Calcutta High Court Notifies Mandatory Child Access and Custody Guidelines Along With Parenting Plan: A New Era in Family Law Jurisprudence

Introduction

On September 26, 2025, the Calcutta High Court took a landmark step in family law jurisprudence by formally approving and publishing the Mandatory Child Access and Custody Guidelines on its official website[1]. This development marks a significant milestone for the State of West Bengal and the Union Territory of Andaman and Nicobar Islands, which previously lacked appropriate guidelines to address the complexities of child custody disputes. The introduction of these guidelines represents a progressive shift towards prioritizing the best interests of children caught in parental disputes while establishing a structured framework for determining custody and visitation rights.

The significance of these guidelines extends beyond mere procedural formality. They embody a judicial recognition that child custody matters require sensitivity, structure, and a child-centric approach rather than parent-centric considerations. The guidelines aim to minimize the psychological trauma that children experience during custody battles and ensure that judicial decisions are made with their welfare as the paramount concern. This article examines the regulatory framework governing child custody in India, analyzes the key provisions of the Calcutta High Court guidelines, explores relevant case law, and discusses the broader implications of this development for family law practice.

The Legal Framework Governing Child Custody in India

The Guardians and Wards Act, 1890

The primary legislation governing child custody matters in India is the Guardians and Wards Act, 1890, which provides a secular legal framework applicable across religious communities[2]. This colonial-era statute was enacted to consolidate and amend the law relating to guardians and wards, with the objective of providing a uniform law applicable to all classes of British India subjects. Despite being enacted over a century ago, the Act remains the foundational legislation for guardianship and custody matters in India.

The Guardians and Wards Act establishes the jurisdiction of courts in guardianship matters and sets forth the principles for appointing guardians. Under this Act, the District Court has the authority to appoint or declare guardians for the person or property of a minor. The Act empowers courts to direct any person having custody of a child to present the child before the court, ensuring judicial oversight in custody determinations. The legislation recognizes that guardianship involves both the custody of the minor’s person and the management of the minor’s property, treating these as distinct but related aspects of guardianship.

The Act’s provisions regarding the welfare of the minor have been consistently interpreted by Indian courts to mean that the child’s welfare supersedes all other considerations, including parental rights. Courts exercising jurisdiction under this Act are vested with parens patriae powers, enabling them to act as the ultimate guardian of minors and make decisions that serve the child’s best interests. The Act provides flexibility to courts in fashioning remedies appropriate to each case’s unique circumstances, recognizing that rigid rules cannot adequately address the diverse situations that arise in custody disputes.

The Hindu Minority and Guardianship Act, 1956

For Hindus, the Hindu Minority and Guardianship Act, 1956 provides additional provisions specific to the community[3]. This Act defines the natural guardians for Hindu minors and establishes their rights and responsibilities. According to the Act, the father is the natural guardian of a Hindu minor for both the minor’s person and property, followed by the mother. However, the Act makes a significant exception for children below the age of five years, stating that the custody of such young children ordinarily remains with the mother.

The Act recognizes that the mother’s role is particularly crucial during a child’s tender years when the need for maternal care and nurturing is greatest. This provision reflects the legislative acknowledgment of the special bond between mother and infant child and the importance of continuity in caregiving during formative years. The Act also specifies that after the mother, other relatives may serve as natural guardians in a prescribed order of priority, ensuring that children have appropriate guardianship even in circumstances where both parents are unavailable.

The Hindu Minority and Guardianship Act operates in conjunction with the Guardians and Wards Act, with courts considering provisions from both statutes when adjudicating custody disputes involving Hindu families. The personal law provisions do not override the fundamental principle that the welfare of the child is paramount; rather, they provide guidance on presumptive guardianship while allowing courts to deviate from these norms when the child’s welfare demands a different arrangement.

Personal Laws of Other Religious Communities

Different religious communities in India are governed by their respective personal laws regarding custody and guardianship. Muslim personal law provides that the custody of a male child remains with the mother until the age of seven years and a female child until puberty, after which custody typically transfers to the father. Christian personal law, governed primarily by the Divorce Act and the Indian Christian Marriage Act, does not prescribe specific age-based custody rules but leaves custody determinations to judicial discretion guided by the child’s welfare.

