Father’s Right to Parental Access Cannot Be Denied—But Overnight Custody Not in Children’s Best Interests: Kerala High Court

“The right of a parent to interact with their minor children cannot be denied merely on account of strained spousal relations—such contact is integral to a child’s emotional and psychological well-being” — Kerala High Court

In a significant judgment Kerala High Court partially modified a Family Court order granting overnight custody and extended visitation rights to a father, holding that daytime access twice a month would be more consistent with the children’s welfare at this stage.

The Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar affirmed the Family Court’s decision to retain permanent custody with the mother, but disagreed with the grant of overnight custody, citing the young age of the children, their emotional comfort, and the distance between residences.

The Court ruled that the welfare of the children is paramount, and modified the earlier arrangement to restrict the father's custody to two Sundays per month, from 10:00 a.m. to 5:00 p.m., with handover to occur in the Family Court premises.

“Welfare of Children Is Paramount—Parental Alienation Not in Child’s Best Interest”

The appellant–Mini Thomas, mother of two minor children aged 11 and 9, challenged an order dated 14 June 2017 passed by the Family Court, Thrissur, which had granted the father–Shaju custody of the children on second Saturdays and Sundays every month, half of long vacations, and extended periods during festive holidays.

The appellant argued that the respondent had previously attempted to forcibly remove the children from her care, was unfit to care for them, and had displayed aggressive behaviour toward her and her relatives. She submitted that allowing the children to stay overnight with him would compromise their safety and emotional stability.

The Court, after reviewing the evidence, and having interacted with the children, concluded:

“We find no material to conclude that permitting the respondent to interact with the children at regular intervals would in any manner be detrimental to their welfare. On the contrary, the father’s company is essential for their social, psychological, and emotional development.”

However, the Court also found it premature and impractical to allow overnight custody in the current circumstances, observing:

“Having regard to the fact that the children have been residing with the appellant for several years, and that the respondent presently lives at a distance from their residence and school, we are of the view that regular overnight custody may not presently be in the best interests of the children.”

“Contact With Both Parents Is Crucial—Father’s Right to Access Cannot Be Denied Based on Allegations Alone”

While the mother relied heavily on multiple allegations against the father—including prior complaints, FIRs, medical reports, and submissions made before the Child Welfare Committee, the Court clarified that unless such allegations are substantiated and demonstrated to be detrimental to the child’s welfare, they cannot be the sole ground for denying a parent's access.

“Mutual accusations by the parents cannot become a tool for alienation. Unless contact with one parent demonstrably harms the child, such contact must be facilitated.”

The Court relied on the welfare principle under Section 25 of the Guardians and Wards Act, 1890, which mandates that the best interest of the child shall guide all custody decisions.

Modified Visitation Scheme: Custody Twice a Month, Handover in Court, Provision for Video Calls and Vacation Access

Recognising the need for a balanced and structured visitation arrangement, the High Court modified the Family Court’s order as follows:

1. Daytime custody granted to the father on the 2nd and 4th Sundays of every month, from 10:00 a.m. to 5:00 p.m.

2. Handover and return to take place in the Family Court premises at Thrissur, ensuring a neutral and secure environment.

3. The father must inform in advance by email and telephone if he cannot attend on any scheduled Sunday. The mother was directed to furnish her contact details (email ID and phone number) within seven days.

4. During festive and summer vacations, the father may seek additional day custody by moving the jurisdictional Family Court, which may decide based on the children’s welfare and any written submissions from the mother.

5. The arrangement is subject to modification upon a change in circumstances or exigencies, and either party is at liberty to move the Family Court for suitable alterations.

“We deem it appropriate to safeguard the rights of both parents while ensuring that the children are not subjected to emotional conflict or instability. Our primary lens is that of the child’s well-being.”

Overnight Custody Denied for Now, But Father’s Parental Bond Must Be Preserved Through Regular Contact

This judgment reflects a balanced approach to custody disputes, recognising the right of both parents to participate in a child's life, without compromising the child’s security, comfort, and stability. It affirms that courts must tailor access rights not as a matter of parental entitlement, but strictly in accordance with the child’s needs and best interests.

The Court acknowledged the emotional strain involved but asserted:

“Parental estrangement must not be allowed to distort a child’s relationship with either parent. Courts are duty-bound to prevent such alienation unless compelling evidence mandates otherwise.”

Date of Decision: 13 October 2025