Visitation Rights

Visitation Rights  சந்திப்புகளுக்கு வருகை /  போய்ப் பார்த்தல்,  உரிமைகள்:

விவாகரத்து செய்துகொள்ளும் பெற்றோர்களால், அவர்கள் குழந்தைகளின் எதிர்காலமும் பாதுகாப்பும் கேள்விக் குறியாகிறது.அவர் களுக்கு உளவியல் ரீதியான பிரச்சினை எழுகிறது. அதனால் அவர் கள் சமூக விரோதியாகும் அபாயமும் இருக்கிறது. பெண் குழந்தைகள் வக்கிர குணம் கொண்டவர்களால் பாதிக்கப்படும் சூழ்நிலையும் உள்ளது. “உதாரணத்திற்கு வெளி நாடுகளில் பொதுவாக ஒரு தம்பதி விவாகரத்து கேட்டு வழக்கு தொடர்ந்தால் அந்நாட்டு திருமண சட்டத்தின்படி, முதலில் குழந்தையின் நிலையை நிர்ணயிக்க உத்தரவிடப்படுகிறது. குழந்தைகளின் உடல்ரீதியான காப்பாளர், சட்டரீதியான காப்பாளர் யார் என்பது பற்றி சமரசமாகப் பேசி சட்டப்பூர்வமாக முடிவெடுத்த பிறகே விவாகரத்து வழக்கு விசாரிக்கப் படுகிறது. அந்தக்  குழந்தை யாரிடம் பாதுகாப்பாகவும் வசதியாகவும் இருக்க நினைக்கிறதோ அதைக் கேட்டுத்  தெரிந்துகொண்டு, அந்தக்  குழந்தையின் குடும்பப் பின்னணியை அலசி ஆராய்ந்து, தாயிடமோ தந்தையிடமோ  ஒப்படைக்கப்படும். மற்றொருவர், அந்தக்  குழந்தையை, இந்திய அரசியலமைப்புச் சட்டம் மற்றும் பாதுகாவலர்கள் மற்றும் வார்டுஸ் (Guardians and Wards Act) சட்டப்படி, “குழந்தை அணுகுதல் மற்றும் பார்வையிடம் வழிகாட்டுதல்கள்” (Child access & vistation Guidelines), கூறும் விதிகளின்  அடிப்படையில் சந்தித்துக்கொள்வார்கள். 

What is Visitation Rights ?

Visitation cannot be made possible by an order of Court when children are reluctant to meet the Mother. Visitation Right to Mother would be adverse to the interest of the children. Visitation Rights are distinct from custody or interim custody orders. In Arun Sharma VS Roxann Sharma, 18 Sep 2014 The petitioner has filed the said Matrimonial Petition for permanent custody of the minor child and also for temporary injunction to restrain the respondent from taking forcible custody of the child. The petitioner is the husband of the respondent. He claimed that he is a native of Mumbai and citizen of India whereas the respondent is American citizen. They were married in the year 2009, in U.S.A. and out of the wedlock, the respondent delivered a boy on 18/04/2012 in U.S.A., who is named Thalbir Sharma. The petitioner and the respondent thereafter returned to India and were residing in Mumbai, in the company of the mother of the petitioner. Thereafter, there arose differences between the two and they started leaving separately. The child is in the custody of the petitioner. In the said Matrimonial Petition, the respondent filed an application dated 31/10/2013 for interim custody of the minor child. The petitioner filed reply. Upon hearing the parties, the trial Court passed the order dated 31/01/2014 by which, pending final disposal of the petition under Section 6 of the Act on merits, the respondent was granted interim custody of the minor child Thalbir sharma and the petitioner was assured with visiting rights to the child. The said order was challenged by the petitioner in this High Court by way of Writ Petition No. 79 of 2014. By Judgment dated 02/08/2014, the said Writ Petition was disposed of. The impugned order dated 31/01/2014 was quashed and set aside. It was ordered that the custody of the child shall continue with the petitioner subject to the respondent getting visitation rights in the manner referred to in the order. The trial Court was directed to proceed to dispose of the Petition filed by the petitioner as well as the Counter Claim as expeditiously as possible in the light of the observations made in the said order after hearing the parties in accordance with law. It was observed that the trial Court shall not be influenced by any observations made by this Court while deciding the petition filed by the petitioner and the respondent on its own merits. In the present case before this Court, the custody of the child was ordered to continue with the petitioner subject to the respondent getting frequent visitation rights tentatively for at least 3 days in a week. The background mentioned in the Judgment dated 02/08/2014 would make it clear that it was never intended to hand over continuous exclusive custody of the child to the respondent, for three days. This judgment makes a clear demarcation between child custody and visitation rights to see the child.

The right to visitation is the statutory and social right given to a non-custodian parent to interact with a child. 
It is true that the welfare of the child is paramount and visitation is one of the integral parts of restoring the broken thread between the litigating parents.

