In Overseas Child Custody Battle, Delhi High Court's "Deep Roots" In India Order

The Delhi High Court has held that while orders passed by foreign courts deserve due respect, they cannot be the "sole determining factor" in deciding child custody cases, especially when the child has developed "deep roots" in India.

A bench of Justices Navin Chawla and Ravinder Dudeja was hearing cross petitions filed by divorced parents seeking custody of their minor daughter, who was born in the United States.

In its April 1 order, the court said, "Merely because the child by birth is a citizen of the USA or had stayed there for a few years as her parents were there cannot alone be the determining factor for determining the welfare of the child."

The court noted that the girl, now 11 years old, has been living and studying in India with her mother for nearly four years. The mother was granted a divorce by the Superior Court of New Haven in 2022.

The couple, both Indian citizens based in the US, were married in 2011. Their daughter was born in the United States in 2015, making her an American citizen by birth.

The dispute has its origins in allegations made by the mother in 2017, when she claimed the father had sexually abused their daughter during her second birthday. 

The father was subsequently arrested, and a protection order was passed in 2022.

However, in May 2022, the US court granted a divorce and issued a joint parenting order, finding no merit in the allegations of sexual assault and observing that the mother had been coaching the child against the father.

In June 2022, the mother brought the child to India, citing the father's illness. The Delhi High Court later observed that the move was not bona fide and, in September 2022, stayed the US court's order.

Taking note of the child's current circumstances, the High Court said that directing her return to the US would effectively compel the mother to go back as well, without any certainty about the duration of her stay there.

Observing that the child is now settled in India, the court dismissed both petitions and left it open for the parents to pursue alternative legal remedies for guardianship and custody in accordance with law.