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India has not signed the Hauge Convention on child custody laws till date. This has created difficulties for couples living abroad in exercising their 'visitation rights' in the matter of child custody. It may not be possible for one of the parents to bring the child to India even for religious or social occasions if the other parent objects.

This is what happened in a recent case decided by the Supreme Court of North Carlonia, USA: the mother was awarded child custody by a New Jersey Court and the father was awarded visitation rights.

The mother shifted to NC to a place more than 300 miles from the father's residence in NJ. The father had to travel to more than 300 miles for exercising his visitation rights for meeting with the child every week-end. So far so good. No complaints.

The father wanted to bring the child for a family get-together in India and applied to the NC court for appropriate orders. The mother opposed child's India visit on the ground that once taken to India, the father may obtain an Indian passport for the child and that she may never get the custody of the child.
The mother produced a letter from a lawyer of Supreme Court of India who certified that since India is not a signatory to Hague Convention, the mother's custody right granted by US Court may not be enforced if the child is brought to India. This persuaded the NC court to decline request made by child's father for a visit to India. The father thus could not bring the child to India for a family get-together.
There had been cases when one of the parents, exercising visitation rights, had brought the child India violating custody orders passed by the foreign courts. In several cases the courts in India had enforced a custody order passed by foreign court though the same is not binding in India. However, the legal position is vexed. In the absence of a clear law on the subject the matter is left to the court for decision on case to case basis.

It is high time that appropriate law is enacted clarifying legal position in child custody matters since millions of persons of India origin are settled abroad who may be facing this piquant position in the absence of clear laws on the subject.

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