Every child below the age of eighteen years in India must have a legal guardian. When the divorce takes place between the couple, one parent receives the physical and legal custody of the child and the other parent will be the non-custodial parent who will be awarded the visiting rights. Right to visitation is the social and statutory right granted to the non-custodial parent, grandparents to interact with the child. Visitation rights are advocated by the public policy since it ensures that the child retains a close bond with the non-custodial parent. The right encourages and supports both parents’ involvement in the child’s upbringing. When the custody of the child is determined, the non-custodial parent also gets a right to visit the child from time to time.
Types of Visitation
- Open Visitation– Under this visitation, both the parents collaborate to come up with a reasonable, liberal, and flexible schedule that allows the non-custodial parent to see his or her child.
- Structured Visitation– Under this visitation, for the non-custodial parent, visitation is limited to pre-arranged days and times. The court has a significant role in establishing a visitation schedule that both parents can agree on.
- Unstructured Visitation– Under this visitation, parents need to have an amicable relationship which is impossible for the divorced couple, therefore, this relation rarely works out.
Visitation Rights of Non-Custodial parents
- The non-custodial parent receives an order from the court granting him/her the visitation rights if the custody of the child is awarded to the other parent.
- The court while determining the visiting schedule and period must ensure that child has frequent and continuous contact with both the parents. It is a relevant factor for the welfare of the child.
- The non-custodial parent must also be awarded an equal opportunity to spend time with the child on holidays, festivals and, vacations.
- The non-custodial is under an obligation the right to take care of the child when the child is visiting him/her.
There are certain points that need to be taken into consideration while determining the timing and schedule for visitation to the non-custodial parents.
- Age of the child
- Relations of the child with the non-custodial parent.
- Distances between the homes of the custodial and non-custodial parents.
- Holidays are given higher priority when it comes to meeting the child. This means that the court may enable the noncustodial parent to meet the minor kid on weekends, festivals, religious occasions, birthdays, and long school vacations while issuing a visitation order.
- The character, ethical and moral nature of the non-custodial parent.
The court has the complete discretion to decide as to when, how and, where the non-custodial parent’s rights are enforced. In various circumstances, the noncustodial parent may be granted a right to visit the child solely at the family court’s children’s facility. The court can also revoke the visitation rights of the non-custodial parent if he has misused his right or breached a duty imposed by the curt.
Virtual Visitation and its Importance
With the outbreak of the Covid-19 crisis, everything shifted to virtual. Physical Visitation and interaction with a non-custodial parent during Covid was not possible, and so virtual interaction was also considered a right to Visitation. Virtual Visitation is the concept that allows the non-custodial parent to visit and communicate with their child through virtual means. It is a technology-driven right that allows parents to communicate with their children even when they are physically unable to do so. It is also referred to as e-visitation or e-access. Virtual Visitation cannot replace physical visitation but it can be used as an alternative to it. This can benefit a parent-child relationship and the non-custodial parent can enjoy the company of the child, he/she can help him in doing homework, read a story, or can watch each other’s facial expressions. The court can grant this type of Visitation under several circumstances:
- Child’s best interest– The decisions related to custody and visitation are always made for the welfare of the child. The Court may permit virtual visitation if it does not interfere with the child’s well-being and upbringing.
- Separations involving long-distance– If both the parents of the child are living far away and have long-distance then virtual visitation can be the best alternative. The relocation of parents to separate states or countries can widen the gap between parents and their children. However, the ability to visit virtually improves their bond while also lowering travel and other visitation expenditures.
- Circumstances requiring increased contacts– Virtual visitation is a safe and fortunate way to uplift contact between the non-custodial parent and the child. This could be advantageous in circumstances where the two have a draining relationship. It can also be advantageous in situations where the child believes the non-custodial parent is not involved enough in their life.
Under various circumstances, the court can deny the right to virtual visitation. The factors responsible for denying virtual visitation are:
- Verbal Abuse– The court can deny the visitation right to the non-custodial parent if he/she is verbally abusing the child or he/she has threatened the life of the child. If the parent who has verbally abused the child proves that the visitation is in the welfare of the child the court can grant him/her the right to visitation.
- Emotional Harm– The court can also deny the visitation right of the non-custodial parent if that parent is causing any sort of emotional harm to the child. Emotional injury is subjective and varies depending on the circumstances; a claim for denial of visiting rights must usually be backed up by testimony from a psychologist, school counsellor, or other mental health professional.
- Child’s Wishes– If the child is old and mature enough to decide whether he wants to meet the non-custodian parent or not then it depends upon his/her discretion. If the child does not wish to meet the non-custodian parent then the court or the parents cannot force him to meet either virtually or physically.
Visitation rights are granted to the non-custodial parent for the welfare of the child so that he/she can enjoy the company of the non-custodial parent. In various circumstances, the non-custodial parent is awarded to spend substantial time with the child. The court determines the visitation schedule and the rights of the non-custodial parent over the child. Visitation must be considered as something that is done for the child’s benefit. Visitation rights can be granted to grandparents as well as biological parents and any other relative with whom the child is attached. Due to the Covid-19 crisis, the courts have recognized “Internet visitation” or “electronic visitation” and it has been hailed as a pressing need. The Indian judiciary has now recognized the importance of virtual visiting and has enacted legislation allowing judges to mandate online or electronic visitation in custody cases.
Edited by: Joshua Joseph