Court leaves it to child: Stay with grandparents or father during custody?

Holding that temporary custody is meant to “foster a relationship” not only between the child and the non-custodial parent but also with the grandparents, the Calcutta High Court has modified a temporary custody order that required the father to return the minor child to the mother whenever he spent a night away from his residence.

Justice Om Narayan Rai observed that a nine-year-old child is old enough to express his wishes and should be allowed to decide whether he wants to spend a night with his grandparents in his father’s absence,  while keeping the child’s welfare and preferences at the forefront.

“The idea of granting temporary custody to the non-custodial parent is to foster a relationship between the child and the non-custodial parent, as well as the grandparents. The child is nine years old and should therefore be expressive,” the June 24 order noted.

Child temporary custody to father

The case arose from a custody battle between the estranged parents over a minor child; the father had filed a matrimonial suit seeking divorce and custody of the child, and meanwhile, during the pendency of the case, he also applied for temporary custody of the child during the summer vacation.

The Trial Court granted him custody from June 22 to July 6, 2026, but on the condition that if the child had to stay anywhere other than his residence overnight, he would have to return the child to the mother and could only take the child back after returning home.

The father, aggrieved by the trial court’s decision to impose the aforementioned condition, filed an appeal challenging the order before the Calcutta High Court.

Senior advocate Jishnu Chowdhury, appearing for the father, submitted that the application for temporary custody was for the child to have the company of the father and the father’s family members. It is submitted that in such a view of the matter, the condition imposed on the father to return the child, in case he stays a night anywhere other than the father’s residence, is improper.

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Senior advocate Aniruddha Chatterjee, appearing for the mother, argued that the father’s prayer itself was for having the temporary custody of the child, while he and his parents spent time with the child together. It was submitted that in such a view of the matter, the trial court was quite justified in imposing the condition that it has done.

It was further contended that the child itself was unwilling to stay alone with the paternal grandparents and, as such, no interference was called for with the conditions imposed by the trial court.

Modified conditions

The high court observed that the child, being a 9-year-old, should express on his own whether he wants to stay with the grandparents or not.

The court also added that the reason behind granting such temporary custody is to foster a relationship between the child and non-custodial parent, as well as the grandparents.

The court feels it should be left to the child to decide as to whether the child would like to stay/spend any night with the grandparents in the absence of the child’s father or not.

The court said that the mother would always have telephonic access to the child in terms of the order.

Even if the child wishes to stay/spend a night with his grandparents in the absence of the child’s father, it would be incumbent on him to return to his residence after spending one night anywhere other than the residence.

Child can stay with grandparents

The court mentioned that the child can stay with the grandparents in the absence of his father, only for one night at a time, provided that the child consents or wishes to do so. Needless to mention that the father will inform the mother, in case he is required to stay outside his residence or anywhere else than the residence for any night, well in advance.

The court held that the order stands modified only to the extent indicated above without any other interference. The timings as regard the taking over of the child and returning the child, as mentioned in the order, would remain unchanged, and with the aforesaid observations, stands disposed.

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The court clarified that all the other terms and conditions mentioned in the order shall remain unchanged. Since, in view of the pending revisional application, the father did not take custody of the child on June 22, 2026, the temporary custody of the father shall stand extended to July 8, 2026 instead of July 6, 2026.