Ensuring Equality in Child Custody Litigation Through Equally Balanced Visitation Rights

ENSURING EQUALITY IN CHILD CUSTODY ENSURING EQUALITY IN CHILD CUSTODY LITIGATION THROUGH EQUALLY BALANCED VISITATION RIGHTS By Fahad Ahmad Siddiqi, Advocate1 In Pakistan, the Constitution safeguards the rights of citizens that they are to be dealt with equal protection of the law with the further explanation that no person shall be subjected to any action that could be harmful to life, liberty, body, repute, or property except as provided by law.2 This means that no individual shall be subjected to actions detrimental to their life, freedom, body, repute, or possessions except as prescribed by law.3 The Constitution of Islamic Republic of Pakistan, 1973 emphasizes that all actions taken by authorities must be lawful, and no statutory authority can act contrary to the law, misapply it, or abuse power. Furthermore, Article 10-A ensures that every individual has the right to a Fair and impartial legal proceedings in the determination of their civil rights and obligations or in any criminal proceedings against them. This underscores the importance of upholding the principles of Impartiality, justice, and adherence to established procedures in all legal proceedings, including guardianship and child custody cases. Article 10-A of the Constitution4 prescribes duty of Courts to deal with everyone in accordance with law. Throughout the judicial hierarchy, courts must never forget that while dealing with matters of life, freedom, body, reputation, or property of all citizens shall be treated in accordance with the law, and anyone appearing before a judicial forum is guaranteed a just and equitable proceeding to determine their civil entitlements and responsibilities, as well as any criminal allegations against them, ensuring a fair and impartial adjudication of their rights and obligations5, thus growing the scope of Article 4. Substantive due procedure guarantees that lawmaking is analyzed to defend the constitutional freedoms of people. Besides, the law couched in Article 10-A extends beyond customary judicial trials, necessitating fairness in all forums that regulate an individual's rights. This means that anybody or mechanism that decides on a person's rights must stick to the principles of equality and due process. Pursuant to Section 24-A of the General Clauses Act 1897. any individual or body conferred with the power to issue orders or directions under a statutory enactment must exercise this authority in a style that is rational, reasonable, and impartial, aligning with the original purpose of the enactment. Moreover, it is imperious for them to provide a justification for their decisions, either in part or in full, as deemed essential or appropriate, when issuing orders or directions. Whereas in guardianship matters. Courts exercise in loco parentis6 authority, prioritizing the minor's welfare. To achieve this. Courts have unfettered powers, which must be exercised in deciding applications for interim custody of the minor children. Hon'ble Lahore High Court has established in Umar Farooq v. Khushbakht Mirza7 that Parents engaged in a custody battle. particularly fathers, have the natural right to seek visitation with the child. Fathers should not only contribute in the minor's nurturing but also develop affection, attachment, and understanding with them8. However, when Non-Custodial Parents submit applications to the Guardian seeking interim physical custody of their minor children pending the final decision in the custody cases. These applications are frequently dismissed on the grounds of being premature, thereby denying non-custodial fathers interim custody of their children during the ongoing litigation process against the grant of a schedule comprising of restricted meetings to twice a month, two hours per session, within court premises, without providing valid reasoning for such limitations. Although the primary consideration in child custody disputes is the best interests of the minor. Pakistani Family Guardian Courts frequently curtail the child's fundamental rights of free and frequent interaction with his biological parent without providing justification. This prevailing practice violates the established legal principle under the provisions of General Clauses Act 1897, which mandates that the Courts provide valid reasons for limiting access of minor children towards their non-custodial parents. In the context of custody cases, this means that Courts should explain why they restrict a minor's access to non-custodial parents to a schedule comprising of a meagre two hours meeting once or twice in a month and that too to be held within court premises. Meanwhile this approach aims to strike a balance between the mother's custody rights and the child's need for a relationship with the non-custodial father, the restrictions often appear excessive and unjustified, potentially depriving the child of meaningful contact with the non-custodial parent. It was observed that guardianship and family courts are extremely stringent regarding the temporary visitation rights of non-custodial parents with their children. Surprisingly, the non-custodial parent is granted an interim visitation schedule in the vast majority of cases, with access to the courthouse for two