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MARITAL DISCORD AND ITS IMPACT ON CHILDREN
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MARITAL DISCORD AND ITS IMPACT ON CHILDREN
AUTHORED BY - NIRALI JAIN
INTRODUCTION
Parents
are the most important people in everyone's life. All children need parental
protection. They are responsible not only for the birth of the child, but also
for its future care. When parents divorce, it is the children who is deprived
of one of the parents. The child gets caught up in negative thoughts, which are
the most dangerous. Children suffer the most socially, economically, culturally
and emotionally. Even though there are many laws in place, children of divorced
parents still suffer the most. Parental divorce negatively affects
psychological, cultural, social, educational and many aspects of life. It often
happens that children refuse to participate in relationships, blame themselves
for their parents' divorce, behave badly, resort to violence, etc. This spoils
the future of developing countries like India. Since the court recognizes this
fact, children are generally placed in the care of parents who can contribute
to the child's overall well-being. Welfare of the child is given the paramount
consideration. Decision-making authorities consider the principle of the best
interest of the child in custody hearings. A new concept of shared parenting
responsibilities is evolving in India, where both parents work together to do
the best for their children even after divorce. Divorce has a huge impact on
children and should be handled carefully.
DEFINITION
OF A CHILD
“Every human being below the age of 18
years unless under the relevant law applicable to the child, majority is
reached earlier.”[1]
“Nothing is an offence which is done by a
child under 7 years of age.”[2]
“a boy who has not attained the age of 16
years, and a girl who has not attained the age of 18 years”.[3]
“a person who has not completed 18 years
of age.”[4]
“a child means a person, who, if a male,
has not completed 21 years of age, and if a female, has not completed 18 years
of age.”[5]
“a person who has not completed his 14
years of age.”[6]
“Every person domiciled in India shall
attain the age of majority on his completing the age of 18 years and not
before. In computing the age of a person, the day on which he was born is to be
included as a whole day and he shall be deemed to have attained majority at the
beginning of the 18th anniversary of that day.”[7]
CHILDREN
AFTER SEPARATION OF PARENTS
Parental
separation can have a profound effect on children, affecting many areas of
their lives, including their emotional well-being, social relationships and
academic performance. Children often experience a range of emotions in response
to parental separation, including sadness, anger, confusion and anxiety. Family
breakdown can disrupt children's sense of security and stability and lead to
feelings of loss and abandonment. Additionally, children may struggle to adjust
to changes in their living arrangements, routines, and family dynamics, which
may exacerbate their anxiety.
The
quality of the relationship between separated parents and their ability to
co-parent is critical. role effect of separation in assigning children.
Positive co-parenting arrangements that prioritize the well-being of the child
and maintain open communication between parents can help mitigate the negative
effects of separation. Conversely, conflictual or hostile relationships between
parents can increase children's stress levels and feelings of insecurity, as
they can find themselves in the middle of parental arguments.
Paternal
separation can also affect the social relationships that children can
experience changes in peer groups, extracurricular activities and community
involvement. Feelings of isolation or exclusion can arise when children move
from a two-parent household to live separately. Additionally, after parental
divorce, children may struggle with questions about their identity, sense of
belonging, and future relationships.
Children
of academically divorced parents may encounter problems such as reduced
concentration, motivation, and performance. school The emotional turmoil caused
by parental separation can affect children's ability to focus on their studies
and participate effectively in learning activities. Additionally, disruptions
in home life and routines can increase school absences, tardiness, or
behavioral problems.
Despite
these challenges, children can show flexibility and adaptability when their
parents are apart. Supportive relationships with family members, friends,
teachers and counselors can provide children with the emotional support and
resources they need to cope with life changes. In addition, maintaining
consistent routines, open communication, and age-appropriate explanations of
separation can help children navigate their emotions and adapt to new
circumstances.
Overall,
the impact of parental separation on children is complex and multifaceted and
can be influenced. due to various factors. factors such as the quality of the
parental relationship, the level of conflict and the availability of support
networks. By prioritizing the well-being of their children and fostering
positive relationships between parents, separated parents can help mitigate the
negative effects of separation and create a stable and supportive environment
for their children.
The
psychological impact on children following parental separation can be
significant and multifaceted, affecting their emotional well-being and
development. Children often experience a variety of emotions in response to
parental separation, including sadness, anger, anxiety, confusion, and sadness.
