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Impact Of Divorce On Children

This article evaluates the traumatic experience of the children of divorced parents. Initially, the pain experienced by children is distressing as they see the family break down and sense weakness. Divorce, in any circumstance, rips a child apart, emotionally and sensitively offensive upon the child's well being. However, long term effects are determined by the behaviour on the part of the parents which determines good adjustment for children going through divorce.

A major impact of divorce is on the parent-child relationship. The quantity and quality of contact between children and non-custodial parents usually fathers-tend to decrease and the relationship with the custodial parent-usually the mother shows signs of tension.

Further, divorce raises the needs of definitive articulation of child rights in the present context and how they must be represented in a divorce proceeding. Divorce is an extremely disturbing experience for all children depending upon the age or maturity level. In the present context, when the family in India is understood as the first line of defense, in an event of divorce, family serves as a source of stability. In light of this let us now observe the experience of children in the family while going through their parents' divorce.

Child's Behaviour Associated with Divorce

Divorce is inarguably intensely distressing for children. Outside the territory of family, because of the label of divorce, the child faces tough time attempting to be accepted by a narrow- minded society. In socioeconomic attainments, children who experience their parents' divorce have lower educational prospects than children from intact homes. Within the family, the obvious effects are on the physiological behaviour of the child.

There are also children who are left in a guilty conscience in the post-divorce period especially if they are a frequent witness to the parent's violent dispute. They are left thinking what is that they did to cause the divorce. Moreover, in older age groups the assumption of hyper-maturity is also common as children often assume the tasks of adults to stabilize the custodial parent's household.

Rights of Parents and Children Involved in Custody Cases

A divorce is often followed by prolonged issues over the custody of minor children. It is therefore, essential to analyze the aspect of child custody and how the children are affected largely through the custodial arrangements.

Custody means the obligation to control, care for and supervise a child. Custodial parent may be the guardian for both the person and property of the minor and is often over-loaded with the child's responsibility. There are also consequences of being the non-custodial parent, such as not being able to take the child out without the Court's permission. The basic conflict in social principles in a custody case is whether to treat the child as a separated individual, apart from his/her blood-ties, or to emphasize the family unit from the standpoint of the parent.

One of the natural rights incidentals to parenthood is the right to custody of the child recognized as a common law doctrine of ‘parental autonomy' which the Courts do not easily discard. Also observe that the natural right of the parent to the care of a child prevails as against an entire stranger.

However, cases like V. Meenapushpa vs V. Ananthan Jayakumar point out that the custody of children is being granted to grandparents also when going according to the wishes of a mature child. This principally conflicts with the parental autonomy which is acquired by parents by the virtue of giving birth to the child which has nothing to do with the intervention of the State. Thus, there are two sets of interests competing in a custody case. Factors ascertaining the Best Interest of Child The law cannot prevent all damage to the child's interests caused by divorce, since it cannot compel harmonious human relationship. It can, however, provide a means for reducing the damage by ensuring that the child's interests are not neglected in divorce custody proceedings.

While there has been no formal enunciation of factors ascertaining best interest, the Courts look at the following decisive factors:
  • Child's age, gender, mental and physical maturity and also of parents;
  • Relationship and emotional ties between the parent and the child;
  • Parent's ability to provide the child-food, shelter, clothing, medical care, education; and
  • Child's established living pattern-school, home, community.

When the family unit has been broken in a divorce-custody dispute, neither parent can be presumed to be representative of the child nor the counsel for the parents represent both the child's best interests and the interests of their clients when those interests are divergent.

It has been argued, however, that the child's interests are protected by the Court as parens patriae. However, within the ‘rigors of adversary proceedings', without separate representation for the child, the Court may neglect important interests of the child in both the outcome and the process of the proceeding.

It is therefore important that a child be represented by a guardian ad litem whose central responsibility is to assist the Court to determine the best interest of the children. It is only to ensure that the child's interests receive priority in the midst of other competing interests because the judge who is restricted to the courtroom cannot on his own obtain the facts pertaining particularly to the child's viewpoint.

When applying the best interest' standard in contested custody proceedings, Courts must consider the question of how much weight to be given to the child's own custodial preference. In practice, however the broad discretion given to the Courts often means that the child's preferences may be ignored. Some Scholars have argued that the children in a divorce custody proceeding be given an absolute or presumptive choice of custodial parent.