Despite the existence of community-specific personal laws, Indian courts have consistently held that the Guardians and Wards Act provides an overarching framework that applies across religious lines. When conflicts arise between personal law provisions and the child’s welfare, courts invariably prioritize welfare considerations, recognizing that children’s rights transcend religious boundaries. This approach ensures that all children in India receive protection under a uniform standard that places their interests above religious or customary practices.

Constitutional Imperatives and Children’s Rights

The Indian Constitution does not explicitly address child custody matters, but several constitutional provisions have significant bearing on how courts approach such cases. Article 15(3) of the Constitution empowers the State to make special provisions for women and children, recognizing their vulnerability and need for protective measures. Article 21, which guarantees the right to life and personal liberty, has been interpreted by the Supreme Court to include the right to a dignified life, which for children encompasses the right to grow up in a nurturing environment that promotes their physical, mental, and emotional development.

India is also a signatory to the United Nations Convention on the Rights of the Child, which has influenced judicial thinking on custody matters. The Convention emphasizes that in all actions concerning children, the best interests of the child shall be a primary consideration. Indian courts have increasingly incorporated this international standard into their jurisprudence, recognizing that children possess independent rights that deserve protection irrespective of parental claims.

The Calcutta High Court Child Access and Custody Guidelines: Key Features and Provisions

Background and Development

The Mandatory Child Access and Custody Guidelines published by the Calcutta High Court represent a culmination of evolving judicial thinking on custody matters and recognition of the need for standardized procedures. The State of West Bengal and the Andaman and Nicobar Islands had been operating without comprehensive guidelines, resulting in inconsistencies in how different judges approached custody disputes. The absence of uniform guidelines often led to prolonged litigation, unpredictable outcomes, and increased stress for families navigating the legal system.

The development of these guidelines involved consultation with legal experts, child psychologists, social workers, and family law practitioners. This multidisciplinary approach ensured that the guidelines address not only legal considerations but also the psychological and developmental needs of children. The guidelines draw upon best practices from other jurisdictions and incorporate insights from research on child development and the impact of parental separation on children.

Mandatory Parenting Plans

One of the most significant features of the Calcutta High Court child access and custody guidelines is the requirement for mandatory parenting plans in custody proceedings[4]. A parenting plan is a comprehensive document that outlines how parents will share responsibilities for their children’s upbringing following separation or divorce. The guidelines mandate that parents, with the assistance of counselors, must draw up an interim visitation plan within one week of receiving summons in custody proceedings.

This requirement represents a shift from adversarial litigation toward collaborative problem-solving. By requiring parents to develop parenting plans early in the proceedings, the guidelines encourage parents to focus on practical arrangements rather than engaging in acrimonious battles over custody labels. Parenting plans typically address various aspects of child-rearing, including daily routines, educational decisions, healthcare, religious upbringing, holiday schedules, and vacation arrangements. The requirement to develop these plans with counselor assistance ensures that parents receive professional guidance in creating arrangements that serve their children’s needs.

The emphasis on parenting plans reflects contemporary understanding that children benefit most when both parents remain actively involved in their lives despite the breakdown of the parental relationship. Research consistently shows that children adjust better to parental separation when they maintain meaningful relationships with both parents and when parents can cooperate in meeting their needs. Parenting plans facilitate this cooperation by establishing clear expectations and reducing opportunities for conflict.

Joint Custody Preference

The guidelines express a clear preference for joint custody arrangements wherever feasible[5]. Joint custody recognizes that children generally benefit from maintaining close relationships with both parents and that parental separation should not result in the loss of either parent from the child’s life. This preference represents a departure from traditional custody models that typically designated one parent as the primary custodian while relegating the other parent to periodic visitation.

Joint custody can take various forms, including joint legal custody where both parents share decision-making authority regarding major aspects of the child’s life, and joint physical custody where the child spends substantial time living with each parent. The guidelines recognize that joint custody arrangements require a degree of cooperation between parents and may not be appropriate in cases involving domestic violence, substance abuse, or other circumstances that compromise child safety.