hours once per month. For many decades, such visitation orders have been the norm in Pakistan's guardian courts, lo put it another way, the "template" for visitation orders in guardian courts is "once or relatively rare twice in a month for two hours in court premises. On a weekly basis, every Saturday, more than 100 minor children are produced in the court premises, in almost all major cities of Pakistan to the designated visitation area, where they have a brief two-hour interaction with their non-custodial parents. This court visitation takes place usually in a confined space, comprising one or two small rooms, each measuring 16 feet by 14 feet. In addition, it is important to note that the court visitation area frequently lacks basic amenities for the minor children who come there every week to meet with their parents. As a result, non-custodial parents are forced to sit on the floor and interact with their children. In addition, the non-custodial parent was frequently prevented from meeting their children in retaliation by manipulating the flawed court systems. It is very simple to delay the proceedings by filing frivolous applications, appeals, and appeals of orders to higher courts. Similar delaying tactics prevent thousands of children from meeting their non-custodial parent for months or even years. It is important to keep in mind that child custody cases are very different from regular civil cases. The type of litigation in which "justice delayed is justice denied" is clearly demonstrated by the custody battle. The mind of a child is comparable to a commodity that can be lost. It is simple to change an innocent mind. Due to the constant brain poisoning, estrangement, and distance practiced by the custodial parent and his or her family upon the innocent mind of the minor child, children begin to forget and, in many instances, dislike the non-custodial parent, who used to be extremely dear and loved, within months. This condition is known as "Parental Alienation." or "PA" by psychiatrists. In Pakistan, the right to a fair trial is a cornerstone of the justice system, and the principle of due process is essential for ensuring a fair trial. Since the introduction of Article 10-A into the Constitution, upholding due process assumes greater importance. Any orders passed in violation of due process are considered mill and void In line with this observation by the Apes Court of Pakistan, Guardian courts have a constitutional and statutory duty to provide valid reasons when restricting the fundamental rights of minor children towards their non-custodial parents. However, it is striking that non-custodial parents are often denied access to their children, with restrictions imposed on their visitation rights, limited to just two hours twice a month within court premises, without any justification or explanation for dismissing their applications under Section 12 of the Act, 1890. The Family Courts Act of 1964's schedule stipulates that a non-custodial parent has the right to request visitation rights, strangely, the current regulations pertaining to Visitation Rights are hazy and do not provide precise guidelines for the family and guardian courts regarding the appropriate duration and location of these visitation rights, resulting in confusion and inconsistent practices. It is imperative for the Guardian and Family Courts to chalk out visitation schedules that balance both parents' involvement in their child's life, including Parents presence in significant events and activities in a child's life following parental separation, involved in child custody litigation. The primary objective is to ensure the child maintains a strong, loving connection with their extended paternal relatives, allowing them to demonstrate love and affection. Overnight stays can be a positive experience, but their appropriateness must be assessed based on the child's age, needs, and individual temperament. For instance, very young children may require alternative arrangements. while older children, like children over 5 years, may be considered eligible for the grant of frequent overnight stays. When drawing out visitation schedules, Our Family Justice System must deliberate each case's unique facts, circumventing one-size-fits-all approaches. Overnight stays ought to be the norm, unless reliable and cogent evidence is produced to establish that an exception is necessary. This approach safeguards consistency and fairness, while allowing for elasticity in exceptional cases, emphasizing the minor's wellbeing and individual needs. By doing so, the family justice system prevailing in Pakistan can ensure a fair and sensible approach that weighs the minor's welfare, including but not limited to factors such as the age of the child, the home environment of the non-custodial parent, availability of time with the non-custodial parent and relationship of the minor with his extended non-custodial family Provisions of Section 12(2) in the Guardians and Wards Act, 1890 also bring together a vital requirement, providing a needed check on the exercise of discretion, requiring special consideration for female minors when appearing in court for meetings with their non-custodial parents, thereby imposing a conditional restraint on the exercise of jurisdiction in such cases. A perfunctory