Custody of minor --- Welfare of child --- Scope --- Any decision regarding the custody of a child without assessment and determination of the latter's welfare and best interests by taking into consideration the relevant factors and variables cannot be sustainable , nor can the exercise of discretion be lawful --- Welfare of a minor and the latter's best interest is the foundational principle for deciding custody.
PLD 2024 SUPREME COURT 629
Custody of minor - Welfare of child --- Scope --- Mother contracting second marriage --- Not ' a bar to granting custody to the mother - In the present case admittedly , the petitioner ( mother ) has contracted another marriage after her divorce and her second husband had children from his first wife --- From the reasoning recorded in the judgments rendered by the Guardian Judge / Judge Family Court as well as the appellate court it appeared that the petitioner's second marriage and the age of the minor were the two factors that had prevailed for granting custody of the minor to the respondent ( father ) --- Validity -- In the present case , the minor was confident , intelligent and mature enough to form his own preferences --- He had unambiguously stated before the Supreme Court that his father was no more than a stranger because he had not had the opportunity to spend time with him --- He had also stated that he was not familiar with the other members of his father's family and thus for him they too were strangers --- Minor visibly appeared to be happy and comfortable with his mother and his relationship with his step father also seemed to be pleasant ... It was obvious from the record that the respondent , despite being his father , had not made a serious and meaningful effort to assert his visitation rights --- Minor was definitely not prepared live with his father at this stage --- He nor willing to unambiguously stated that he preferred to remain in the custody of his mother with whom he had lived since his birth --- Crucial factor of the welfare of the minor and his best interest was not taken into consideration by the courts --- In such an eventuality the minor would have been compelled , without his consent , to abruptly shift to a new abode where all the inhabitants would have been strangers to him --- It would have definitely exposed him to unimaginable mental and emotional trauma - It could have resulted in irreversible lifelong psychological scars --- It was obvious from the record that neither the family court nor the appellate court had taken appropriate steps to assess the welfare of the minor and , instead , the question of custody was decided on the basis of other factors --- Factors taken into consideration could not override the criterion of adopting the course which would have been in the best interest of the child --- Courts had erred in failing to inquire into or assess the emotional and psychological impact on the minor in case of an abrupt displacement from the custody of his mother with whom he had lived since his birth --- Relevant factors such as the parenting capacity , relationship of the child with each parent , the mental health of both the parents as well as the minor , the latter's emotional and mental needs and such other relevant factors in the context of determining the welfare of the child were not taken into consideration let alone assessment and determination of a course that would have been in the best interest of the child --- Petition was converted into an appeal and allowed ; the impugned judgments / orders were setaside , and consequently it was directed that the custody of the minor shall be retained by the petitioner ( mother ) --- Supreme Court expected that as reasonable and responsible parents the respondent and the petitioner would amicably settle the custody dispute having regard to the best interest and welfare of the minor , and that a visitation schedule would also be , settled by them in such manner which would not breach the principle of the welfare of the minor .
PLD 2024 SUPREME COURT 629
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