such as
- (i) visitation;
- (ii) grandparent visitation;
- (iii) restricted visitation;
- (iv) steppedup visitation; and
- (v) supervised visitation.
The word ‘visitation’ is defined there with specific reference to Family Law, to a non-custodial parents period of access to child and also termed as ‘parental access’ and further defined as ‘parenting time’, residential time.
A grandparent’s visitation is defined as a grandparent’s court approved access to a grandchild, ‘restricted and supervised visitation’ are defined as visitation under the orders of court in which a parent may visit the child or children only in the presence of some other individual and that a court may order supervised visitation when the visiting parent is known or believed to be prone to physical abuse, sexual abuse or violence, ‘stepped-up visitation’ means a visitation under the orders of a court for a parent who has been absent from child’s life, that begins on a very limited basis and increases as the child comes to know the parent.
Therefore, in legal parlance the grandparents’ visitation of the child is well-recognized and the same takes in overnight custody also for short periods.
Tradition and Culture
As per our Indian tradition and culture the children are allowed to live with their grandparents, immediate elder members of the family and relatives during festival seasons and other holidays.
The children are also allowed to attend family functions, festivals conducted in religious institutions etc. in the maternal as well as paternal houses, in order to understand the cultural and traditional backgrounds that are prevailing in the family and community, irrespective of religious and cultural differences.
This is done with the prime intention of bringing up the child as a social being and with the objective and intention of making them responsible citizens to yield fruitful results to the family, society and the nation at large.
It is also common and well-settled that the children may reside in the maternal and paternal houses along with grandparents, whenever such occasion demands.
This will help the children to have larger perspective and broader minds which are also necessary for their welfare and wellbeing.
It is also well settled that the children learn many things from their grandparents and they hear many stories which are termed as ‘grandpa’s and grandma’s stories’.
The grandparents also enjoy company of the children in their old age which will be helpful to their old age life and the same has many dimensions and significance, correspondingly.
The courts while considering custody of children/visitation sought for by grandparents, should bear in mind such realities, while reckoning the circumstances conducive to the welfare of the child.
Case Law Reference
1. Sobhana Nair K.N. v. Shaji S.G. Nair’ [2016 (1) KHC 1 (DB)]
The questions considered therein was, whether due to death of mother the maternal grandmother is entitled to seek custody of children irrespective of the wellbeing and welfare of the minor children and whether the grandmother has any absolute legal right to insist that the minors should be brought to court premises in order to have visitation rights.
2. Sh. Gian Chand Gupta & Anr. v. Mrs. Nittu & Anr.’ [2011(4) Law Herald (P&H) 3410]
If custody of the children is granted to the grandparents the same can cause much confusion and furthering disputes between the living spouse and the grandparents.