This recent judgment is probably the first from an Indian High Court which promotes the concept of Shared Parenting based on latest recommendations of various judicial precedents from Indian Supreme Court and various High Courts, international laws, Law Commission report no 257 on Shared Parenting, and United Nations Conventions on the Rights of Child. This can be used by any parent for purpose of using it as a precedent and for guidelines and framework for coming up with a shared parenting plan.
Link to judgment: https://indiankanoon.org/doc/62005291/
Why concept of Shared Parenting is needed?
Excerpts from Para 7, and Para 9 from the judgment:
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Whenever there is opposition by a party for giving custody of the child to another party and vice versa, the conflict can become extreme and aggravated sometimes resulting in dilution of any settlement that could be arrived at between the parties to seek dissolution of their marriage. One cannot underestimate the fact that in the case of separation of parents on account of dissolution of marriage by a decree of divorce, the children of the marriage are most affected physically, emotionally and their upbringing would take a beating.
9. One of the ways to resolve the conundrum is, by the emerging concept of shared parenting. In some overseas jurisdictions, the concept of shared parenting has been in vogue and prevalent but not so well entrenched in India and has been ordered only in a handful of cases. It is necessary to remind ourselves that a child requires both parents, the mother and the father in jointly bringing up the child which would have a holistic impact on the overall growth of the child. This is because both parents have a joint responsibility in bringing up their children as each parent would contribute in a unique way to the mental, physical and emotional/psychological development of the child. Hence, whenever there is a separation between the parents, shared parenting would mean that the joint responsibility would continue subject to certain arrangements being put in place.
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Different between Physical Custody and Legal Custody
In India, most people are unaware of the difference between custody and guardianship. There is generally prevalent mindset in society that “a mother is best for children” which somehow gets translated into the convenient but escapist precept that “ when matrimonial disputes arise between parents leading to separation/divorce, mother should be given full custody” . Given that the custody laws in India as yet do not recognize shared custody but only allow for full custody to one parent and visitation rights (sic) to another parent, it is not surprising that people do not have knowledge of the finer point of child custody (physical and legal) and responsibilities and rights of guardianship.
Para 10 from the judgment explains physical vs legal custody concepts:
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10. In this context, it is necessary to understand two terminologies, namely, joint physical custody and joint legal custody. Joint legal custody means that both parents have equal rights and responsibilities towards the child including the child’s education and upbringing, whereas the joint physical custody would mean, both parents would share the physical custody of the child by spending equal time and having equal contact with the child.
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Shared Parenting – what it means, and what are the parameters
Para 11 from the judgment gives basics of Shared Parenting based on some well-recognized guidelines:
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11. The International Council on Shared Parenting (ICSP) at its conference held at Bonn, Germany, in July 2014 has arrived at certain areas of consensus as under:
(I) That “shared parenting” is defined to include both the shared parental authority (decision making) and shared parental responsibility for the day-to-day upbringing and welfare of the children, between both the parents keeping in mind children’s age and stage of development. Thus, “shared parenting” is defined as the presumption of shared rights in regard to the parenting of children by fathers and mothers who are living together or apart.
(ii) Shared parenting is a post-divorce parenting arrangement for the optimal development of the child including children of high conflict parents. That if there is a 50-50 parent time, it would be an optimal time that each parent could expect during week days or week-ends, as the case may be.
(iii) There is also a consensus that shared parenting orders could be passed even if one parent opposes it. As shared parenting is in consensus with International Human Rights and Constitutional Rights of the children to be raised by both their parents.
(iv) Any judicial discretion to be exercised by the Court must be in the best interest of the children.
(v) Though the shared parenting would not apply to situations where there is violence and child abuse or maltreatment of the child in any form including parental alienation.
(vi) Accessible network of family relationship centers that would render relevant support services and family mediation are necessary and vital for the success of shared parenting.
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Para 21 gives some points about shared custody and parenting plan:
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21. That while preparing a joint parenting plan, care must be taken so that there is no instability or inconvenience caused to the child. Also the expression “joint” or “shared” would not mean mathematical exactitude or precision, as there must be pragmatism and innovation required at every stage. The personal profile of the parent, their educational qualification, residence, economic and social status, etc., would be important factors while developing the joint parenting plan. As there is no legislation as such in India on shared parenting, the same must evolve with judicial interference, innovation and involvement in assessing the requirements of each child.