The preference for joint custody aligns with the principle that children have a right to maintain relationships with both parents and that both parents have continuing responsibilities toward their children regardless of their marital status. However, the guidelines make clear that joint custody is not a rigid rule but rather a starting presumption that can be overcome when circumstances indicate that such an arrangement would not serve the child’s best interests.

Structured Visitation Frameworks

Recognizing that visitation arrangements often become sources of conflict between separated parents, the guidelines provide structured frameworks for visitation schedules. These frameworks offer templates for different visitation arrangements depending on factors such as the child’s age, the distance between parental residences, each parent’s work schedule, and the child’s school and activity commitments. By providing these templates, the guidelines reduce the need for litigation over visitation details and help ensure that children have predictable schedules that provide stability during a period of family transition.

The structured visitation frameworks address both regular visitation during the school year and special arrangements for holidays, school vacations, and significant occasions such as birthdays and religious festivals. The guidelines recognize that flexibility is necessary to accommodate changing circumstances while maintaining consistency that helps children feel secure. They encourage parents to communicate about schedule adjustments and to prioritize their children’s needs over personal convenience or the desire to limit the other parent’s time with the child.

Role of Counselors and Mediation

The Calcutta High Court guidelines place significant emphasis on counseling and mediation as alternatives to adversarial litigation[6]. The requirement that parents work with counselors in developing parenting plans reflects recognition that custody disputes often involve deep emotional issues that benefit from professional intervention. Counselors can help parents process their feelings about separation, improve communication skills, and focus on their children’s needs rather than their grievances against each other.

Mediation provides a structured process through which parents can negotiate custody and visitation arrangements with the assistance of a neutral third party. Unlike litigation, which produces winners and losers, mediation encourages collaborative problem-solving and helps parents develop solutions tailored to their family’s unique circumstances. The guidelines encourage courts to refer custody matters to mediation early in the proceedings, reserving judicial decision-making for cases where parents cannot reach agreement despite mediation efforts.

The emphasis on counseling and mediation reflects understanding that the outcome of custody proceedings is less important than the process through which that outcome is reached. Children benefit when their parents can communicate effectively and cooperate in meeting their needs, skills that counseling and mediation help develop. Moreover, parents who participate in developing custody arrangements are more likely to comply with those arrangements than parents who have decisions imposed upon them by courts.

Judicial Precedents Shaping Child Custody Law

Nil Ratan Kundu v. Abhijit Kundu (2008)

The Supreme Court’s decision in Nil Ratan Kundu v. Abhijit Kundu represents one of the most comprehensive statements of principles governing child custody in Indian jurisprudence[7]. In this case, the Court addressed a custody dispute involving grandparents seeking custody of their grandson against the child’s father. The Court held that in custody matters, the welfare of the child is paramount and supersedes the rights of parents or other individuals seeking custody.

The Court emphasized that welfare of the child is not limited to physical well-being but encompasses the child’s moral, ethical, and emotional development. The judgment recognized that courts must consider multiple factors in assessing welfare, including the child’s age, sex, religion, character and capacity of proposed guardians, the child’s wishes if the child is old enough to form intelligent preferences, and the continuity and stability of the existing custody arrangement. The Court stressed that courts should not mechanically apply presumptions about maternal or paternal custody but must examine each case’s specific circumstances.

Nil Ratan Kundu established several important principles that continue to guide custody determinations. First, the judgment affirmed that the child’s welfare is not synonymous with parental rights, and courts must distinguish between the right of guardianship and the right of custody. Second, the Court held that better financial resources alone do not determine custody, as love, affection, and ability to provide emotional support are equally or more important. Third, the judgment recognized that stability is a crucial element of child welfare, and courts should be reluctant to disturb existing custody arrangements that are working well for the child.