Family breakdown can disrupt children's sense of security and stability,
leading to feelings of abandonment, abandonment and loss.
One
of the main psychological effects of parental separation is an increased risk
of emotional distress and mental health problems. children Research shows that
children of divorced parents are more likely to experience symptoms of
depression, anxiety and low self-esteem than children of intact families. The
turmoil caused by parental separation can lead to feelings of insecurity and
insecurity, which increases children's emotional vulnerability.[9]
In
addition, children may internalize feelings of guilt or responsibility for
their parents' separation, believing that they somehow caused it or could be;
prevented it. that. differential This false sense of guilt can exacerbate
children's emotional distress and self-esteem problems, leading to feelings of
inadequacy or worthlessness. Additionally, children may have difficulty
reconciling their parents' conflicting loyalties and may feel torn about
whether they want to maintain relationships with both parents while addressing
their own emotional needs.
Paternal
separation can also affect children's behavior and social functioning, causing
changes in how they interact with peers, family members and authority figures.
Children may develop behavioral problems such as aggression, defiance or
withdrawal as they struggle to cope with the stress and upheavals of the family
situation. In addition, changes in family routines, living arrangements, and
caregiving responsibilities can disrupt children's stability and
predictability, affecting their ability to form and maintain healthy
relationships with others.
Children
of academically inactive parents may experience difficulties in school
attendance, including decline academic success, attending problems and
decreased motivation. The emotional turmoil and stress associated with parental
separation can interfere with children's concentration, focus and participation
in learning activities. In addition, disruptions in their home life and
routines can increase absences, tardiness or behavior problems at school.
In
simple day-to-day practice, children can never forget this fact. In one or
another way they are constantly reminded that their parents are separated. For
example, when the school distributes corrected answers or releases results, it
must be signed by both the parents, or children must attend the school with
their parents for a parent-teacher conference. At this time, children really
face many problems. He worries about how he would gain the courage to ask to
sign the answer sheet.
Slowly
and gradually child’s mental health is hampered and sometimes it becomes so
worse to the extent that child feels like committing suicide. It is often
difficult to quantify the amount of love, care and affection that people in
societies show to each other. Children of divorced parents face the same
situation. Before custody is granted, when the child is asked who he/she loves,
it is seen that the child will remain silent or answer in favour of the one who
is either asking the question or is present there.
Many
times, children also become victims of domestic violence because they monitor
activities at home. Often the mother blames her husband for hitting her in
front of the children, who quickly learn physical abuse. Bad behavior makes
these children worse when they become adults and criminals then emerge in
society.
It
has been suggested that there are three elements that the court should take
into account when making the final decision on custody. These are “Welfare of
child Principles”, “Care and Protection of child Principles” and “wishes of
child”. If the child is an adult or is capable of expressing himself, the court
may convince the parties in accordance with the doctrine of child’s welfare or
the doctrine of Care and Protection of child. But we have yet to see courts
meet all three of these limitations. It is best if the courts uses effective
method for child custody matters which is the best interest and welfare of the
child should be of paramount consideration.[10]
Welfare
of the child: The doctrine of child welfare is a basic principle of family law,
where the interest and welfare of the child takes precedence over all other
considerations. Based on the belief that children are vulnerable individuals
who deserve protection and support, this doctrine guides courts and lawyers in
making decisions related to child custody, guardianship, visitation rights and
other matters affecting the lives of children. Unlike previous legal frameworks
that may have favored the rights of parents or other parties, the child welfare
doctrine emphasizes the importance of considering the individual needs,
preferences and circumstances of each child in determining the outcome of a
family law proceeding.
In
its core, the child protection doctrine is the recognition that children thrive
in an environment that provides love, stability, security and opportunities for
growth and development. Courts are tasked with evaluating various factors to
determine what arrangement is in the best interest of the child, taking into
account the child's age, health, mental well-being and relationship with each
parent. In addition, courts may take into account factors such as a child's
educational needs, cultural background and special requirements or preferences
that may affect the child's well-being. to their long-term well-being and
future prospects. This holistic approach recognizes that decisions made in family
law proceedings can have far-reaching effects on the physical, emotional and
psychological development of children and their overall quality of life. As
such, courts aim to make decisions that promote the best interest of the child,
not only in the short term, but also in terms of their future well-being and
happiness.