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Paramount Principle of Welfare of Child
Many SC and HC judgments have already said that Child custody decisions are to be guided solely from point of view of welfare of child. The same principle is given in Para 12 of judgment from one of an older SC judgments from 1982:
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12. At the outset, it would be useful to refer to a decision of the Hon’ble Supreme Court in the case of Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka, [(1982) 2 SCC 544], wherein it has been observed as under:
“17. The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the court has a special responsibility and it is the duty of the court to consider the welfare of the minor and to protect the minor’s interest. In considering the question of custody of a minor, the court has to be guided by the only consideration of the welfare of the minor.”
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Some myths about Child Custody
Above mentioned principle of Welfare of Child is very important for people who are stuck on points mentioned in various bare acts like HMGA etc, and it seems many lawyers also argue using these points which actually don’t hold much legal force since Welfare of Child principle is paramount compared to statutory clauses. Some of these convenient myths are:
1. Father is preferred natural guardian of child. This statutory provision has been overridden by SC judgment in Githa Hariharan & Anr vs Reserve Bank Of India. Also this has already been recommended to be removed in Report no 257 of Law commission on Shared Parenting.
2. Custody of child less than 5 years will be with the mother. Again, this principle also known as “tender age doctrine” cannot supersede Welfare of Child principle. So age of child cannot be the paramount consideration or a sole deciding factor, howsoever “natural” it may seem at first sight.
Moving from Rights of parents, to Responsibilities of parents, and Rights of Children
Our custody laws still refer to concept of full physical custody to one parent, and visitation rights to another parent. So one parent is treated like a rightful master, and other parent becomes like a visitor in child’s life! Statutory laws like Section 26 of Hindu Marriage Act also refer to word visitation in the same context and those sections need an overhaul.
From para 13 of judgment:
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13. Justice V. Ramasubramanian, as His Lordship was at the Madras High Court (now at the Apex Court), at paragraphs 31, 32, 41 and 48 of his judgment dated 21.03.2011, in the case of Mr.S.Anand vs. Ms.Vanitha Vijaya Kumar and another, [(2011) 4 Mad LJ 494], has observed as under:
“31. It is quite unfortunate that the Courts still dabble with the age old concepts of custody and visitation rights. These terms emanate from a rights regime rather than a responsibilities regime. Today the emphasis has shifted from the regime where we were concerned with the rights of the parents over the child, to a regime where we should be concerned about the responsibilities of the parents towards the child. After the advent of the Children Act, 1989 in U.K., the old terminology of “custody”, “guardianship” and “custodianship orders”, have gone {see Cheshire and North’s Private International Law-Thirteenth Edition-Lexis Nexis Butterworths Publication (page 857)}. Instead, Section 8 of the Act, uses the terms “residence” and “contact” (or access). Taking the law from the rights regime to the responsibilities regime, the Hague Conference concluded a Convention in 1996 known as “Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility for the Protection of Children”. The provisions of this Convention lay emphasis on parental responsibility and it requires that the child should be treated as an individual and not simply as an appendage of its parents.
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United Nations Convention of Rights of the Child
United Nations Convention of Rights of the Child has many good and just concepts related to rights of children to have access to both parents, right to identify, safety, and so on, many of which are also covered in this article.
Para 14 of the judgment mentions UNCRC and also several of the articles which are pertinent to this case and to all cases of shared custody:
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14. The United Nations Convention of Rights of the Child, 1989 is an International Treaty which encompasses civil, political, economic, social, health and cultural rights of children, to which India is a signatory. The quintessence of the right of the child in the context of separated parents is that a child should not be separated from his or her parents against his will except when the court determines so in accordance with the applicable law, to the effect that such separation is necessary and in the best interest of the child.
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Shared Parenting laws and concepts in other countries
Para 15, 16, 17 of the judgment give brief of shared parenting and joint custody laws in UK, Netherlands, Australia, South Africa:
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15. Thus, the concept of shared parenting would assume greater importance after the divorce of parents by a dissolution of their marriage. Questions such as custody and visitation rights would then assume significance in the context of the responsibilities of the parents towards their children. Thus, the concepts such as “joint legal custody” or “joint physical custody” have emerged over a period of time in several legal regimes. In Australia, the Family Law (Shared Parental Responsibility) Amendment Act, 2006 has introduced changes to the original Act of 1975 I.e., Family Law Act, 1975. The object of the amendment is to encourage shared and co-operative parenting after the separation of parents, bearing in mind the best interests of the child which is the paramount consideration. While considering the same, the factors such as compatible parenting, co-operation, degree of maturity, attitude and behaviour of the parents and the willingness to communicate with other parent are considered. In United Kingdom, joint custody arrangements take into consideration the welfare principles which are in the interest of the child.