Gaurav Nagpal v. Sumedha Nagpal (2009)

In Gaurav Nagpal v. Sumedha Nagpal, the Supreme Court reiterated the paramountcy of child welfare while emphasizing that courts must examine all relevant factors before making custody determinations[8]. The case involved a custody dispute between parents where the mother had taken the child to India from the United States. The Court held that while international conventions and comity considerations are relevant in international child custody disputes, the welfare of the child remains the foremost consideration.

The Court observed that in determining welfare, courts should consider factors such as the child’s age and sex, the character and capacity of parents, the child’s ordinary wishes if the child is of sufficient age and maturity to form intelligent opinions, and which parent has shown greater affection and care for the child. The judgment emphasized that courts should avoid disturbing arrangements that are working satisfactorily for the child unless compelling reasons exist to do so.

Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka (1982)

This early Supreme Court decision established the foundational principle that the welfare of the child is the paramount consideration in custody disputes, superseding even parental rights[9]. The Court held that when determining custody, courts must focus on what serves the child’s best interests rather than on vindicating parental claims. This principle has been consistently followed in subsequent decisions and forms the bedrock of Indian child custody jurisprudence.

The Thrity Hoshie Dolikuka judgment recognized that while parents have natural claims to custody of their children, these claims are subordinate to considerations of child welfare. The Court observed that factors such as which parent was responsible for marital breakdown are irrelevant to custody determinations, as the focus must remain on the child’s needs rather than apportioning blame between parents. This approach reflects maturity in judicial thinking, recognizing that children should not be used as rewards or punishments in divorce proceedings.

Implications and Implementation Challenges of Child Access and Custody Guidelines

Impact on Legal Practice

The Calcutta High Court child access and custody guidelines will significantly impact how family law practitioners approach custody cases in West Bengal and the Andaman and Nicobar Islands. Lawyers will need to shift from purely adversarial strategies toward more collaborative approaches that emphasize negotiation and problem-solving. The mandatory requirement for parenting plans means that practitioners must be prepared to assist clients in developing comprehensive proposals that address all aspects of child-rearing rather than simply arguing for maximum custody time.

The child access and custody guidelines also place new responsibilities on family court judges, who must ensure compliance with procedural requirements while maintaining focus on substantive justice. Judges will need to carefully review proposed parenting plans to ensure they adequately address children’s needs and do not merely reflect one parent’s preferences imposed on the other. The emphasis on counseling and mediation means that courts will need to work closely with mental health professionals and develop referral networks that can provide timely services to families in custody disputes.

Training and Capacity Building

Effective implementation of the child access and custody guidelines requires extensive training for all stakeholders in the family justice system. Judges and court personnel need training on child development, domestic violence dynamics, substance abuse issues, and other topics relevant to custody determinations. Counselors and mediators must understand the legal framework within which they operate and develop skills specific to working with high-conflict families. Lawyers need education on collaborative law techniques and the psychology of separation and divorce.

The Calcutta High Court will likely need to establish training programs and continuing education requirements to ensure that all professionals working on custody cases have necessary competencies. Professional organizations, including bar associations and mental health professional bodies, can play important roles in developing and delivering training. Academic institutions offering law and counseling programs should incorporate family law and child development content into their curricula to prepare future professionals for practice in this area.

Resource Allocation

The successful implementation of the guidelines depends on adequate resource allocation to family courts. Courts will need additional staff to manage the increased administrative requirements associated with parenting plan review and monitoring. Funding must be available for counseling and mediation services, with provisions to ensure that indigent parties can access these services. Courts may need to establish child custody evaluation units staffed by psychologists and social workers who can conduct assessments in complex cases.

The guidelines may initially increase case processing times as courts and practitioners adjust to new procedures. However, proponents argue that investing resources in front-end processes like counseling and mediation will ultimately reduce litigation by helping more families reach agreements. The guidelines may also reduce the need for post-judgment modification proceedings by establishing more workable initial arrangements that better meet children’s needs.

Monitoring and Enforcement

The guidelines must include mechanisms for monitoring compliance with custody and visitation orders and enforcing those orders when parents fail to comply. Non-compliance with visitation schedules is a common problem in custody cases, often leading to return trips to court and continuing conflict. Courts need procedures for quickly addressing compliance issues and remedies that encourage cooperation while protecting children from exposure to parental conflict.

