For decades, custody disputes have often been approached as a contest between two parents:
Who should get custody?
Perhaps we need to ask a different question:
What arrangement best serves the child?
A child is not property to be divided between parents after a marriage breaks down.
And a father does not become a stranger to his child merely because he is no longer living with the mother. Equally, a mother should not lose her importance in a child’s life merely because she is not the custodial parent.
Our custody jurisprudence has increasingly recognized that the welfare of a minor involves more than physical care. A child may need the love, affection, guidance and meaningful presence of both parents.
This does not mean that every child should automatically have 50/50 custody.
Shared parenting is not a mathematical formula.
There may be circumstances abuse, violence, neglect, parental incapacity, serious conflict or other genuine risks where restrictions are necessary.
But where such circumstances do not exist, we should be cautious about turning parental separation into parental disappearance.
The real question in family justice should therefore not be:
“Which parent wins?”
It should be:
“How can we ensure that this child loses as little as possible from the breakdown of the parents’ relationship?”
That, in my view, is where the conversation about shared parenting in Pakistan must begin.
Fahad Ahmad Siddiqi
Advocate Supreme Court of Pakistan