Issues of custody and guardianship under the Hindu law are governed by the Hindu Minority and Guardianship Act, 1956. Section 6(a) of the Act defines ‘natural guardian' in the case of a boy or an unmarried girl as the father, and after him, the mother. Also, it must be noted that the father who is the natural guardian would not ipso facto becomes the custodian of the child

Mohammedan Law

Under Muslim law, the father is the sole guardian of the child but, the mother has the primary right to custody. According to the Shia School, the mother's right to custody of the child terminates when the boy reaches the age of two and in the Hanafi School, this right is extended till the age of seven. Both the Schools agree that mother has the right to the custody of a minor girl till she attains puberty. In addition to these classical conditions some flexibility is also accorded in the light of Guardians and Wards Act, 1890 and the Courts are pro-active in their custodial arrangements by applying the criteria of best interests of child

Other Statutory Provisions
The Law on child custody was codified as early as 1890 in the form of the Guardians and Wards Act which consolidates and amends the law relating to guardians and wards. The Guardians and Wards Act, 1890 is a secular Act and guardianship in communities other than Hindu and Muslims is governed by the Guardians and Wards Act, 1890 which clearly lays down that the father's right is primary.

Under Guardians and Wards Act, 1890 guardian is defined which is similar to what is in the Hindu Minority and Guardianship Act, 1956 The Divorce Act, 2000 provides law of custodial arrangements for children among Christians. In case of Parsis, Section 4368 of the Parsi Marriage and Divorce Act, 1936 makes provision for the custody of children.

Custody Issues and the Sex of the Child

It is now settled law that child custody can go to either parent. On the sociological front, researchers find that boys raised by fathers and girls raised by mothers may do better than children raised by the parent of the opposite sex. However, the children's adjustment following a divorce has more to do with the quality of the parent-child relationship than with the gender of the child.

Maintenance for Off-springs of Divorcees

Financial problems can be far more catastrophic than the emotional turmoil the child faces. Studies show that only half of all Court-Ordered child support is paid affecting the child's daily care, schooling etc. In such a situation the Courts must ensure fall back mechanisms like asking for the extended family members to act as surety etc.

Maintenance under the Hindu law is provided in the Hindu Adoptions and Maintenance Act, 1956 wherein under Section 20 it is obligatory upon the parents to maintain their minor children. In case of Mohammedan law, the maintenance for the children of divorcees is basically to be taken care of by the father regardless of the custodial arrangement. It is stipulated in the Muslim Women (Protection of Rights on Divorce) Act, 1986 in Section 3(b).

Under the Divorce Act, 2000 applicable to Christians, Section 43 deals with Courts' power to make provisions for the minor child's maintenance. Usually the Courts grant maintenance for children while deciding the issue of maintenance to wives in divorce cases. Divorce after 1970 has become a dominant institution in the American society and rights of children have been more broadly defined especially in situation of marital disruptions.

Most States in America have stressed that parents should be encouraged to arrive at custody decisions privately. In the Indian context however, the matter automatically at the time of passing of the decree of divorce comes under the jurisdiction of the Court.

This conflicts with the parental authority in making decisions for their child's welfare. Even in England, the defences of parental authority or of family privacy are no longer justified for State intervention. The Children Act, 1989 in England addresses the core issue of the rights of a child in divorce proceedings. In India, there has been no comprehensive legislation dealing with rights of child in this context.

It is also important to note that one of the reasons of the high divorce rates in the west is due to the destigmatization attached to the families. Attitudes toward divorce in the west have become more accepting over a period of time, even when children are involved.

However, in India the process of divorce is still a label and in a way society creates a negative stereotype of the children of divorcees. Furthermore, while in India the ‘best interest of child' criteria is obscure and is left into the hands of judiciary to enumerate upon the parameters, in 1970 American National Conference on Uniform State Laws adopted the Uniform Marriage and Divorce Act which laid down the yardsticks to ascertain the best interest of the child.

In the absence of such enumeration the judiciary is left unguided in India. It has already been discussed that there is a need for formal recognition of the rights of child involved in parents' divorce and how the child can be helped through the divorce rigmarole.

