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Child custody in the context of foreign court orders

By Rakesh Shukla

In a matrimonial dispute case involving a child, where the child was removed from his natural environment (the US) by the mother, and brought to India, the Supreme Court of India ruled that it was the child’s best interests that must be given priority. Both mother and son were ordered to return to the US within 15 days

The recent case of the police not being able to trace a woman, Vijayashree, and her seven-year-old son Adithya for two years, pursuant to a habeas corpus petition filed by the father V Ravi, focuses attention on the complex issue of child custody in a matrimonial dispute. The Central Bureau of Investigation (CBI) had to be called in, which succeeded in tracing and producing both mother and child before the Supreme Court of India.

Removal of the child and the shift away from the US by the mother, who then moved from place to place for over two years, is indicative of the anxiety, desperation and fears of a parent with regard to separation from a child involved in such a situation. The matter was further complicated by the fact that orders had already been passed by courts in the US.

V Ravi, an American citizen, married Vijayashree in December 2000, in Tirupati, India, according to Hindu rites. In July 2002, their son Adithya was born in the US. In July 2003, Vijayashree approached the New York State Supreme Court for a divorce. On April 18, 2005, the court passed a consent order granting joint custody to the parents. The marriage was dissolved in September 2005, incorporating the April 18, 2005, order. On June 18, 2007, a consent order with regard to the joint custody awarded, specifying details of residence, time sharing, and holidays, was made by the family court of the state of New York.

On June 28, 2007, Vijayashree brought Adithya to India, telling his father that she would henceforth be living with her parents in Chennai. The father moved the family court in New York and was granted temporary sole legal and physical custody of Adithya. Vijayashree was directed to turn over the child and his passport to the father. Further, the New York court suspended custodial time granted to the mother and issued child abuse non-bailable warrants against her.

Adithya’s father filed a petition in the Supreme Court of India for his son to be produced. But both mother and child could not be traced for over two years, until the CBI finally located them and produced them in court in October 2009.

The Supreme Court, through a judgment reported as Dr V Ravi Chandran versus Union of India, 2009 (14) SCALE 27, declared that while dealing with the custody case of a child removed by a parent from one country to another, in contravention of the orders of the court where the parties had set up their matrimonial home, the court in India had to consider whether to conduct a summary inquiry or an elaborate inquiry into the question of child custody.

In the case of a summary inquiry, the court would return custody to the country from which the child had been removed, unless such return is shown to be harmful to the child. In case of order of summary return, all aspects of the child’s welfare would be investigated by the court where the matrimonial home was situated.

In the event of an elaborate inquiry, the court could ignore the order of the foreign court (or treat the fact of the child’s removal from another country as one of the circumstances), go into the merits and decide the issue of custody from the standpoint of the child’s permanent welfare. If the court took the view that an elaborate inquiry was necessary, the court was bound to consider the welfare and happiness of the child as paramount. It would go into all relevant aspects of the child’s welfare, including stability and security, a loving and understanding environment, full development of the child’s character, personality and talents.

The issue of a summary or elaborate inquiry is to be decided from the standpoint of the best interests of the minor. The summary jurisdiction to return the child is exercised if, for example, the child is removed to another country where his native language is not spoken, or the child is divorced from the social customs and contacts to which he is accustomed, or education in the native land is interrupted and the child is subjected to a foreign system of education that could psychologically disturb him. Summary jurisdiction is to be exercised only if the court is moved quickly and promptly, that is, before the child develops roots in the country to which he has been removed.

Alternatively, the court can think about conducting an elaborate inquiry taking into account other facts such as the time that has lapsed after the removal, and it could be considered that it would be in the best interests of the child for him not to be sent back to the country from which he was removed. In that case, the unauthorised removal of the child from his native country would not come in the way; the court can ignore the removal and independently consider whether sending the child back is in his best interests.

The court observed that the matter of custody of a minor child was not to be decided on considerations of the legal rights of the parties but on the sole and predominant criterion of the best interests of a minor.

The Supreme Court applied the law declared and examined whether, in the facts of the present case, an elaborate inquiry or a summary inquiry should be conducted by the court in India. It observed that the minor child Adithya was an American citizen, born and brought up in the US. That Adithya’s natural environment was America. That, keeping in view the best interests and welfare of the child, the mother and father had obtained a series of consent orders regarding custody/parenting rights and maintenance from the courts in America. That, in June 2007, both parties had agreed to a comprehensive arrangement with respect to shared joint legal and physical custody of Adithya.

Vijayashree alleged before the Supreme Court of India past denial of basic rights to the child by the father. She said the father had failed to give the child medication, denied him education, did not provide a stable environment, and abused the child. The court observed that in view of the fact that all orders with regard to custody of Adithya had been passed by courts in America, with the consent of both parties, the mother’s present allegations had no substance.

The submission that the American courts had no jurisdiction, that the orders passed were inconsistent with Indian laws and could not be executed, was rejected. The court observed that the mother had been staying in India for two years and had not pursued any legal proceedings for sole custody of the child or for a declaration that the orders passed by the American courts were null, void and without jurisdiction. In fact, she did initiate proceedings under the Guardianship and Wards Act but later withdrew the case. The judgment notes that there is nothing to even remotely suggest that it would be harmful for the child to return to his native country.

Next, the court examined the issue of the child developing roots in the country to which he had been removed, and prompt application for return/custody of the child. The court observed that Adithya was not receiving an education in any one place in India. He had moved from one school to another -- first in Dehra Dun and then, in a few months, to Chennai. Indeed, both mother and son could not be traced for two years after the court issued a notice because they were moving from one state to another. Vijayashree’s parents denied any knowledge of their daughter’s whereabouts since September 2007. The court held that under these circumstances, there had been no occasion for the child to develop roots in India. It also noted that the father had moved for custody without delay, and that the child could not be produced for two years as the mother was constantly on the move.

The court added that the father was prepared to pay all the travel expenses and make living arrangements for the mother in the US till the courts in America passed the necessary orders. Also, that he would comply with the earlier joint custody order passed by the American courts with the consent of both parties. And, he would request the American courts to drop all warrants issued against the mother and would not pursue criminal charges against her. The fact of confirmation of admission for Adithya in a school in the US was also noted by the court.

The Supreme Court concluded that it would be in Adithya’s best interests to return to the US. Vijayashree was ordered to return to the US with Adithya, within 15 days.

(Rakesh Shukla is a Supreme Court lawyer)

Infochange News & Features, April 2010