In
applying the child protection doctrine, courts seek to establish rights of
guardian. An arrangement that prioritizes the safety, stability and continuity
of care of the child. This may include awarding primary custody to the parent
who can provide the most caring and supportive environment for the child, and
establishing visitation schedules that facilitate an ongoing relationship with
both parents whenever possible. In addition, the courts can intervene in cases
where the well-being of the child is at risk, for example due to neglect, abuse
or parental incapacity, taking appropriate measures to protect the interests of
the child and ensure their protection.
Care and Protection of Children: The care and
protection of children is paramount in societies around the world, reflecting a
shared commitment to protect the rights, well-being and dignity of the child.
This responsibility includes many efforts to ensure that children grow up in a
safe, nurturing and supportive environment that enhances their physical,
emotional and psychological development.
Child care and protection is fundamentally
about creating and protecting, and maintain legal, social and institutional
frameworks that promote their well-being and address their unique needs and
vulnerabilities. This includes establishing laws and policies that strengthen
children's rights, such as the right to education, health care, protection from
violence and access to adequate food and shelter. It also includes enforcement
mechanisms to fulfill these rights, including child protection services, legal
aid and advocacy initiatives.
In addition to legal and political means, the
care and protection of children depends on the collective efforts of families,
communities and families. governments create nurturing and supportive
environments that prioritize the safety, well-being and development of
children. This can include promoting positive parenting practices, providing
quality health care and education, and fostering supportive social networks
that strengthen families and enable parents to meet their children's needs.
At the core of the concept of caring and
nurturing. protection is the recognition of children as owners of rights and as
active participants in decisions affecting their lives. This requires listening
to children's voices, respecting their opinions and involving them in matters
affecting their well-being. It is important to give children the opportunity to
express themselves, defend their rights and seek support when necessary to
create an environment where they feel valued, recognized and have the
opportunity to succeed.
In addition, caring for and protecting
children is not limited to immediate intervention. address the underlying
issues. they are affected by factors such as poverty, discrimination,
inequality and social exclusion. By addressing these root causes and promoting
equality and social justice, societies can create more inclusive and supportive
environments where all children have the opportunity to reach their full
potential.
Care and protection of children are ultimately
shared responsibilities that require commitment. cooperation between
individuals, families, communities, governments and international
organizations. By prioritizing children's rights, well-being and human dignity,
societies can create a nurturing and supportive environment where every child
can grow, learn and develop, laying the foundation for a brighter and more just
future for all.
Wishes of the child: In child custody matters,
the wishes of the child can be an important factor in court, especially in
cases involving older children who are considered adults and are able to
express their preferences. The weight of the child's wishes varies depending on
factors such as the child's age, maturity and understanding of the situation
and the special circumstances of the case. Although the child's wishes are
considered, they are not necessarily determinative and courts must balance them
against other factors, such as the child's best interests and welfare.
Courts usually consider the child's wishes
through various means, such as interviewing. child through trained
professionals, child custody evaluations, or testifying at a court hearing. The
aim is to ensure that the child's voice is heard and considered in the
decision-making process. However, the courts also recognize that children can
be influenced by many factors, such as their relationship with their parents,
pressure from the other parent or their own emotional vulnerability.
The weight of the child's wishes can also
depend on cultural standards, legal standards and precedents in the
jurisdiction where the custody case is being heard. In some cases, courts may
prioritize the child's right to self-determination and self-determination,
especially in jurisdictions that emphasize the child's rights and participation
in the legal process. In other cases, courts may consider the child's wishes as
one of several factors to consider, along with other relevant factors such as
the child's safety, well-being and best interests.
Ultimately, how much the child's wishes affect
the result of custody cases depends on the discretion of the court and the
circumstances of each case. While the child's preferences are important, courts
must balance them with other factors to reach a custody arrangement that
promotes the overall welfare and best interests of the child. With thoughtful
and balanced consideration of the child's wishes, the courts strive to make
decisions that reflect the child's needs, wishes and rights, while ensuring the
child's safety and well-being.
Nil
Ratan Kundu v. Abhijit Kundu[11], in
this case the court mentioned that if the child is mature enough to understand
the consequences and to make a decision, the court should take the wish of the
child into account; but the final decision will be of the court in order to
decide in the best interest of the children.