The primary duty is on the parents to constantly interact with the child and let him/her know the separation in the family. This will basically maintain their trust in the parents. Interaction further depends upon the age of the child. For toddlers, school goers sharing general information is appropriate while with adolescents there must be greater details shared as to what exactly are the reason for the divorce etc

Secondly, the most important factor for children's well being is to not let them be privy to the ongoing conflicts. This must not be confused with interaction; it is necessary for the child to know only through the parents. Further, keeping in touch with the non-custodial parent and a regular communication is beneficial for the child's growth. Moreover, minimum numbers of transitions after the divorce are beneficial for the children.

Keeping them in the same school, home or neighbourhood always helps the children relate to some stability without having undergone another set of changes for even simple changes are experienced as losses. Associating with relatives, going out in the neighbourhood, seeing friends for weekends all can help gather support from various sources. Socialising can help children overcome the divorce stigma and this will make it look simpler.

The analytical efforts made aforesaid conclude on the point that the child's psychological balance is deeply affected through the marital disruption and adjustment for changes is affected by the way parents continue positive relationships with their children. Also, as regards the recorded rise in female headed households, the scholarly opinion largely asserts that fathers need to take up a larger responsibility and provide for timely maintenance. Apart from the developmental considerations due to family disruption, there are certain rights which need to be looked into from a distinct standpoint to cater to special situations the children are found in during the time of their parents' divorce.

As it has been argued, these rights though cannot be distinctively articulated from that of the parent's rights, yet the child should be considered as an autonomous self to be accorded individual rights. The researcher also reiterates the need for enumerating the parameters to determine the best interests of the child rather than leaving the judiciary with absolute powers to determine the child's welfare. From a legal standpoint, the researcher suggests that a single law governing child rights in divorce cases and also matters pertaining to custody and maintenance must come into place for an enhanced framework protecting the child's future.

To ensure that the child receives a stable and nurturing environment after the divorce of the parents, some scholars have opined that if a parent fails to promote the child's interest at some threshold level of adequacy, a form of intervention, ranging from counseling to obtaining fine from the parent as well as loss of parental rights to the child, may be legitimate.86 The farfetched idea of a prenuptial agreement may also be worked out though it shall take a while for the Indian environment to be suited to the design.

End Note:
  1. Sara Eleoff, An Exploration Of The Ramifications Of Divorce On Children And Adolescents, children.htm.
  2. Jayna Solinger, The Negative Effects Of Divorce On Children, http://
  3. F. Furstenberg and C.W Nord, Parenting Apart: Patterns Of Child Rearing After Marital Disruption. Journal of Marriage and the Family,47,893-904 (1985)
  4. Kelly and Wallerstein, Brief Interventions With Children Of Divorcing Families, 47 American Journal of Orthopsychiatry 23, 29-30 (1977).
  5. M. Desai, Towards Family Policy Research. Indian Journal of Social Work, 56,
  6. Andreas Diekmann and Kurt Schmidheiny, The Intergenerational Trans Mission Of Divorce, Id=40 951.
  7. Andrea H. Beller and Sheila F. Krein, EDUCATIONAL ATTAINMENT OF CHILDEN FROM SINLGE PARENT FAMILIES: DIFFERENCE BY GENDER, EXPOSURE, RACE,Demography 25: 221-234 (1998). It is also observed that children of divorce have lower level of employment, and financial attainment due to the instability within the family structure. See S.McLanahan, and G. Sandefur, GROWING UP WITH A SINGLE PARENT: WHAT HURTS, WHAT HELPS (1994).
  8. Sadness and depression are common to all age-groups of children which is further characterised by loss of appetite, relentlessness, lack of decision making, difficulty in concentrating etc.See Howard Raab, THE EFFECT OF DIVORCE ON CHILDREN, http:/ /
  10. Kalter, CHILDREN OF DIVORCE IN AN OUTPATIENT PSYCHIATRIC POPULATION, 47American Journal of Orthopsychiatry 40,48(1977); McDermott, PARENTAL DIVORCE IN EARLY CHILDHOOD,124 AmericanJournal of Psychology 1424, 1424 (1968).
  11. Robert Weiss, Marital Separation(1975). 12. Steven L. Nock, THE FAMILY AND HIERARCHY, Journal of Marriage and the Family, 50 (Nov): 957-966 (1988). Article 9(1) of the Convention states that: States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

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