16. The Dutch Parliament in 1996 passed a law mandating that joint legal custody as the presumed standard for post-divorce parenting in the Netherlands. From the year 2009 onwards, all divorces are accompanied by a parenting plan based on the assumption of the shared parenting system. If no plan can be agreed upon or the plan is not amenable, the Judge has discretion to send the divorcing parents to a mediator in order to acquire such a plan before continuing the divorce proceedings. The plan must include: the division in the care and parenting tasks; how to inform and consult each parent on parenting the children and the costs of caring and parenting the children, etc.
17. The Children’s Act No.38 of 2005 in South Africa deals with parental responsibility to include the responsibility and the right (a) to care for the child; (b) to maintain contact with the child; (c) to act as guardian of the child; and (d) to contribute to the maintenance of the child. Shared parenting norms are also prevailing in Canada, Singapore, Kenya, etc. [*Source: Article on “Shared Parenting System vis-à-vis Custody of Child – Is India in need of Legislation for Caring Children?” By CAESAR ROY, Assistant Professor in Law, Midnapore Law College, Vidyasagar University, Midnapore, Paschim Medinipur, West Bengal, published in SCC Online, (CNLU LJ (6) [2016-17] 65).]
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Shared Parenting paper by Law Commission of India
This is probably the first judgment by an Indian High Court giving credence to the Report No 257 of Law Commission of India. (I am aware of one Family Court judgment which has referred to it already).
Excerpt from Para 18 is given below. Full text of Paras 18 contains excerpts of Report No 257.
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18. The Law Commission of India had released a Consultation Paper on “Adopting a shared parenting system in India” and after several rounds of discussions and deliberations, the Commission expressed the following views:
(I) “strengthening the welfare principle in the Guardians and Wards Act, 1890 and emphasize its relevance in each aspect of guardianship and custody related decision- making;
(ii) providing for equal legal status of both parents with respect to guardianship and custody;
(iii) providing detailed guidelines to help decision-makers assess what custodial and guardianship arrangement serves the welfare of the child in specific situations; and
(iv) providing for the option of awarding joint custody to both parents, in certain circumstances conducive to the welfare of the child.”
The above could be found in 257th Report titled “Reforms in Guardianship and Custody Laws in India”. Thus, the jurisprudence on the custody of the minor children of separated parents has evolved over the decades and both parents are recognized as having equal responsibilities in the custody of their children and thus, the concept of shared parenting is gradually emerging in the legal firmament of India also.
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Wishes and preferences of child in deciding custody issues
Interview of child and wishes of child is many a time a hurdle in both deciding on child access, as well as a way to delay the proceedings into several years. It is observed that there is quite a bit of subjectivity here, too.
Some relevant paras from the judgment are given below:
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c) Sub-section (3) of Section 17 of the Act states that if the minor is old enough to form an intelligent preference, the court may consider that preference. Thus, along with the concept of welfare of the minor, the inclination and opinion of the minor has assumed significance. Thus, the Court must initially infer that the minor is intelligent enough to make a preference, having regard to his age, upbringing and such other factors. In many cases, the minor’s inclination or opinions have been the deciding factors. Even then, it is ultimately the welfare of the child which will be a paramount consideration. It is not possible to lay down any rules governing the determination about the welfare of a minor, but each case has to be decided on its own facts and circumstances. If a minor is capable of understanding what is happening around him, his education and future prospects, his views and desires have to be given weightage and it is the responsibility of the Court to ascertain the desire in person. At the same time, the wishes of the child are not the only governing factor. The willingness of the minor and his wishes is one of the factors to be considered under Section 17(3) of the Act.
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e) Though the said provision would apply in any proceeding arising under that Act, it nevertheless has a relevance to the case at hand. What needs to be emphasized on a reading of Section 26 of the Act is that the matter of custody of the child has to be decided consistently with the wishes of the child and it is an important factor to be taken into consideration. However, at the same time, one has to bear in mind that the wishes of the child is based on an intelligent decision and not tutored by others. This also would depend upon the age of the child and its capacity to have an independent and intelligent mind.