inspection of Section 12(2) reveals that special precaution and restraint are needed when female minors appear in court to interact their non-custodial fathers. This caution is further secured by Article 149, which emphasizes the right to privacy. Therefore, necessitating female minors to meet their non-custodial fathers in a swarming court premises, surrounded by 100-150 strangers, constitutes a violation of their privacy rights. While supervised court meetings with non-custodial fathers may offer advantages over home visits, it's essential to acknowledge that individuals including minor children especially female children have a right to privacy beyond their personal residence, which must be respected and safeguarded in all settings. In other words, a person's dignity and privacy are inviolable, regardless of location. The concept of human dignity remains largely unexplored in prevailing child custody jurisprudence: Courts often invoke provisions of Article 14 of the Constitution in cases involving torture, privacy, and right to life. its application is scarce in other critical areas that impact human dignity. These include grant of appropriate at home visitation rights, shared parenting, appropriate contact denial, parental alienation and inordinate delays in conclusion of family trials etc. It's crucial to recognize the significance of human dignity in our legal dialogue, ensuring that every individual's worth and respect are prioritized especially during pendency of custody litigation. We need to introduce the concept of human dignity in our family justice system as well, valuing non-custodial parent's worth and respect. This will help us address social and legal issues. Our courts need to interpret Article 14 more generously, putting human dignity at the heart of fundamental rights. It is significant to understand that a right to life not only comprises of one's own life but also the life, freedom and happiness of one's minor kids Depriving non-custodial parents10, the right to the company of his or her minor children merely because of separation with his spouse is as simple a disadvantage and a fate worse than death, robbing them of a meaningful existence. It is further reiterated here that the right of a child to maintain a relationship with their non-custodial parent (usually the father) must be upheld during child custody litigation before a Guardian Court at an interim stage. It is vital to avoid imposing prolonged restrictions on a child's ability to intermingle with their biological non-custodial parent. Giving directions to custodial parents to produce the child in the court premises for the purposes of meeting with his or her non-custodial parent constitutes an unwarranted check on the human rights and dignity of the child in the first instance and of the non-custodial parent in the second. It is indispensable to appreciate that a child has the fundamental right to receive love, affection, and care from both their mother and father. Moreover, it is a vital right of both the child and the non-custodial parent (typically fathers) to have their self-esteem and privacy respected, as enshrined in Article 14 of the Constitution. The Hon'ble superior Courts have consistently held that this right to privacy is not restricted to a specific location, such as a home or office, but extends to the individual themselves, wherever they may be11, in addition, the apex Court has also laid down the law in the following terms. "Therefore, when a child comes to interact with the judicial system, the response must be facilitative, cooperative and backed by child-right driven approach. Technicalities and trappings of normal practice and procedure are not suitable to the cases where very young children are the party".12 Failing in marriage, undoubtedly is an agonizing affair but it is not an indictable crime, hence a parent cannot be treated as a criminal. Non-custodial parents are not offenders or criminals. If seeking justice through legal channels as a last resort is not a crime, then what recourse is open to such parents. The Guardian Courts are adamant to appreciate that the concept of 'home' extends beyond physical boundaries, encompassing a sense of personal freedom, security, and privacy. The emphasis lies not on the physical space itself, but on the individual's right to feel secure and enjoy privacy wherever they may be. The term 'privacy of home' symbolizes as ordained supra, the intrinsic human need for a safe and private environment, which is essential to a person's well-being. Although Article 14 safeguards privacy, the meeting space paradoxically compromises this right due to inadequate seating and frequent overcrowding. That the Guardian courts are only available in major cities of Pakistan. In most of the smaller towns/cities, the child custody cases are being heard by Civil Judges who are not properly qualified on the subject. The cases pertaining to children require different skill set and expertise than that of the cases pertaining to land and property, therefore in cases where a minor is involved in litigation, the learned presiding officers needs to be equipped with a subject centric training especially about chalking out of a schedule of meeting of the minor comprising of two hours13 once or twice in a month and that too to be held within