Relocation abroad- no ground for child custody denial

Relocation for better fortune cannot be held against the mother from claiming custody provided the child's welfare is also protected.

By Advocate Suresh Tripathi |Published: 2023-10-04

The Kerala High Court recently observed that the custody of a child cannot be denied to the child's mother merely because the mother is relocating abroad for better career prospects.

A division bench of Justice A Muhamed Mustaque and Justice Sophy Thomas made the observation while hearing a plea filed by the mother of a child in the matter.

A family court had rejected the mother's request to take the child along with her to New Zealand. The mother, therefore, moved the High Court for relief.

The High Court observed that the mother was moving to New Zealand for better job opportunities. In this background, the Court opined that her decision to move abroad should not be held against her to deny child custody.

"If the relocation of the appellant (mother) is for better fortune, that cannot hold against her from claiming custody, provided, that the child's welfare is also protected. The child should recognise his biological parents and have every right to grow under their care and protection," the Court said.

The Court added that simply because there is a custody dispute, it does not mean one must stay in the same location indefinitely for the sake of the child's custody.

Therefore, the High Court allowed the mother's plea and declared that she was the child's sole legal guardian for the purpose of taking the child to New Zealand.

The parents of the child had earlier separated and the custody of the child was given to the mother until the child reached the age of six years. The father of the child, who was employed in Bahrain, was given visitation rights along with contact rights.

The mother of the child later sought to take the child along with her to New Zealand, after she obtained residential status to live there. However, the father of the child opposed the move, leading the mother of the child to approach the family court for permission.

The family court denied the request reasoning that there was no need to change the terms of the child custody agreement. The family court also directed the mother to hand over the child to her estranged husband's family if she was going ahead with her move to New Zealand.

However, the High Court opined that the family court did not properly consider the child's welfare.

The High Court emphasized the child has a right to be with the biological parents, while also noting that the mother has a right to pursue better opportunities abroad.

"The preference of the child to be with one of the parents should be the paramount consideration to protect the welfare of the child ... If the biological parents are willing to protect the best interest of the child, denying the child to grow in a natural and familial atmosphere itself is against the best interest of the child," the High Court said.

While allowing the mother's appeal, the Court also granted short-duration custody and visitorial rights to the father. Further, the mother was prohibited from changing the child's nationality without the father's consent.