Saraswatibai
Shripad Vad v. Shripad Vasanji Vad,[12] in
this casde the court stated that it is not the father or mother whose welfare
is important while deciding rather it is the welfare of child which is to be
given paramount consideration.
SHARED
PARENTAL RESPONSIBILITY
Shared
Parenting means that after separation the child will grow up with the love and
guidance of both parents. Shared parenting responsibilities for post-divorce
parenting is a strategy designed to reduce the existing damage caused to
children and families going through the transition to divorce by focusing on
the needs of children and families as well as the responsibilities of parents
in divorce. Based on these needs.
The
"shared parental responsibility" approach to divorce law reform has
the following four elements. Each element has been addressed individually with
varying degrees of success; but no decision has been made about the model yet:
- The law requires parents
to create a joint or individual parenting plan before a divorce case is
filed in court.
- Create a legal
expectation that the relationship between parent and child will continue
after the divorce; that is, post-divorce parenting will be related to
pre-divorce parenting, that is, the time parents spend with their
children. Its purpose is to guide the development of parenting plans and
allow parents to submit a plan to the court for approval of the law
regarding an existing parenting plan.
- In case of disagreement,
shared parental responsibility (meaning the child spends equal time with
both parents) will become the legal decision; that is, the court's
"default" position. Therefore, in cases of custody dispute after
the divorce, the child will spend equal time with both parents.
- There will be exceptions
for violence and domestic violence, which will continue with third-party
interventions, and the protection of children will be a priority. Such
cases will be determined by criminal judgments and child protection
agency.
Shared
custody v/s joint custody: Generally many people use the terms "shared
custody" and "joint custody" as if they meant the same thing.
However, each term refers to different types of custody. Part of the reason
leading to confusion is that some states use them interchangeably. Therefore,
you should remember that these are two different types of custody.
Generally
speaking, the main points of joint custody are to give both parents equal
control over child regarding decisions and to ensure that the children spend
time with both of them.
On
the other hand, shared custody focuses on the child's level of communication
with both parents. In fact, the goal of shared custody is to give parents the
opportunity to split the time their children spend with them as equally as
possible.
If
this definition still sounds the same, it is because shared custody is a
sub-type of joint custody. So, to remember the difference between the two, the
important thing to remember is that joint custody is more about making legal
decisions on behalf of the child, while shared custody refers to how much time
the parents spend with the child.
When
considering the impact of divorce on a child, it is important to understand
that each child's experience is unique and the impact can vary based on factors
such as age, temperament, family dynamics and level of conflict between the
parents. Here are some suggestions for understanding and mitigating the impact
of a breakup on a child:
Open
communication: Encourage open communication with the child so that he can
express his feelings, fears and concerns about the breakup. Create a safe and
supportive environment where the child feels heard, understood and validated.
Reassure the child that his feelings are normal and that he is not alone in his
experiences.
Provide
stability: Maintain routines and rituals as much as possible to give the child
a sense of stability and predictability. Consistency in daily routines such as
mealtimes, bedtimes and school schedules can help calm a child and reduce
uncertainty and anxiety.
Co-parenting:
Encourage positive co-parenting relationships between separated parents by
emphasizing cooperation, respect and effective communication with children. for
the benefit of the child. Minimize conflict and avoid involving the child in
arguments or acting as a mediator between the parents.
Reassure
the child about unconditional love: Reassure the child that both parents love
him unconditionally and that the breakup is not their fault. Emphasize that the
parent who no longer lives with them will not abandon or abandon the child and
maintain opportunities for regular communication and quality time with both
parents.
Seek
support: Encourage the child to seek support from trusted adults such as family
members, friends, teachers or counselors who can provide emotional support,
guidance and perspective during this difficult time. Also consider seeking
counseling or therapy for your child to help him deal with his feelings and
develop coping strategies.
Empower
your child: Empower your child by including him in age-appropriate decisions
and discussions about your living arrangements, visitation schedules, and other
aspects. . . of her post-divorce life. Give your child choices and
opportunities to control and influence their circumstances.
Monitor
Behavioral Changes: Pay attention to your child's anxiety or behavioral
changes, such as withdrawal, aggression, regression, or academic problems.
Monitor your child's emotional well-being closely and, if necessary, seek
professional help to address underlying problems or concerns.