The guidelines may contemplate various enforcement mechanisms, including contempt proceedings for willful violations, modification of custody arrangements when one parent systematically interferes with the other’s visitation, and referral to parenting coordination services in high-conflict cases. Some jurisdictions have found success with specialized compliance programs that combine monitoring, incentives for compliance, and graduated sanctions for violations. The Calcutta High Court may adopt similar approaches as it gains experience implementing the guidelines.

Comparative Perspectives: Guidelines in Other Jurisdictions

Several other High Courts in India have adopted similar guidelines for child custody matters, providing models that may have influenced the Calcutta High Court’s approach. The Bombay High Court was among the first to formalize custody and access guidelines, recognizing the need for structured approaches to these sensitive matters. The guidelines developed by various High Courts share common themes, including emphasis on child welfare, preference for joint custody, structured visitation schedules, and use of alternative dispute resolution mechanisms.

Beyond India, many jurisdictions have developed statutory frameworks or judicial guidelines for custody determinations. The American Law Institute’s Principles of the Law of Family Dissolution proposes an approximation rule under which custody arrangements should approximate the time each parent spent performing caretaking functions before separation. This approach aims to provide continuity for children while avoiding gender-based presumptions about custody. Other jurisdictions emphasize the importance of maintaining sibling relationships and extended family connections in custody arrangements.

International instruments such as the United Nations Convention on the Rights of the Child and the Hague Convention on the Civil Aspects of International Child Abduction provide frameworks that influence domestic custody law. The emphasis in these instruments on considering children’s views, maintaining family relationships, and protecting children from abduction reflects evolving international consensus on children’s rights. Indian courts increasingly reference international standards in custody cases, demonstrating India’s integration into global human rights jurisprudence.

Future Directions and Reforms for Child Custody Laws in India

Legislative Reform Proposals

While judicial guidelines like those issued by the Calcutta High Court represent important progress, comprehensive legislative reform would provide more uniform standards across India. The Law Commission of India has examined guardianship and custody laws and recommended reforms to address gaps and inconsistencies. Proposed reforms include updating the archaic language of the Guardians and Wards Act, providing specific criteria for courts to consider in custody determinations, and establishing uniform procedures across jurisdictions.

Reform proposals also address the need for specialized family courts with jurisdiction over all family law matters. Currently, custody cases may be filed in civil courts, family courts, or as ancillary proceedings in matrimonial courts, depending on the jurisdiction and nature of the case. This fragmentation creates inefficiencies and inconsistencies. A unified family court system with trained judges, integrated services, and specialized procedures could better serve families experiencing separation and divorce.

Emerging Issues in Child Custody

Child custody law must continually evolve to address emerging family structures and social changes. The increasing prevalence of non-marital cohabitation raises questions about custody rights of unmarried parents. Same-sex couples raising children present issues that traditional legal frameworks did not contemplate. Advances in reproductive technology, including surrogacy and assisted reproduction, create complex questions about legal parentage and custody rights.

The impact of technology on children’s lives presents new custody considerations. Questions about screen time, social media use, online privacy, and exposure to inappropriate content require parents to make decisions that may generate conflict. Custody arrangements need to address these issues, potentially requiring provisions about technology use and parental monitoring. The rise of remote work and geographic mobility creates opportunities for creative custody arrangements but also challenges in maintaining stability for children.

Child Participation in Custody Proceedings

International human rights standards increasingly emphasize children’s right to be heard in proceedings affecting them. While Indian law requires courts to consider children’s preferences when children are old enough to form intelligent opinions, procedures for ascertaining and giving effect to children’s views remain underdeveloped. Future reforms should establish age-appropriate mechanisms for children to express their preferences and concerns without placing them in the middle of parental conflicts.

