The Bombay High Court has set aside a family court order imposing a joint-parenting and vacation arrangement on a 14-year-old boy, holding that a strict 50:50 split is not a practical solution and may lead to further conflicts. It also noted that Indian law does not recognise “joint parenting” as a statutory concept and that parents’ legal rights cannot override the child’s welfare. The court restored the mother’s custody application and sent it back to the family court for a fresh decision. Justice Gauri Godse said equal parenting time is not automatically the right solution and that the child’s welfare must remain the central consideration. The court granted physical custody of the child to the mother while the father will have temporary custody during the first half of the Diwali, Christmas and summer vacations, as well as alternate-weekend overnight access till the matter is decided by the family court. “In Indian law, the statutory framework governing child custody and guardianship does not recognise the concept of joint parenting. There is no compelling equal parenting, and the legal foundation in Indian law is the welfare of the minor child,” the September 1 order read. It was further added that the parents’ legal rights can never override the child’s welfare, while pointing out that a joint parenting plan without proper structure may result in further complications that may affect the welfare of the child and may have an adverse psychological impact on the child. Parted ways but fighting for custody of childThe court found this case to be an unfortunate case where the spouses have adopted a balanced approach and parted their ways, but are unable to adopt a similarly balanced approach for their minor son. It was found that until around 4 years of his age, the child resided with the mother, and that during the summer vacation of April 2016, the father took the child to his mother’s place. Subsequently, the father had filed for divorce in March 2015. The child was eventually handed over to the mother in July 2017 and later to the father in December 2019 under modified consent terms. Justice Gauri Godse stressed that the child’s educational requirements, medical and health issues, extracurricular activities and emotional stability must remain at the centre.The court found it strange that, in the modified final consent terms of December 2019, there was no provision included for the mother to meet the child and the father was granted sole custody. The mother subsequently approached the family court seeking access, and in November 2021, the parties agreed that she would be allowed to meet the child once every two months for two nights and have 50 per cent of the summer and winter vacations.Story continues below this adThe dispute later intensified, with the mother seeking modification of the custody arrangement after alleging that her access to the child was being restricted. In March 2024, however, the parties filed a joint plea agreeing to abide by the earlier consent terms, and the mother withdrew her custody petition, while the father undertook to facilitate her access.Despite the earlier arrangement, the family court, in its September 20, 2024 order, partly allowed the mother’s application and directed that both parents would have joint parenting, with 50% vacation time and the child’s ordinary residence with the mother from the next academic year.‘Insensitive approach’ of father, custodyThe court also noted the father’s insensitive approach in his argument that, in exchange for an amount of Rs 8 lakh and interest in the matrimonial flat, the mother had given up the child’s custody. “Such routine terms in the consent terms cannot be interpreted to mean that the mother had given up the custody of the child in exchange for any consideration,” it added. Story continues below this adThe court noted that the family court judge found that the child desires equal time with both parents and ultimately wants to keep both of them happy. However, it clarified that the judge overlooked whether the directions for joint parenting would be feasible in the present case.The court noted that a shared or joint parenting plan, if found to be in the child’s best interests, would be the best solution, but the parents’ willingness is most important. It added that before structuring a joint or shared parenting plan, a meaningful and fair discussion and hearing are necessary, remanding the matter back to the family court.It was pointed out that it is the custodial parent’s duty to make genuine efforts to help the child feel comfortable meeting the other parent. “Thus, the mother, with whom the child is presently residing, must make efforts to enable the minor son to spend sufficient time with the father,” the court added. The court held that the physical custody of the child will continue with the mother, and the father should have temporary custody of the child for the first half of the Diwali, Christmas and summer holidays till the matter is decided by the family court.Story continues below this adThe high court clarified that both parents should bear the child’s expenses equally, including education and medical expenses, if any and directed them to cooperate for early disposal of the case. This ruling highlights that the courts consider the welfare of the child over the willingness of the parents and clarified that indian laws do not recognise the concept of joint parenting.