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Parents' demands not important in child custody cases when child is grown enough to take rational decisions

Parents' demands not important in child custody cases when child is grown enough to take rational decisions

Aneesh Vs Aswathy

Kerala HC

15/02/2023

O.P.(FC) NO. 557 OF 2022

About/from the judgment:

The High Court observed that while deciding child custody cases, demands of parents cannot be given too much importance when the child is grown up enough to take rational decisions.

A Division Bench made the observation while considering a petition filed by a father seeking custody of his 16-year-old son.

The Bench said that the welfare of the child has to be given precedence, and that his own decision on which parent he wishes to live with must be also be considered.

“... the welfare of the child has to be given predominance. Since he is grown up and able to take rational decisions in his personal matters, too much importance cannot be given to the parent’s demands.”

The petitioner father and the boy’s mother were living as husband and wife till 2020. The petitioner alleged that without sufficient reason, the respondent mother left his companionship along with the child. The boy’s mother contended that the petitioner maintains an extra-marital relationship with another woman, which was why their cohabitation could not continue.

The family court gave custody of the boy to his mother and allowed the father visitation rights. The father challenged this order before the High Court.

When the Court interacted with the boy, he expressed his desire to stay with his mother.

The Court also took note of the fact that the family court opined that overnight custody of the boy could not be given to the father, as the boy used a wheelchair and his mother would pick him up from school at noon to help him in his daily pursuits.

After referring to various precedents, the Court said that since the boy is grown up and able to take rational decisions in his personal matters, too much importance cannot be given to the parent’s demands.

However, the Court said that it is essential for the well-being of the child to have some connection with both parents.

“Of course, while the child is staying with the mother, the father has to be allowed to interact with the child. It is essential that the child maintains emotional bondage and warmth with both parents which helps his proper upbringing. Considering the physical condition of the child and the special needs and conveniences required for his day-to-day affairs, we hold that giving overnight custody of the child to the petitioner is not conducive and in the interest of the child, ” the judgment stated.

Therefore, the Court granted custody of the boy to his mother, but modified the family court's order by granting the petitioner visitation rights from 10:00 am to 12:00 noon every second and fourth Saturday.

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