What is right? Salient features:
In the case of divorce, one parent is awarded sole physical and legal custody of a child and the visiting right is given to the non-custodial parent. Visitation refers to an act where a non-custodial parent spends time with his child. Visitation rights are promoted by the public policy because it ensures that the child maintains a close relationship with the non-custodial parent. The right encourages and supports the involvement of both parents in raising the child.
The history of the right can be traced back to the nineteenth century, where the courts regularly granted non-custodial parent, visitation rights, which were designed to equitably resolve the parents� competing rights on the child. A visitation order would grant the non-custodial parent the right to visit the child �at all reasonable times,� which are flexible, and the non-custodial parent would select days and hours for visitation. Modern courts view visitation as a more ingrained right  that a �parent not granted custody of the child is entitled to visitation rights unless the court finds that such right would endanger the child�s physical, mental, or moral health.�

Types of Visitation
The right of Visitation can take three forms, Open, Structured and Unstructured visitation. In Open visitation, parents work together to determine a reasonable, liberal, and flexible schedule to allow the non-custodial parent to see the child. In Structured, visitation can be done only on pre-ordained days and times for the non-custodial parent. The court plays an important role in framing the visitation schedule to which parents can agree. In the Unstructured visitation, parents need to have a cooperative relationship which is often hard for divorced or estranged parents hence, this type of Visitation rarely works out.

What is Contact Rights ?
Virtual visitation is a trending concept that allows the non-custodial parent to communicate and visit their child virtually through virtual means. It is a technology-driven right with a purpose to keep in contact with their child when it may not be possible to do so physically. It is often referred to as e-visitation or e-access. Conditions that may arise the need for virtual visitation are instances of the relocation of the custodial parent with the child or the non-custodial parent and recently due to lockdown for the cause of COVID 19. Virtual visitation generally refers to video chat applications, such as Skype or Google Hangout but it may also include instant messaging through social media messaging platforms like Facebook or text messaging or Email or telephone conferences.

Significance of this development:
Virtual visitation may benefit a parent-child relationship in a number of ways which includes helping a child with homework or reading a story to a child at bedtime or seeing subtle facial expressions on one another�s faces. This type of visitation is not intended to replace physical visitation, but only a supplement. Virtual visitation is typically allowed under the following circumstances:

�    Child�s best interest: The decisions related to custody and visitation are made according to the best interest of the child, and virtual visitation is no exception. Virtual visitation may be granted by the Court provided that it doesn�t interfere with the child�s wellbeing and upbringing. This is the main determining factor.

�    Separations involving long distances: This situation has been observed in various cases and is a common condition on which virtual visitation may be necessary. The relocation of parents in different states or countries, may increase the distance between the parent and child. But the right of virtual visiting not only strengthens the bond between them but also reduces travel expenses and other visitation costs.

�    Circumstances requiring increased contact: Virtual visitation provides a secure and effective means to encourage increased contact between the kid and the non-custodial parent. This could be beneficial in cases where the relationship between the two is strained. It can also be beneficial where the child is under the impression that the non-custodial parent is not active enough in their life.

Critical analysis:
Virtual visitation promises an additional alternative way for the parents to have contact with their children when a personal meeting becomes impossible. Virtual visitation involves tech-driven methods to supplement face-to-face meetings. Some of the issues faced by parents in virtual visitation are:-

1.    Privacy
Parents and children deserve the right to have private communication, without the interference of other parents. When children do not have as much physical time with the non-custodial parent, virtual visitation is an innovative way to promote bonding. The parent should not question their children about the discussion, while they were engaged in virtual meetings. Since sole custodial parents enjoy the privacy and time they need with their children, the non-custodial parent too deserves that same right.

�    Impracticability
Virtual visiting in the case of minors can seldom prove to be impractical. Children younger than five often fail to maintain the focus to hold a conversation on the phone or video-conferencing application. They cannot read or write so emailing them is not something that can be done with privacy. Hence for a virtual visitation to work with younger children, it is necessary to have a cooperative parent.

�    Interference
Interference is an issue faced by divorced parents with regard to virtual visitation. In some cases, the frequency of virtual visiting is greater than physical meetings, which may be frustrating for the uncooperative custodial parent. Since technology is a subject to breakdown, it can be easily manipulated to portray as if not working. The custodial parent has a responsibility to make sure that the child is available to talk virtually when they are supposed to.

Apart from these, the virtual visiting right may be limited or denied by the Court. Factors that are considered by the Courts while doing so include:-

2.    Verbal Abuse:-
The first ground for denial of visitation is if the non-custodial parent has the tendency of verbally abusing the child or has threatened the child using verbal abuse. But the parent who has verbally abused the child carries the burden of proof that visitation is in the child�s best interest.

�    Emotional Harm
The second ground on which a Court may deny visitation is potential emotional harm the child may have if there is a visitation. Since emotional harm is subject to interpretation and differs in every case, the claim for denial of visitation rights usually must be supported by testimony from a psychologist, school counselor, or other professionals who can testify as to the child�s mental health.

�    Child�s Wishes

The concept of �Internet visitation� or �electronic visitation� is relatively new and that has been considered as a need of the hour. Indian judiciary now has recognised the scope of virtual visiting and have realised the need to have enacted laws allowing courts to order online or electronic visitation in custodial matters. Legislators and judges play an important role in legitimizing the use of virtual visitation between parents and children. Recently in the case of divorce, it could be seen that issue regarding the relocation of parents is rising. This would lead to creating distance among the parents and their child. Moreover, in this situation of crisis due to Covid-19, to protect the statutory right of the non-custodial parent, the legislation for virtual visitation has to be promoted.