Visitation Rights of Non-Custodial Parents

Visitation rights of a parent who does not have custody are a core issue between separated parents, separated either by divorce or separation. Hereunder, we try to simplify the Visitation Rights of parents for a better understanding and describe how to cope with the situation of parental alienation as a psychological and legal matter.

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Who Are Non-Custodial Parents?

After the dissolution of marriage, either by divorce or khula or any other mode, their children are minors and live either with the father or the mother. The one who does not have custody of the children is a non-custodial parent.

In General, the son, at the age of 7, and the daughter, at the age of 14, would live with their mother, but in exceptional circumstances, custody can be given to the father or someone else who is more appropriate in the eyes of the family court. In this case, the parent who does not have custody would be called a non-custodial parent.

Who Is a Minor?

Minor means a person who, under the provisions of the Majority Act of 1875 (IX of 1875), is to be deemed not to have attained his majority, i.e., who is under 18 years old.

Who Falls in The Definition of Parents

Parents mean mother, father, grandmother, or grandfather, whether maternal or paternal.

Visitation Under Principles of Mahomedan Law by D.F Mulla

Under the Constitution of Pakistan of 1973, Pakistan is an Islamic state. Being an Islamic State, Pakistan follows Islamic laws. There are basic principles that are defined by D. F Mulla, the crux of which is hereunder.

  1. Custody of infants and young children is primarily granted to the children’s mother as a right of Hizanat. In these circumstances, a son below the age of 7 years and the daughter is below 14 years or reaches the age of puberty, stays with the mother. 
  2. The father or the non-custodian parents would have the right to meet the children if otherwise proven dangerous. 

Right of Visitation Under Pakistani Law

Visitation rights under Pakistani law are the major concern of non-custodial parents. No certain mechanism is provided regarding a visitation schedule; however, visitation rights are covered under three major enactments that ascertain the rights of the parents toward their children and the children toward their parents.

The Guardian and Wards Act, 1890:

This Act is the primary legal framework for non-custodial parents to secure meetings and visitation rights with their minor children. Although the Act does not have a specific section directly addressing visitation, courts have interpreted it in favor of non-custodian parents. Key sections that provide guidance are:

  • The applicant seeks guardianship of the minor and along with a petition under Section 7 a separate application under Section 12 (Power to Make Interlocutory Orders) is been filed for the production of minor. The court then, will arrange a visitation schedule, considering the minor’s welfare.
  • In this section, the applicant requests physical custody of the minor. Similarly, an application under Section 12 must be filed to produce the minor in court. After the hearing, the court can fix a interim or chalk out a visitation schedule.

Commonly, an application under section 12 of the Act is the one under which the visitation schedule is chalked out.

The West Pakistan Family Court Act. 1964:

The W.P Family Court Act of 1964 provides for the first time Visitation Rights after amendment in its first schedule of the Act. This was the first time that an act used the word Visitation Rights. After the recognition of Visitation Rights in the Act, the non-custodial parents have the right to file the suit only to the extent of the Visitation Schedule before the Family Court regarding the meeting with the minors. Before the amendment in the 1964 Act, one could only file a petition under the Guardian and Wards Act of 1890.

The West Pakistan Family Court Rules, 1965:

These are the rules that guide the Family Court regarding its procedure.

When a matter of visitation comes before the Family Courts of Pakistan, they gain the status of loco parentis and act for the welfare of the minor children. The rights of the parents towards their children sometimes amalgamate with the rights of the children in the welfare of the minors. 

Procedure of Case for Visitation in Pakistan

To initiate a case for visitation rights in Pakistan, parents, particularly non-custodial parents, can apply through the Guardian and Wards Act of 1890. The applicant seeking guardianship of the minor or requesting physical custody of the minor must file a separate application under Section 12 (Power to Make Interlocutory Orders) for the production of the minor in court. Once the child is produced, the court will consider the welfare of the minor and can set up a visitation schedule for the non-custodial parent.

Application for visitation can be filed independently without seeking custody or guardianship.

In conclusion, the application under Section 12 is the primary legal mechanism through which the court arranges and formalizes a visitation schedule for the non-custodial parent.

Documents Required

  • CNIC or Passport as identity proof.
  • Birth certificate of minor.
  • Marriage registration certificate
  • Special power of attorney (in case of online meeting case)
  • Any document that makes the case stronger

Online Visitation for Overseas Parents

Non-custodial parents, particularly overseas Pakistani fathers, who were previously deprived of meeting their minor children living in Pakistan due to geographical limitations, are now able to stay connected. With advancements in technology, it is now possible for non-custodial parents to meet their children via video calls. The courts ensure that the parent maintains contact with their child even through video calls. This is in the best interest of the child, helping to prevent parental alienation syndrome by allowing the child to know their non-custodial parent. At LEX, we are proud to be pioneers in advocating online visitation rights, enabling overseas Pakistani fathers to enjoy their visitation rights through video calls and the e-court system.

