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General Comment 14, at ¶¶ 52-79.

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C. Joint Custody 1.6.1 The face of child custody arrangements is changing. A number of countries across the globe have adopted a preference for shared parenting systems over sole custody as a post-divorce arrangement with respect to children. In the West, this trend has arisen largely in response to changing familial roles (male care takers taking on more child rearing responsibilities) as well psychological studies revealing that the involvement of both parents in child rearing is preferable to sole custody arrangements.15 Studies indicate that children generally fare better when parents share custody, and some jurisdictions in some countries have a legally prescribed presumption of joint custody. 16 However, scholars and courts also caution that a presumption of joint custody can run contrary to the "best interests of the child" standard, especially in cases of domestic violence, where battered women may agree to joint custody out of fear of further violence.17 1.6.2 In November 2014, the Law Commission of India (hereinafter, the Commission) issued a Consultation Paper on Adopting a Shared Parenting System in India (hereinafter, the Consultation Paper).18 The Consultation Paper surveyed shared parenting Glover, R. & Steel, C., Comparing the Effects on the Child of Post-Divorce Parenting Arrangements, Journal of Divorce, Vol. 12 No. 2-3 (1989).

D. Summary of Responses received by the Commission 1.7.1 Of the 125 responses, most were in favour of shared custody. Some of the reasons for this were:

 Children need both their mother and father--they seek advice from each parent in different situations.

 Children need adequate opportunities to bond with each parent.

 Shared physical custody without shared legal custody will lead a child to believe that the parents do not have equal moral authority. Shared legal custody without shared physical custody will prevent a child from bonding with both parents.  Shared custody can reduce acrimony between the parents.

Some have a presumption that shared parenting is in the best interest of the child--Australia's Family Law Act, for example, states that, "[W]hen making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child." 64 Other jurisdictions allow for shared parenting but do not contain this presumption. Minnesota law explicitly states that "[T]here is no presumption for or against joint physical custody," with certain exceptions. 65 Canada, South Africa, the U.K., and Kenya also have no presumption for or against joint custody.66 West's Ann. Cal. Fam. Code § 3006.

3.1.5 Many countries that allow (or even have a statutory preference for) shared parenting do not allow it in some cases. Where there is domestic violence or any sort of abuse, most jurisdictions have a presumption against shared parenting. 67 Shared parenting is also disfavoured where parents have a particularly contentious relationship. As a US Court of Appeals noted in Braiman v Braiman:

Joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion. As a court-ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos.68 3.1.6 Practical considerations are also relevant.