the premises, the Court must explain why such an arrangement is deemed appropriate. Furthermore, the Court must also provide justification for limiting the duration of these meetings to a minimum of two hours per month. This ensures that the rights of all parties involved are respected and that the decisions are made in the welfare of the minor. With humility, it is stated that all public and judicial authorities are mandated to adjudicate citizen's applications in strict compliance with the provisions of the General Clauses Act, 1897, as unequivocally upheld by the Apex Court of Pakistan14. This means that they must make decisions in a fair, transparent, and timely manner, providing clear reasons for their conclusions. Every child, by the laws of nature, deserves the love and affection of both parents, a blessing from the Almighty. Despite parental discord, the child should not be deprived of benefiting from both parents. Meeting one's parent at his/her home in a congenial atmosphere is a fundamental right bestowed upon every child by Allah, and there is no substitute for a natural father or mother. In as much as Article 4 explicitly guarantees every civilian an inalienable right to legal protection and treatment in accordance with the law. When considered in conjunction with Section 12 of the Act 1890, it becomes apparent that the law does not specify the venue/place for meetings between non-custodial parents and their children within court premises. However, the current practice of Guardian Family Courts, limiting visitation to a mere two hours once or twice a month and that too to be held within court premises, contravenes fundamental rights of minor children. A court of law cannot take any action that infringes upon a person's life and liberty without valid reasons and in accordance with the law. Furthermore, a person cannot be restricted or prevented from doing something that is not prohibited by law. The existing laws governing child custody proceedings, are the Guardians and Wards Act, 1890 and the Family Courts Act 1964, does not specify a particular duration or frequency for visitation schedules for minors. Instead, the overriding concern before the Court is to ensure the WELFARE OF THE MINOR. In-fact the core objective of both the (Act No. VIII of 1890) and (Act XXXV of 1964) is to protect and promote the welfare and well-being of minors. Guardian Courts must highlight this principle and make decisions as a parent would. However, the present imperfect practice of chalking out of stereotyped visitation schedules was adopted by Family and Guardian Courts as a convenient solution to avoid administrative hassles, rather than prioritizing the minor's welfare. Restricting a parent's access to their child without affording any justification and reasons cannot be considered an act done in the welfare of minor and should not be justified as a solution to administrative problems. Studies have consistently demonstrated that children raised by single parents are more prone to various psychological complications as they mature. Research15 has consistently shown that children from single-parent households are at a higher risk of developing multiple psychological issues as they grow older. These potential consequences include, but are not limited to: Greater likelihood of substance abuse Higher incidence of suicidal tendencies Increased propensity for involvement in serious criminal activities However, it's critical to appreciate that these outcomes are not predetermined and can be improved with the grant of an appropriate and an adequate at home access comprising of frequent overnight stays to the minor child with his non-custodial parent. Providing children with a nurturing environment and necessary tools can help mitigate these risks and promote healthier development. Notwithstanding the unambiguous facility in the Constitution16, the idea of human dignity remains underdeveloped in our child custody laws, court procedures and practices. While Article 14 has been invoked in a few cases involving torture, privacy violations, and right to life, a wide range of matters that squarely effect human dignity remain unaddressed. These disregarded subjects include, but are not limited to, inadequate and inappropriate visitation rights, meetings within court premises, where there exists lack of basic amenities like electricity and gas, restricted religious liberties, and denial of public housing and free education. It is crucial to recognize and discuss how these issues undermine human dignity and explore how Article 14 can be applied to address them. It is necessary in the prevailing situations, that our higher courts take rapid and stronger action to address this perilous issue. The family justice system must emphasize and promptly respond to this problem, safeguarding the rights and well-being of parents and particularly of children, are protected and upheld. By ensuring the self-worth and reverence of every individual, we can hope to eliminate many of the social and legal disorders plaguing our nation. It is vital that our esteemed family justice system embrace a more extensive elucidation of Article 14, placing human worth at the forefront of the basic human rights discussion. This will allow the law to rise above its literal boundaries and fulfill