Supreme Court Establishes Structured Interim Custody for Child of Overseas Parent.


15 May 2025 Child Custody >> Family Law  

In a recent appeal of EBY Cherian v/s Jerema John, the Supreme Court addressed the ongoing dispute between a divorced couple regarding the interim custody of their minor daughter. The appellant-father, an engineer working overseas on rotational assignments, challenged the High Court of Kerala's decision that required him to file a fresh application for overnight access to his child every time he visited India.

The couple's daughter was born in 2017, and following marital discord, the respondent-mother took exclusive care of the child in Ernakulam. The father initiated proceedings for permanent custody in 2023, and the Family Court initially allowed daily video interaction and one weekend of overnight custody, but stipulated that he "may move necessary application for getting overnight custody" during future visits. This led to the father filing numerous interim applications, gaining only 37 days of physical access over an academic year, causing him significant uncertainty, financial strain, and loss of leave.


 

 

The father then petitioned the High Court for a definitive interim schedule, but it was dismissed. Consequently, he appealed to the Supreme Court. Despite attempts at mediation, no agreement was reached.

The core issue before the Supreme Court was whether the lower courts were justified in compelling the father to repeatedly seek overnight custody through separate applications, rather than establishing a structured interim access schedule that balanced the child's welfare with both parents' rights and obligations.

The appellant's counsel argued that the "apply-each-time" arrangement was impractical, costly, and created uncertainty for the child. They emphasized the child's comfort with the father, the father's consistent maintenance payments, and his efforts to plan his professional life around the child. Concerns were also raised about the mother's health and its potential impact on the child.

The respondent's counsel countered that she had been the sole caregiver, and any fixed long-term arrangement should await the final trial of the custody petition. She highlighted the father's prolonged overseas work, arguing that the child's welfare was best served by her continued exclusive custody.

The Supreme Court found that the Family Court's requirement of fresh applications for each visit placed an undue burden on both the father and the child. Recognizing the child's comfort with the father and the importance of meaningful contact with both parents, the Court emphasized that procedural hurdles should not impede a predictable schedule when a non-custodial parent demonstrates consistency and commitment.

Therefore, the Supreme Court partially allowed the appeal, setting aside the High Court's order to the extent of the interim access arrangement. The Court established a new standing interim arrangement for the father's access until the final disposal of the custody petition, taking into account the child's age, schooling, and the father's employment.

The new directions include:
  • Weekend Custody: If the father is in India for at least seven consecutive days, he will have custody on the first Saturday and Sunday of his stay, and on alternate weekends if his stay exceeds another week.
  • Summer Vacations: To be divided into two equal contiguous segments, with the second segment for the father if he is in India.
  • Festival Vacations: To be divided into two equal contiguous blocks, with parents consulting to agree on the sequence or seeking Family Court determination if no agreement is reached.
  • Travel Restrictions: The parent with the child during a vacation block cannot take her outside Kerala without the other parent's written consent and itinerary.
  • Video Calls: At least three weekday video calls (8 p.m. to 8:30 p.m. IST) and an additional virtual session on Saturdays (11 a.m. to 12 noon IST) while the father is abroad.
  • No Fresh Applications: No new applications will be required for subsequent visitation periods.
  • Advance Notification: The father must email the Family Court and mother four weeks before his arrival in India, specifying the custody dates. Any disputes will be summarily resolved by the Family Court.
  • Variation of Logistics: The Family Court can only vary the logistics (place/timing of exchange), not the quantum of access, based on materially changed circumstances.
The Family Court, Ernakulam, has also been requested to expedite the adjudication of the main custody petition.