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Child not an appendage of parents, child as an individual, parental responsibility
Para 23 of judgment:
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23. We have referred to the principle of shared parenting which is defined to include shared parenting authority as well as shared parenting responsibility in the day-to-day upbringing and welfare of the children, as it has evolved over the decades, in the context of custody of minor children. The Hon’ble Supreme Court in a catena of decisions has held that in dealing with the matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor’s interest. Over a period of time, the concepts of custody and visitation rights have transformed themselves into the responsibility of parents towards children. A central theme of this transformation is the emphasis on parental responsibility which requires that the child should be treated as an individual having his or her own capabilities and limitations as well as independent opinions. A child is not an appendage of his parents. The focus of attention must actually be on the child.
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Father no longer natural guardian of child
Para 25 is especially needed for those who are quoting from bare acts without telling that those provisions have long been overridden:
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25. In India, the norm that the father is the natural guardian of the child is no longer valid and there have been instances where the mother is given the custody with visitation rights to the father or vice versa. In Kumar V. Jahgirdar vs. Chethana Ramatheertha, [(2004) 2 SCC 688], (Kumar V.Jahgirdar), the Hon’ble Supreme Court observed that the mother is not always the natural guardian and the custody need always be given to her. In Rosy Jacob vs. Jacob A.Chakramakkal, [(1973) 1 SCC 840], (Rosy Jacob), the Hon’ble Supreme Court observed that it is necessary to strike a just and proper balance between the requirement and welfare of the minor child and the rights of their respective parents, over them. In Gaurav Nagpal vs. Sumedha Nagpal, [(2009) 1 SCC 42], (Gaurav Nagpal), while dealing with Section 26 of the Hindu Marriage Act, 1955, it was observed that with respect to the custody, maintenance and education of the minor children, orders could be passed consistently with their wishes, wherever possible. That while considering the issue of custody of minor child, the paramount consideration is the welfare of the child and not the rights of the parents under a statute for the time being in force. The departure from the principle that the father is the natural guardian of the child was more emphatic in Sheila B. Das vs. P.R. Sugasree, [(2006) 3 SCC 62], (Sheila B.Das), wherein it was observed that either parent, provided he or she is financially stable and able to take care of the child, is fit to be the guardian. In the said case, the custody of the twelve year old minor daughter was given to the father (an advocate) with visitation rights to the mother (a doctor).
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Also refer to Githa Hariharan & Anr vs Reserve Bank Of India wherein Section 6 of HMGA was overridden.
Shared Parenting arrangement and parameters
In another judgment of Karnataka HC, equal 6 months custody was given to both parents. The same is given in para 15 of judgment:
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26. This Court in K.M.Vinaya vs. B.R.Srinivas, [2013 SCC Online Kar 8269], (K.M.Vinaya) modified in [(2015) 16 SCC 405], held that both the parents are entitled to get custody for the sustainable growth of the minor child and the following directions were issued:
(I) ” The minor child was directed to be with the father from 1st January to 30th June and with the mother from 1st July to 31st December of every year.
(ii) The parents were directed to share equally, the education and other expenditures of the child.
(iii) Each parent was given visitation rights on Saturdays and Sundays when the child is living with the other parent.
(iv) The child was to be allowed to use telephone or video conferencing with each parent while living with the other.”
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Physical custody and access arrangements in this case
On perusing the judgment, it seems that no joint parenting plan could be mutually agreed between the parents even after the court giving them multiple dates to do so. In the end, the court has decided on a shared parenting plan. The same is given below, and one can use these as a framework to come up with own parenting plan for child:
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Bearing the above aspects in mind, we think that shared parenting of the minor child XXX between the parents would be in the following manner until the child attains eighteen years of age. If circumstances are suitable the same arrangement could be continued with required modifications thereafter also:
(I) Considering that the summer vacation of the schools is two months in a year and bearing in mind that the academic year would commence on 01st June of every year and end on 31st March of the succeeding year, at the outset, we exclude two months namely April and May of every year from the arrangement to be made for shared parenting during the year, while delineating a separate arrangement for the said period of summer vacation.
(ii) At the beginning of the new academic year, assuming, that it commences on 1st June, two days prior to the commencement of the school, the child will move to the father’s residence and be with the father till 31st October. From 01st November, the child will be with the mother till 31st March or till the commencement of the summer vacation, whichever is later.
