May 12, 2021

After the separation of spouses during a divorce, the person who gets affected the most is the child born out of that marriage. Custody of a child refers to the upbringing of that child and providing them with education. Both the parents have an equal right over the custody of the child. The Supreme Court’s primary and paramount consideration, while giving custody rights, is the child’s welfare and interests, and not the rights of a parent. Where custody is a broader term and is either legal or physical, visitation is the time spent with the child.

Visitation right is defined as a legal right given to a divorced or a separated parent who is not the child’s primary custodian. Visitation rights can be granted to the biological parent as well as the grandparents.  In a divorce, where one parent is awarded with the child’s physical custody, the other parent, i.e. the non-custodial parent is awarded with visitation rights. The basic aim of visitation rights is to protect the child from the conflict between the parents. The court may or may not grant these rights to the non-custodial parent, depending upon the child’s welfare and his/her attachment to that parent. In cases where child visitation rights are denied, the non-custodial parent may still be ordered to pay child support to the parent having physical custody. 

Visitation rights may be determined by the parent or by the court if the parents fail to arrive at an agreement. Courts generally consider the wishes of the child before granting custody and visitation rights. The court has the right to decide the time, place and manner while granting visitation rights and can also revoke the visitation rights awarded if the non-custodial parent has misused their visitation rights. Visitation rights can be of the following types:

  1. Unsupervised Visitation: This is the most common type of visitation, where the non-custodial parent gets to take their children to their own homes or an outing with certain limitations. The non-custodial parent usually has the child on a specific weekend and holidays. 
  2. Supervised Visitation: The court may, in some cases, order supervised visitation where the primary custodian or their representative should be present during the visit. The court grants supervised visitation rights when it finds the non-custodial parent to be physically or mentally harmful to the child.
  3. Virtual Visitation: This takes place using video conferencing methods, and is granted to the non-custodial parent living away from the parent having physical custody. This is generally not preferred, but it provides a sense of connectivity and continuity with the child. 

Visitation rights are very crucial, not just to the parent but also to the child as well. A petition by Ms Solouchna Rani contended that the provision of granting physical custody to one parent, and visitation rights to the other, deny children the fundamental right to enjoy the love of both parents. This greatly affects the child’s quality of life and their personal growth and development. The Supreme Court said that family courts should grant visitation rights so that the child is not deprived of love and affection from either of the parent. In another case of visitation rights, the Sessions court of Mumbai allowed the father to have a 48 hour access to the child, every alternate weekend for the child’s well-being and smooth development. To have a closer relationship with both parents, the court also encouraged overnight access at home of the non custodial parent. 

Various NGO’s provide help to non-custodial parents to win visitation rights in the court or by way of mediation. Child Rights Foundation is one such NGO based in Mumbai which lays down guidelines for the custody of children after divorce or separation. The High Court of Bombay, Madhya Pradesh and Himachal Pradesh has directed family courts to refer to these guidelines while dealing with divorce cases. 

The parent’s separation can scar a child emotionally and cause trauma which often leads to personality disorders, substance abuse, and clinical depression. Thus for the child’s mental and physical stability, it is essential that he/she receives the affection from both parents and grows to love and respect both parents.