With rapid social and economic change, conjugal and familial relationships are becoming more complex and so are the conditions of their dissolution and with the increase in communal changes affecting family life, an update is required in the prescribed laws governing family relationships during and after marriage.
Currently, our legal framework for child custody is based on the hypothesis that custody can be vested with either one of the fighting parents and suitability is determined in a comparative manner. But just as the basis for dissolving marriage has shifted over time, from fault based separation to mutual consent divorce, we need to rephrase our definitions for custody and provide for a broader framework within which separating parents and children can decide what custodial arrangement works best for them.
The law pertaining to the guardianship and regulating the custody of children in Pakistan is known as the Guardians and Wards Act, 1890. The principal concern in guardian courts whilst granting custody of minors to either parents or sometimes to grandparents or other relatives is the welfare of the minor. This law is the main mode of accomplishing custody of children. In a guardian/custody proceeding pending adjudication in a family/guardian court there are three parties to the said proceedings, the Custodial Parent, the Non-Custodial Parent and the Minor.
Though, theoretically family matters are not to be decided strictly on the yardstick of procedural laws nor any other principle aimed at the observance of technicalities. Courts in such a matter are required to act in a Loco Parentis position and many aspects require consideration by the guardian court, which of-course is not the practice observed by our family judicial system.
Usually, in majority of the cases pending in multiple guardian courts, the non-custodial parents are subjected to abuse and victimization in the name of procedural technicalities. This is more common during the pendency of divorce and custody of minor proceedings. Even after waiting for months for the first face to face meeting with their children, the non-custodial parent gets extremely limited visitation schedule to meet their children.
This visitation schedule is often as little as once in a month for two hours within court premises. Surprisingly, this visitation schedule is followed widely in the guardian courts of Pakistan for over decades and has now become precedence. 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 fact, even the above said visitation schedule 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.
As a direct consequence of this extremely limited access that is allowed to the non-custodial parents after a prolonged battle ranging over a period of 7/8 months in routine, it is always the child who suffers. Within a short span of time, due to lack of interaction with non-custodial parent and constant brainwashing by custodial parent and his/her family, the children start disliking the non-custodial parent who once was exceptionally beloved and cherished.
This has been named as Parental Alienation Syndrome or simply “PAS” by the child psychiatrists. Parental Alienation Syndrome often starts developing in children when the parents separate or begin divorce proceedings. A parent may take away or keep hold of the child from the other parent, seeking to gain an advantage in the expected or pending child custody proceedings, or because that parent fears losing the child in the pending child custody proceedings. This creates tangible effects on a child but is often unaddressed.
What is required is to comprehend by our judicial system is that the custodial parent (mothers mostly) can be fiendish, with the end goal of seeking retribution on a non-custodial parent (fathers mostly, in our society). What such contesting parents fail to acknowledge is that they are hurting the child both in the short and the long haul by denying him/her of a decent parent just because they want to get vengeful against their ex-spouse. The child is merely used as a tool in this case. The alienator is not worried for the welfare of the child but more so with their own longing for retribution.
Whoever utilizes mental conditioning tactics to get the child to loathe the other parent is in the wrong. There is extensive evidence that shows the damage that is done to children who are alienated against a non-custodial parent when they are minors.
Research has demonstrated that when they grow up such children experience the ill effects of the harm caused by an estranged custodial parent. The most horrible thing that can happen in a child’s life, apart from losing a parent, is to become a rolling ball in parents’ divorce and ensuing custody battle.
There is no simple approach to battle distance, particularly if the guardian has had little contact with the child over a long stretch of time. One may say the alienator has won and has the complete control of the child in this situation. The two (the alienator and the child) then are a “group” who work against the estranged non-custodial parent with the end goal of denying the estranged non-custodial parent any contact with the defrauded child.
The only recourse to combat parental alienation syndrome injected in an estranged child by a custodial parent is that the non-custodial parent must have frequent and adequate access to the child. It is time that our family justice system must understand that in guardianship matters, courts are required to exercise quasi parental jurisdiction. The supreme consideration in such context is the welfare of the minor, and to ensure this courts have unfettered powers. Application under section 12 of the Guardian & Wards Act, 1890 is required to be decided on such principles.
Our judicial system must acknowledge that the contesting parents have inherent right to seek adequate and reasonable visitation hours, especially the non-custodial parent who is mostly the father, and is inherently a natural guardian of the minor. In order to achieve this purpose, the Guardian Court should facilitate a congenial, homely and friendly environment and a reasonable visitation schedule to the non-custodial parent. Courtroom of a Guardian Judge or a separate room within the Court premises for visitation is neither conducive nor effective. It lacks basic and proper facilities and arrangements and is not comparable to a homely environment. Meeting for merely two hours once in a month do not serve the purpose.