Online Visitation Case Through a Special Power of Attorney

An overseas parent can file a suit for visitation and online meetings with a minor child through a special power of attorney duly attested by a concerned consulate or embassy, as the case may be. (learn more about special power of attorney)

Aspects that The Family Court Considered While Granting Visitation Rights to Non-Custodian Parents

  • Age and Gender of the minor.
  • Health and safety of the Minor.
  • Minor’s well-being and welfare.
  • The child’s comfort level with the non-custodial parent.
  • Bonding of the children with the non-custodial parent.
  • Take into consideration whether the non-custodial parent, if a father, is paying maintenance allowance or not.

Parental Alienation Syndrome and Role of Family Court in Pakistan

Parental alienation syndrome is a psychological effect that occurs when the parents of the minors are separated and one parent holds the custody of the minor. Not meeting with the non-custodial parent affects the minor psychologically.

This syndrome is recognized by WHO in its International Classification of Disease (ICD-11) and then gains momentous acknowledgment worldwide.

This syndrome has severe consequences on the mental and physical health of the child. The Family courts in Pakistan also consider the facts of Parental alienation while granting visitation rights or chalking out the visitation schedule.

Sample of Proposed Visitation Schedule

The visitation schedule is not made under any specific provision. Still, the court uses its judicial mind to view the minor’s welfare and make the visitation schedule. However, we, family lawyers at LEX, always recommend and request court on a visitation schedule that is in the welfare of a child; a sample of our requests or proposed schedule is produced here;

Annual Interim Parenting Visitation Schedule for temporary custody of the minor at the ratio of 50% time of the calendar year is recommended that includes;

  1. An overnight stay each weekend.
  2. Every year, at least two overnight stays are made at the home of the non-custodial parent, such as on the eve of Eid-ul-Fitr, Eid-ul-Azha, Eid-Milad-un-Nabi, and Moharram Holidays.
  3. Half of the Summer / Winter / Spring Vacations, as well as all school vacations, must be shared equally.
  4. 50% of the time of all gazette holidays.
  5. Information to the Non-Custodial Parent if the child falls ill.
  6. If the custodial parent is unable to care for the child, the non-custodial parent should be given the priority right to do so.
  7. Access to the school and information, including the minor’s study reports and medical records. To keep track of his physical and mental health and religious training.
  8. A special time for days important to the child, including his birthday and birthdays of his paternal grandparents, uncles, and first cousins of the minor;
  9. A penal Clause may be included in which if any of the parents does not follow the meeting schedule or causes any kind of hindrance thereto without assigning any plausible justification, then the party contravening the schedule must be penalized to pay the cost for each such violation, and temporary custody of the minor children shall be handed over to the other party.
  10. The non-custodial parent shall be notified about the minor’s present school, allowed to visit the school once a month, and eligible to attend parent-teacher meetings and school ceremonies so that the non-custodial parent can assess the minor’s academic progress and performance.

This type of visitation schedule would be tremendously supportive of the child’s Upbringing and, of course, would contribute to the minor’s best welfare while ensuring equal rights for both parents. 

Important Case Law

It was decided in 2023 CLC 2110 that; while deciding custody and visitation schedules, the welfare of the minor is paramount. Courts should avoid short meetings in the court premises as they hinder bonding with the non-custodial parent, risking the child’s negative perception of that parent. Proper interaction time must be ensured to foster a healthy relationship and prevent long-term negative effects on the child’s development.

Conclusion

In summary, visitation rights ensure that non-custodial parents, including those living abroad, can stay connected with their children. Family Laws of Pakistan safeguard these rights through the Guardian and Wards Act and the Family Court Act. With modern technology, online visitations now cover geographical limits. At LEX, we help parents secure their visitation rights, ensuring the child’s best interests.

M/s Legally-Ethically-Expertly (LEX), a leading law firm with experienced lawyers, provides this article’s information for public awareness through our website, lex.com.pk. We strive to provide valuable insights to the general public but do not regard this content as legal advice. However, for personalized guidance or assistance with legal matters, we encourage our valued readers to contact our expert family lawyers in Pakistan by calling or WhatsApp at +92-310-8888539 or emailing info@lex.com.pk. We are here to assist with tailored solutions.

Frequently Asked Legal Questions

Q1: Who are non-custodial parents in Pakistan?

The parent who does not have custody of the child is the non-custodial parent.

Q2: Can visitation rights be granted for online meetings with children?

Yes, online meetings are doable in this modern age. The Expert Family Lawyers at LEX have already done them.

Q3: What is the process for filing a visitation case in Pakistan?

By filing an application under section 12 of the Guardian and Ward Act of 1890.

Q4: Can a parent apply for visitation without seeking custody?

Yes, it can be sought independently.

Q5: Does the court consider the child’s well-being when granting visitation rights?

Yes, the welfare of the child is the paramount consideration.

Q6: Is it possible for overseas parents to arrange visitation through video calls?

Yes, visitation meetings may be arranged through video calls for the non-custodial parent residing abroad.

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Note:

While we strive to provide accurate information, please note that the details in this article may contain human errors and are not meant to serve as legal opinion or advice. This content is purely for informational purposes. If you have a specific legal query or need further clarification, we warmly invite our valued readers to reach out to us by calling or WhatsApp at +92-310-8888539, or email at info@lex.com.pk. We are here to assist with tailored solutions.

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