its true spirit, leading to a fairer and impartial culture. The misuse of legal processes in the name of welfare of minor must be stopped. To achieve this. special syllabus and training sessions are essential for sensitizing presiding officers of the Family and Guardian Courts, enhancing their understanding and expertise in handling sensitive child custody cases. This will ensure that they provide clear, reasoned orders when making decisions as judges and when limiting non-custodial parents (often fathers') civil rights. They are required to furnish legitimate and cogent reasons for requiring minors to be brought to court premises for meetings with non-custodial parents, especially since each case has unique circumstances that require individual consideration. Additionally, it is humbly suggested that presiding officers of the Family and Guardian Courts are imparted specialized training to ensure the strict adherence to therapeutic principles of natural justice in all guardianship matters. This enhanced training would empower them to render well-informed decisions that prioritize the welfare and best interests of children, while safeguarding their fundamental rights and dignity. Just as an accused person is entitled to certain rights and protections under the law, non-custodial parents in child custody litigation should also be recognized as human beings deserving of basic amenities and rights by the law of the land. This includes ensuring that their rights are protected and that they are treated fairly and justly in all proceedings. In conclusion, the establishment of a reasonable, an equally balanced at-home "MINIMUM STANDARD" visitation schedule from the outset of child custody litigation is critical, mirroring the provision of interim maintenance allowance under the Family Courts Act, 1964. This imperative relief must be universally available to all non-custodial parents without discrimination. commencing from the trial's inception, to prevent further injustice and ensure a fair and equitable process for all parties involved. The wellbeing and future of countless children and families depend on your prompt attention to this pressing matter. Bibliography: Siddiqi, Fahad Ahmad. "Commentary: Approaches to Combat Parental Alienation During Child Custody Litigation." (link unavailable). March 29, 2016, Siddiqi, Fahad Ahmad. "Commentary: Fair Play. Natural Justice and Due Process in Child Custody Proceedings." (link unavailable), July 13. 2017. Siddiqi. Fahad Ahmad. "Commentary: Role of Punjab Judicial Academy in Administration of Child Custody Justice." (link unavailable), May 7. 2019. Siddiqi, Fahad Ahmad. "Commentary: Shared Parenting and Visitation Rights During Child Custody Litigation" (link unavailable). November 18, 2015. Siddiqi. Fahad Ahmad. "The Psychological Toll of Denial of Appropriate at Home Visitation Rights: An Exploratory Study through the Lens of Islamic Bioethics." Research Gate, 2022 Books Siddiqi, Fahad Ahmad, Shared Parenting and Pleadings. Siddiqi, Fahad Ahmad, Shared Parenting: The Pakistani Perspective Statutes Constitution of Islamic Republic of Pakistan, 1973. Reports: Report of the Director. Applied Psychology, University of the Punjab, submitted in Writ Petition No. 28566/2011. Citations PLD 1998 SC 388. PLD 2008 Lahore 527. PLD 2010 Karachi 119. 2023 SCMR 413. 2024 PCr.LJ 190 (Balochistan) 1 He is a leading family law expert with 20+ years of experience in the Lahore High Court. As a distinguished Advocate, his practice is centered around child custody and shared parenting, where he has earned a reputation as a foremost expert and passionate advocate. He's a prolific author and researcher, publishing numerous articles and books, including "Shared Parenting and Pleadings" and "Shared Parenting: The Pakistani Perspective". His work has gained international recognition, featured in the prestigious Routledge International Handbook of Shared Parenting (2021 edition). Access his papers online at https://courtingthelaw.com/author/fahad-ahmad-siddiqi/. Contact him through his website https://ccisip.com/ or at gaslaw@gmail.com or through his Mobile No. 0300-8411403. 2 Article 4 explained 2024 PCr.LJ 190 [Balochistan] 3 Fahad Ahmad Siddiqi, Commentary Fair Play, Natural Justice and Due Process in Child Custody Proceedings, CourtingTheLaw.com, July 13, 2017 4 Constitution of Islamic Republic of Pakistan, 1973 5 PLD 2024 Supreme Court 67 6 Fahad Ahmad Siddiqi, Commentary. Role of Punjab Judicial Academy in Administration of Child Custody Justice, Courting TheLaw.com, May 7, 2019 7 PLD 2008 Lah. 527 8 Fahad Ahmad Siddiqi, The Psychological Toll of Denial of Appropriate at Home Visitation Rights. An Exploratory Study through the Lens of Islamic Bioethics, Research Gate (2022) 9 Constitution of Islamic Republic of Pakistan, 1973 10 Fair Play, Natural Justice and Due Process in Child Custody Proceedings Courting the Law, July 13, 2017 11 PLD 1998 SC 388 and PLD 2010 Karachi 119 12 2023 SCMR 413 SUPREME COURT 13 Fahad Ahmad Siddiqi, Commentary Shared Parenting and Visitation Rights During Child Custody Litigation, CourtingTheLaw.com, November 18, 2015 14 1998 SCMR 2268 15 Report of the Director. Applied Psychologs, University of the Punjab, submitted in Writ Petition No. 28566/2011 16 Constitution of Islamic Republic of Pakistan, 1973