Mere wish of minor to reside with one parent not sufficient in custody cases: Kerala High Court

The Kerala High Court recently observed that a child’s wish to stay with one parent cannot by itself determine custody and that the child’s welfare is of paramount importance.

A Bench of Chief Justice Soumen Sen and Justice Syam Kumar VM made the finding in a petition filed by a mother residing in Canada, seeking custody of her 12-year-old son, who was residing with the father.

While rejecting the father’s submissions that the minor wishes to reside with him in Kerala, the Court observed that the child’s welfare is of paramount importance.

“The Court, while deciding the welfare of the child, is required to take into consideration the wishes of the child, but the welfare of the child being the paramount consideration, the same should be borne out from the facts and circumstances of each case. The mere wish of the child is not sufficient to give custody of the child to one parent over the other,” the Court stated.

The woman alleged that her estranged husband had failed to return the custody of their son while she was visiting her sick father in India.

The Court appreciated that the mother allowed the child to spend time with his father with a view to fostering a healthy bond between them. However, it noted that when the mother was set to leave for Canada, the child was not brought back to her by the father.

The father’s counsel submitted that the minor does not wish to return to Canada to his mother. He claimed that this arrangement was mutual and consensual. 

The Court noted that the child had been in the mother's custody in Canada since the couple separated in 2024 and had been pursuing his studies there itself. It observed that the child had never before expressed any desire to stay with the father in Kerala. Moreover, the father had never moved any court seeking custody of the child.

“Matured thinking is indeed necessary in such a situation to decide as to what will ensure the benefit of the child and his welfare. A child torn between his love and affection for both parents may not be in a position to take a conscious decision or express an intelligent preference,” the judgment stated. 

Further, the Court noted that as per a ‘child support arrangement’ dated January 2024 submitted to the Canada Revenue Agency, the father had relinquished the custody of the child and agreed that the mother would be the primary caregiver and she would bear all expenses.

While considering the child's alleged wish to stay with his father, the Court observed that it is likely that the child developed an affection towards his father while staying with him in Kerala. However, it stated that prolonged stay with the father may not be in the best interests of the child.

Thus, the Court directed the father to immediately hand over the child to the mother, who was present in Court and was to fly back the next day.

The father will be allowed to interact with the child through video conferencing as and when required, it said.