Application of Therapeutic Concept of Shared Parenting, in Child Custody Litigation

Abstract

The law pertaining to the guardianship and regulating the custody of children in Pakistan is known as the Guardians and Wards Act, 1890. The primary consideration in guardian courts whilst granting custody of minors to either parent or sometimes to grandparents or other relatives is the welfare of the minor. The said law is the main mode of attaining custody of children. In a guardian/custody proceedings pending adjudication in a family/guardian court there are three parties to the proceedings: the Custodial Parent, the Non Custodial Parent and the Minor. Family matters are not to be decided strictly on the yardstick of procedural laws nor any other principle aimed at the observance of technicalities;paramount consideration before the court must be the welfare of the minor and betterment of the minor. Courts in such a matter are required to act in a Loco Parentis position and many issues are required to be kept into consideration by the guardian Court, however, this is not the practice observed by the Courts adjudicating guardian and custody matters pending adjudication in Pakistan. What has actually been done in the vast majority of cases pending in multiple guardian courts in Pakistan is that the non-custodial parents are subjected to abuse and victimization in the name of procedural technicalities, especially during the pendency of divorce and custody of minor proceedings. Even after waiting for months for the first face to face meeting with his/her own children, the non-custodial parent gets extremely limited visitation schedule to meet their children. This visitation schedule is often as little as once a month for two hours within court premises. Surprisingly, this visitation schedule has been followed widely in the guardian courts of Pakistan for decades and has now become precedent. In other words “once a month for 2 hours in court” has become a “template” of visitation orders being granted to non-custodial parents in guardian courts. In addition even the above said visitation schedule of two hours can be conveniently avoided by a custodial parent simply by presenting a fake medical certificate. In such cases the non-custodial parent is left with no choice but to wait for the next scheduled meeting. The guardian courts are generally very casual towards such excuses furnished by custodial parents. Being a lawyer I have witnessed that in most cases the flawed court systems were being manipulated to take revenge upon the non-custodial parent (who is usually a father) by not letting him meet his/her children. It is extremely easy to delay the proceedings simply by filing frivolous applications/appeals and appealing the orders to higher courts. Using similar delaying tactics, thousands of children are kept from meeting their non-custodial parent for months and in some cases years. The guardian courts are unwilling to acknowledge the simple fact that the nature of a child custody case is entirely different from routine civil cases. Child custody litigation is a true representative of judicial litigation where “justice delayed is justice denied”. The mind of a child is like a perishable commodity. With the passage of time it is easy to change the innocent mind. Within months due to the lack of interaction with a non-custodian parent and constant brain washing by the custodian parent and his/her family, the children start forgetting and in many cases begin disliking the non-custodian parent who once used to be extremely dear and loved. This phenomenon has been named as Parental Alienation Syndrome or simply “PAS” by psychiatrists.