Difference between Visitation and Custody of minor child between warring parents

A visitation order means an order establishing the visiting times for a non-custodial parent with his or her children. Although the non-custodial parent is responsible for the care of the child during visits, visitation differs from custody because non-custodial parent and child do not live together as a family unit. 

A Matrimonial Petition under Section 6 of Hindu Minority and Guardianship Act, 1956 (Act) was filed by the husband seeking permanent custody of the minor child and also for temporary injunction to restrain the other party (Wife) from taking forcible custody of the child. Husband claimed himself to be native of Mumbai and citizen of India whereas wife an American citizen. Both were living together till differences arose between them causing them to start living separately. The child was in the custody of Husband. Wife in the above said Matrimonial Petition sought interim custody of the minor child which was granted and the husband was assured with visiting rights to the child. This order was challenged by the Husband and the impugned order was quashed and set aside holding thereby that the custody of the child would continue with the husband subject to the wife getting visitation rights in the manner referred to in the order. The trial Court was directed to proceed to dispose of the matrimonial petition as expeditiously as possible.

Thereafter wife filed an application for visitation rights before the trial Court praying therein that the minor son be allowed to be alone with the mother from Monday to Friday at Goa with the condition that the child be produced by the wife on Monday morning at 10.00 a.m. in the trial Court and will be returned back on Friday at 5.00 p.m. in the trial Court. Husband while resisting the application did not objected for the wife to visit the child in three continuous days in each week between 4.00 p.m. and 5.00 p.m. as per the guidelines fixed by the High Court which also provided for supervised visitation and it was further stated that the place of visitation should be Mumbai. 
Three days from Saturday to Monday of every week were fixed as the days for visitation of the child by the wife within jurisdiction of the Court i.e. Mumbai. This order was challenged in the present petition.

It was observed that vide earlier order of the High Court it was ordered that custody of the child would continue with the husband but wife being the mother would definitely have frequent visitation rights of minor child, which shall tentatively be for at least three days in a week. “Frequent” means occurring often or in close succession and cannot mean to be continuous. The impugned order for sharing custody of child between the parties i.e. three days custody to the wife and four days custody to the husband was held to be illegal and hence warranting interference.
Visitation means a non-custodial parent’s period of access to a child. Visitation right means a non-custodial parent’s or grandparent’s Court ordered privilege of spending time with a child or grandchild who is living with another person, usually the custodial parent. A visitation order means an order establishing the visiting times for a non-custodial parent with his or her children. Although the non-custodial parent is responsible for the care of the child during visits, visitation differs from custody because non-custodial parent and child do not live together as a family unit. Wife, in the instant matter, has no permanent residence in India and she had not disclosed any fixed address to reside in Goa and was also found to be suffering from bipolar disorder. The Child was in the custody of husband. Trial Court did not consider all the aspect as to whether the change of environment and custody would be benefited for the welfare of the minor child. It was never intended that custody of the child was to be shared by the wife. The trial Judge had to fix the three days, timings, and place of visitation. 

The custody of the child was ordered to continue with the petitioner subject to the respondent getting frequent visitation rights tentatively for at least 3 days in a week. It was never intended in the earlier order of High Court to hand over continuous exclusive custody of the child to the wife for three days.

Section 9 of the Act provides that jurisdiction to grant custody is by the Court where the child ordinarily resides. In the present case there was no averment with regard to the fact as to where the child ordinarily resides. It was clearly observed that merely residing temporarily in Goa by itself cannot suggest that the child ordinarily resides within the jurisdiction of the Court. Neither the Act of 1956 nor the Act of 1890 is extended to the State of Goa. In the circumstances above, the trial Court was required to direct the husband to make an appropriate averment with regard to the place where the child ordinarily resides and it was therefore incumbent upon the trial Court to have acted in accordance with the above directions of the High Court and prima facie arrived at a decision as to the jurisdiction of the Court, which was not done. Impugned order was held to be erroneous and was accordingly quashed and set aside.

[Arun Sharma vs.  Roxann Sharma]
(Bombay HC, 18.09.2014)