(iii) When the summer vacation commences, fifty per cent of the said vacation shall be spent by the child with the father in the initial part of the vacation and the subsequent period of the summer vacation will be spent with the mother;
(iv) Similarly, during Dasara vacation, depending upon the number of days the school is closed, the child could spend fifty percent of the said vacation with the mother in the first instance and with the father later and then return to the mother on November 01st of the year;
(v) Similarly, in winter vacation, the child will spend his time equally between the parents. When the winter vacation commences, on the first day of the winter vacation, the child will proceed from the mother’s residence to the father’s residence and in the second half of the winter vacation, the child will return to the mother’s residence and continue to remain with her till the commencement of the summer vacation or 31st March, whichever is later;
(vi) Thus, during the months from June to October (five months), the child will be with the father and during the months from November to March (five months), the child will be with the mother.
(vii) During the aforesaid period, when the child is in the residence of one of the parents, the other parent would have visitation rights, once in two weeks. It shall be on the 2nd and 4th weekend of the month. The parent in whose residence the child is, must ensure that the child shall visit the other parent at 08.00 p.m. on Friday evening and the other must ensure that the child returns on Sunday by 08.00 p.m.
(viii) The child shall be picked up and dropped at the Tirumala Tirupati Devasthanam Temple, Malleshwaram, Bangalore.
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(xiv) As regards major festivals, since the child would be with the respective parent during the aforesaid periods and if the festivals do not coincide during the weekends when the visitation rights are given to the other parent, in that event, the child could spend the festival period with either of the parents alternatively. The flexibility in this regard is on account of the fact that the child may be in the midst of school tests or examinations or due to any other valid reason and hence, strict directions cannot be issued as to where the child must be during the days of festivals. The same could be decided by both parents in consultation with the child, depending upon the academic and co-curricular activities of the child and bearing in mind his health and welfare. Thus, it would be dependent on the paramount interest of the child at the given point of time and the circumstances prevalent at that point of time. This flexibility being provided by the Court should not be taken advantage of by either of the parties by insisting that the child must spend time during the festival in one or the other residence only, rather there must be co- operation between the parties so that the child is able to spend time during the festival with either of the parents or with both the parents, without being discomforted. Hence, we expect that the parties who are educated and who have matured over the years would extend their full co-operation in this regard.
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(b) During holidays, the father will have eighty percent of summer vacations, Dasara vacations and winter vacations immediately on the commencement of the vacation and the mother will have twenty percent vacation, to spend time with the child, which coincides with the period prior to the commencement of the School. In other words, immediately after the vacation commences, the child will move to the father’s residence and during the last twenty percent of the vacation, the child will return to the mother’s residence.
(xvii) The child’s birthday shall be celebrated by the parents jointly, as far as practicable or a consensus could be arrived at in consultation with the child.
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Impact of residence and distances on physical custody and access
In joint parenting plan or any suggested plan, one should also look at the practical aspects of distance between residences of parents, child’s school etc, and come up with a reasonable plan keeping primarily in mind child’s convenience and welfare:
From the judgment:
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(xv) The aforesaid directions are subject to the father of the child shifting his residence in the vicinity of the school or in the vicinity of the mother’s residence so that the child does not have to travel a long distance from Banashankari, where the father presently resides, to the school which is in Basaveshwara Nagar, Bengaluru.
(xvi) In the event, the father is unable to set up residence in the vicinity of the school or in the vicinity of the mother’s residence or until he does so, the following directions would be applicable:
(a) The child will stay in the house of the mother. However, during the second
and fourth week-ends I.e., on Friday evening by 08.00 p.m., the child will move to his father’s residence and on Sunday by 08.00 p.m. return to his mother’s residence.
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Points about Parental responsibilities
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(ix) The parties are restrained from making allegations against the other before the child or in any way prejudice or create a bias in the mind of the child against the other parent.
(xi) It is the duty of the parents to ensure that even though the child is residing with a parent at a particular point of time and the other parent has visitation rights and vice versa during the course of the year, nevertheless there is stability, continuity and a bond with the child so that the child would have the benefit of guidance, support and upbringing by both parents.
(xii) The parents must ensure that the child does not in any way feel uneasy or have discomfort when the child is residing with one of the parents or while he is visiting the other parent. A great responsibility is cast on both the parents to ensure this.
(xiii) Both parents must ensure that the child is comfortable and at ease when residing with one of the parents or visiting the other parent. All care must be taken by the parents to ensure the psychological, social, educational and over-all growth and development of the child. In this regard, there must be a joint effort and co-operation between the parties.
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Points about Legal Custody of child
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(x) All information regarding the health of the child as well as information concerning the school and co-curricular activities, etc., shall be exchanged between the parents.
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