Model
healthy coping: Model healthy coping mechanisms and problem-solving skills for
your child that demonstrate flexibility and adaptability in the face of
challenges. . . Show your child that it is okay to experience difficult
feelings and that there are constructive ways to manage and overcome them.
By
implementing these suggestions and providing a supportive and nurturing
environment, caregivers can help lessen the impact of separation on a child and
move their child forward. development feelings well-being and flexibility
during this transition period..
CONCLUSION
Despite
these challenges, children are often resilient and adaptable and can cope with
the complexities of parental separation with the right support and resources.
Positive coping strategies such as open communication, emotional expression,
and access to supportive relationships and resources can help children cope
with the psychological effects of parental separation and the transition to a
new family dynamic. In addition, professional counseling or therapy can help
children who are struggling with the emotional consequences of parental
separation by providing them with a safe space to explore their feelings,
process their experiences, and develop healthy coping mechanisms for the
future.
Divorce
is often caused by misunderstandings. When these trivial things turn into
divorce, children suffer the most. Innocent children know that families have
fights and anger. Many parents argue in front of their children, and the
violence begins in the child's mind. Many children blame themselves for their
parents' divorce.
Misunderstandings
often arise from lack of communication. Couples should carefully consider the
welfare of their children before divorcing and act accordingly. Parents must be
taught equal responsibility so that children do not suffer due to divorce.
India recognizes the alternative dispute resolution model and encourages this
model in domestic disputes. Mediation and negotiation are beneficial in
families because it is inexpensive, justice is done quickly, and the decision
is a win-win for both parties. Children are the future of the country and they
need to be nurtured properly and be protected from the negative effects of
divorce on them.
The impact of divorce on a child is profound
and multifaceted, affecting their emotional, psychological and social
well-being in different ways. While each child's experience is unique, research
and anecdotal evidence consistently highlight the challenges and difficulties
children can face when their parents divorce. The effects of a breakup can be
far-reaching and lasting, from feelings of sadness, confusion, and anxiety to
changes in behavior, academic performance, and social relationships.
But among the challenges, there is also room
for resilience and growth. . , and healing. By providing a supportive and
caring environment, promoting open communication, and prioritizing the child's
needs and well-being, caregivers can help mitigate the negative effects of
separation and promote the child's resilience and adaptability. Positive
relationships between parents, stable routines, access to support networks and opportunities
for emotional expression and validation are critical factors in helping
children cope with the complexity of parental separation.
In addition, it is important to understand
that the effects of separation. are not static and can evolve over time as the
child grows and adapts to new circumstances. By staying tuned to the child's
changing needs, providing ongoing support and reassurance, and seeking
professional help when needed, caregivers can facilitate the child's journey to
healing and adjustment.
Finally, separation can present significant
challenges for children and families. it also provides opportunities for
growth, resilience and developing strong supportive relationships. By
recognizing the impact of divorce on children and treating it with compassion,
empathy and understanding, caregivers can help mitigate its negative effects
and lay the foundation for the child's continued well-being and happiness.
[1] UN Convention on the Rights of the
Child, Art. 1.
[2] Indian Penal Code 1860, sec. 82.
[3] The Children Act 1960, Section 2
(1) (e).
[4] Juvenile Justice (Care and
Protection of Children) Act, 2015, Section 2 (k).
[5] The Prohibition of Child Marriage
Act, 2006, Section 2 (a).
[6] The Child Labour Prohibition and
Regulation Act, 1986, Section 2 (b).
[7] The Indian Majority Act, 1875,
Section 3.
[8] Portnoy, Sandford M, PHD. “The
Psychology of Divorce: A Lawyers Primer, Part 2: The Effects of Divorce on
Children” American Journal of Family Law; Eau Claire Vol. 21, Issue. 4, (Winter
2008): 126-134.
[9] Conger, et al. “Explaining the
Higher Incidence of Adjustment Problems among Children of Divorce Compared with
Those in Two-Parent Families” November 1999 Journal of Marriage and Family
61(4):1020.
[10] Vijender Kumar,‘Custody of Child :
A Critical Appraisal’, M.D.U. Law Journal, Vol.XI, Part-I, (2006), p. 78.
[11] (2008) 9 SCC 413.
Article Information
MARITAL DISCORD AND ITS IMPACT ON CHILDREN
Authors: NIRALI JAIN
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/01
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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