Child Custody in Pakistan; A Child-Centric Approach

The issue of child custody in Pakistan remains one of the most emotionally charged and complex legal matters. With the evolving structure of families and increasing disputes over custody, it is imperative to adopt a modern and child-focused approach. The current legal framework, primarily governed by the Guardians and Wards Act of 1890, needs significant reforms to align with contemporary realities and ensure the best interests of the child are protected.

Challenges in Pakistan’s Child Custody System

1. Limited Understanding of Child Psychology and Family Dynamics

Judges and family courts often lack exposure to modern psychological research on child development, which can lead to decisions that do not fully consider a child's emotional and psychological needs. Courts must integrate social science research into their rulings to ensure justice is delivered with a focus on child welfare.

2. The Role of Arbitration and Counselling

Arbitration provisions under the Muslim Family Laws Ordinance, 1961, attempt to resolve family disputes, yet they suffer from major shortcomings. Arbitration councils, often untrained and unregulated, fail to mediate effectively in sensitive matters like divorce and custody. The absence of specific criteria for arbitrators results in ambiguity, and most arbitration efforts lack serious implementation.

3. The Impact of False Allegations

A significant issue in custody battles is the prevalence of false allegations. Parents often resort to baseless accusations to gain an advantage, leading to prolonged legal battles and increasing the adversarial nature of litigation. Courts must take a more rigorous approach to evidence evaluation to minimize the impact of false claims and protect the child from unnecessary trauma.

4. Lack of Robust Evidence in Custody Cases

Evidence plays a crucial role in custody decisions, yet the process of recording and evaluating evidence is often flawed. Custody disputes involve complex issues like allegations of abuse or parental alienation, requiring strong evidence to make informed decisions. However, reliance on oral testimonies without corroborating evidence can lead to unjust outcomes.

The Need for a Child-Centric Approach

1. Psychological Harm from Restrictive Visitation

Restricting a child’s contact with a non-custodial parent can have severe psychological effects, including:

Anxiety, depression, and emotional distress

Difficulty forming healthy relationships

Poor academic performance and social isolation

Increased risk of mental health disorders

Research consistently shows that children benefit from having meaningful relationships with both parents, even after divorce or separation. Courts must ensure that visitation rights prioritize the child’s well-being rather than serve as a punitive measure against a non-custodial parent.

2. Addressing the Issue of Surety Bonds

The requirement of surety bonds for non-custodial parents to access their children is highly imbalanced. It places an undue burden on one parent while the custodial parent faces no similar obligations. This imbalance can lead to parental alienation and potential child abduction, further harming the child’s stability.

3. Need for Judicial Oversight and Monitoring

Custodial arrangements in Pakistan lack effective monitoring. Courts often rely on outdated precedents rather than assessing the evolving needs of the child. There is an urgent need for periodic reviews and evaluations of custodial decisions to ensure they continue to serve the child’s best interests.

4. Reforming Child Interviews in Court

Children are often subjected to traumatic questioning in court without adequate psychological support. Courts need to adopt child-friendly interview techniques that minimize stress and ensure that children’s voices are heard in a supportive environment.

Policy Recommendations for Family Law Reform

Shared Parenting Arrangements: Amend the Family Courts Act, 1964, to incorporate shared parenting principles, ensuring both parents maintain meaningful relationships with their children.

Joint Guardianship: Introduce legal provisions allowing both parents to remain actively involved in a child’s upbringing, regardless of marital status.

Defining ‘Welfare of the Minor’: Establish clear guidelines for determining child welfare to prevent subjective and inconsistent rulings.

Psychological Evaluations: Family courts should employ psychologists to assess cases involving allegations of parental alienation or emotional manipulation.

Penalizing Breach of Visitation Rights: Introduce penalties for parents who violate court-ordered visitation schedules to ensure compliance.

Streamlining the Legal Process: Establish preliminary criteria for filing custody cases to prevent frivolous claims and expedite genuine disputes.

Judicial Training on Child Psychology: Develop specialized training programs for family court judges to enhance their understanding of child welfare and custody matters.

Conclusion

Pakistan’s family justice system faces numerous challenges, including false allegations, inadequate evidence evaluation, restrictive visitation rights, and unbalanced surety bond requirements. These issues prolong litigation and compromise the child's best interests. To address these concerns, legislative and judicial reforms are crucial. By adopting a child-centric approach, integrating psychological insights, and ensuring equitable legal procedures, we can create a fairer, more effective child custody system that truly prioritizes the welfare of the minor.

For expert legal advice on family matters, visit mycase.com.pk—where we simplify legal complexities and provide reliable guidance tailored to your needs.