In custody disputes, we often describe one parent as the “custodial parent” and the other as the “non-custodial parent.” The terminology can quietly shape the way we think. One parent becomes the parent who has the child. The other becomes the parent who is given access.
But custody determines residence and day-to-day care. It does not determine who remains a parent. A child may live primarily with one parent while continuing to be meaningfully parented by both.
This is not merely a philosophical proposition. Pakistani custody jurisprudence has increasingly recognised that the welfare of a minor encompasses the love, affection, care and guidance of both parents. In Mst. Madiha Younus v. Imran Ahmed (2018 SCMR 1991), the Supreme Court approved a comprehensive arrangement under which custody remained with the mother while the father had substantial periods of interim custody, including weekends, vacations and family occasions.
The jurisprudence therefore points to an important distinction: custody with one parent does not necessarily mean marginalisation of the other. In Shahida Adnan v. Additional District Judge (2021 YLR 1915), the Lahore High Court reiterated that a parent does not lose the right of association merely because custody has been entrusted to the other parent, emphasising the child’s need for the love and affection of both parents.
Meaningful parenting is not necessarily measured in hours spent in a courtroom, a visitation room or under supervision. It can mean ordinary life: taking a child to school, helping with homework, attending a doctor’s appointment, sharing a weekend, celebrating a birthday, or simply being available when the child needs a parent.
This is why visitation should not become a legal substitute for parenthood.
The question, therefore, should not always be: “How much access should the non-custodial parent receive?” A more child-centred question may be: “How can both parents continue to parent this child safely and meaningfully after separation?”
Of course, the answer must always depend upon the welfare of the child. Where genuine risks exist, restrictions may be necessary. But where they do not, parental separation should not automatically result in the transformation of one parent into a visitor.
Our constitutional and family-law jurisprudence also recognises that custody and visitation disputes are ultimately governed by the welfare of the minor. The judicial task is therefore not simply to allocate parental possession, but to protect the child’s continuing relationship with both parents where that relationship is consistent with the child’s welfare. A child may have one primary residence without having only one parent.
That distinction should matter to family justice.
Fahad Ahmad Siddiqi
Advocate Supreme Court of Pakistan