Child participation mechanisms might include private judicial interviews, appointment of children’s representatives or guardians ad litem, and use of child specialists who can communicate with children and convey their perspectives to courts. Care must be taken to ensure that children’s participation is voluntary, that children receive adequate information about proceedings in age-appropriate language, and that children’s expressed preferences are understood in context rather than treated as determinative. Balancing children’s participatory rights with protection from harmful exposure to parental conflict remains an ongoing challenge.

Conclusion

The notification of Mandatory Child Access and Custody Guidelines by the Calcutta High Court represents a significant advancement in family law practice in West Bengal and the Andaman and Nicobar Islands. These guidelines provide much-needed structure and consistency to custody proceedings while reinforcing the fundamental principle that child welfare must guide all custody determinations. By mandating parenting plans, expressing preference for joint custody, emphasizing counseling and mediation, and establishing clear procedural requirements, the guidelines aim to reduce the trauma that children experience during custody disputes and promote outcomes that serve their long-term interests.

The legal framework governing child custody in India, encompassing the Guardians and Wards Act, personal laws, constitutional provisions, and evolving case law, reflects continuing judicial commitment to protecting children’s welfare. Supreme Court decisions like Nil Ratan Kundu have established that children’s rights supersede parental claims and that courts must consider multiple factors in assessing welfare. The Calcutta High Court guidelines build upon this jurisprudential foundation while providing practical tools for implementing these principles.

Successful implementation of the guidelines will require sustained effort from all stakeholders in the family justice system. Training and capacity building for judges, lawyers, counselors, and mediators is essential. Adequate resources must be allocated to courts and support services. Monitoring mechanisms must ensure compliance with custody orders while addressing violations promptly. As experience accumulates, the guidelines may require refinement to address unforeseen issues and incorporate lessons learned.

The broader significance of the Calcutta High Court guidelines extends beyond their immediate jurisdictional scope. They represent judicial recognition that child custody law must evolve to meet contemporary families’ needs and incorporate insights from child development research and clinical practice. Other jurisdictions may look to these guidelines as models for their own reforms. Legislative bodies may draw upon the guidelines in developing comprehensive custody law reforms. Ultimately, the success of these guidelines will be measured not by their legal sophistication but by their impact on children’s lives, ensuring that children of separated parents receive the love, support, and stability they need to thrive.

References

[1] Calcutta High Court Notifies Mandatory Child Access & Custody Guidelines Along With Parenting Plan. (2025, September 29). LiveLaw. https://www.livelaw.in/high-court/calcutta-high-court/calcutta-high-court-notifies-mandatory-child-access-custody-guidelines-alongwith-parenting-plan-305441 

[2] The Guardians and Wards Act, 1890. India Code. https://www.indiacode.nic.in/bitstream/123456789/2318/1/189008.pdf 

[3] The Hindu Minority and Guardianship Act, 1956. India Code. https://www.indiacode.nic.in/bitstream/123456789/1649/1/195632.pdf 

[4] Child Custody & Parenting: Calcutta High Court Issues Guidelines. (2025, September). LawBeat. https://lawbeat.in/news-updates/child-custody-parenting-calcutta-high-court-issues-comprehensive-guidelines-1532117 

[5] Calcutta High Court. (2025). Notice on Child Access & Custody Guidelines. Official Website. https://www.calcuttahighcourt.gov.in/Notice-Files/general-notice/15363 

[6] Supreme Court Half Yearly Digest 2025: Family Law. (2025, September 30). LiveLaw. https://www.livelaw.in/supreme-court/supreme-court-half-yearly-digest-family-law-2025-305409 

[7] Nil Ratan Kundu & Anr vs Abhijit Kundu, (2008) 9 SCC 413. Indian Kanoon. https://indiankanoon.org/doc/687286/ 

[8] Stability of child is of paramount consideration in custody battle: Supreme Court sets aside Orissa HC judgment granting custody to father. (2024, March 14). SCC Times. https://www.scconline.com/blog/post/2024/03/06/stability-child-paramount-consideration-custody-battle-supreme-court-sets-aside-orissa-hc-judgment-granting-custody-father/ 

[9] The Guardians and Wards Act, 1890. Indian Kanoon. https://indiankanoon.org/doc/1874830/