Introduction

Child custody disputes are among the most emotionally fraught issues before family courts. In these conflicts, love often becomes litigation, and children—caught in their parents’ battles—bear wounds that last far beyond the divorce decree. Recognizing this persistent social and legal problem, the Calcutta High Court has issued the Mandatory Child Access & Custody Guidelines (2025), applicable across West Bengal and the Andaman & Nicobar Islands.

The proceedings originated from two connected Public Interest Litigations—WPA (P) 257 of 2021 filed by Dr. Ratul Roy and the Ayushman Initiative for Child Rights (AIFCR), and WPA (P) 166 of 2022 filed by Antara, a non-profit society—both seeking judicial intervention for the formulation of uniform and enforceable guidelines governing child custody, access, and parenting, in view of the absence of any structured legal framework within the State of West Bengal and the Andaman & Nicobar Islands. Pursuant to a Division Bench order dated 19 July 2022, the matter was referred to the Hon’ble Rule Committee of the Calcutta High Court for consultation, drafting, and engagement with relevant stakeholders. After extensive deliberations involving District Judges, child psychologists, judicial academies, and non-governmental organizations, the Rule Committee, in its final meeting held on 18 September 2025, approved the modified Guidelines and Parenting Plan, which were thereafter placed before the Division Bench for final judicial approval.

 

These Guidelines are a landmark development in Indian family law. For the first time, courts and litigants in these jurisdictions are required to follow a uniform procedure for determining custody, access, and parenting arrangements, centred on the best interests of the child. Among the most significant innovations is the introduction of a Child Custody Affidavit — a sworn statement each parent must file, disclosing comprehensive personal, financial, and care-giving information.

The affidavit aims to bring transparency and uniformity to custody proceedings, ensure accountability, and assist judges in making decisions based on facts rather than conjecture. However, while the intent is laudable, its structure and scope raise vital questions about privacy, accessibility, procedural fairness, and enforceability.

This article presents a critical appraisal of the Child Custody Affidavit as envisaged in the Calcutta High Court Guidelines — analysing its strengths, systemic gaps, and areas for reform to make it truly child-centric, constitutional, and practicable.

 

I. The Vision Behind the Custody Affidavit:

The Preamble to the Guidelines eloquently frames child welfare as a constitutional and moral imperative. Drawing from Articles 15(3) and 39(f) of the Constitution and Articles 3 and 9 of the UN Convention on the Rights of the Child (UNCRC), it asserts that every child has a right to grow “in conditions of freedom and dignity” and maintain meaningful contact with both parents.

The Custody Affidavit is intended to translate this principle into procedural reality by:

1. Creating a standardised disclosure framework for all custody litigants.
2. Reducing misinformation and delays caused by incomplete or inconsistent pleadings.
3. Helping courts evaluate each parent’s care-giving capacity with objectivity.
4. Facilitating realistic and enforceable parenting plans and access schedules.
5. Holding parties accountable for false or incomplete disclosures.

In theory, this is a powerful tool for shifting custody litigation from rhetoric to evidence. But as the following sections show, the affidavit’s current design risks undermining its very objectives.

 

II. Strengths of the Custody Affidavit:

1. Transparency and Uniformity

By prescribing a common format, the affidavit ensures that both parties disclose the same categories of information — from residence and employment to care-giving patterns — enabling courts to make fair, data-driven comparisons.

2. Early Fact-Finding

Requiring sworn disclosures at the outset accelerates the court’s understanding of each parent’s situation and allows focused interim orders instead of prolonged fact-finding hearings.

3. Accountability Through Oath

Filing under oath deters false statements and supports later enforcement or contempt proceedings if deliberate concealment is proven.

4. Foundation for Parenting Plans

The data collected can serve as the factual base for detailed parenting plans — a progressive practice emphasised in the Guidelines.

5. Potential to Reduce Litigation Time

Standardised disclosures can cut procedural delays, narrow issues in dispute, and improve settlement rates through mediation.

 

III. Weaknesses and Risks in the Present Format:

Despite these advantages, the affidavit’s current form — as published in the Guidelines — exhibits several structural and constitutional flaws.

Issue	Critical Observation	Impact on Child / Litigation
1. Overly Burdensome & Complex	The affidavit spans more than 10 dense sections, demanding detailed financial, property, and medical disclosures. Many self-represented parents may find it incomprehensible.	Risk of incomplete or inaccurate filings; delays; non-compliance.
2. Privacy Violations	No provision for sealing sensitive information (medical records, addresses, bank data).	Potential misuse in parallel proceedings; breach of dignity and safety.
3. No Clear Verification Mechanism	The court is not mandated to cross-check disclosures through documents or independent verification.	Affidavit risks becoming a “formality without substance.”
4. Missing Safety Exceptions	Presumes regular contact with both parents even in high-conflict or abusive cases.	Endangers children and survivors of domestic violence.
5. Child’s Voice Absent	The form does not capture the child’s own perspective or emotional needs.	Violates the participatory spirit of Article 12 of the UNCRC.
6. Focus on Finances Over Feelings	Extensive financial queries overshadow care-giving and emotional aspects of parenting.	Undermines the “welfare” principle by equating capacity with income.
7. Static, Not Dynamic	The affidavit is a one-time filing with no provision for periodic updates.	Fails to account for changes in job, residence, or health.
8. No Enforcement Protocol	Penalties for falsehood or concealment are vaguely referenced but not operationalised.	Weakens deterrence; encourages tactical disclosure.

 

IV. Legal and Constitutional Concerns:

1. Right to Privacy (Article 21) – The sweeping disclosure requirements, if not properly sealed, risk infringing on privacy and dignity (Justice K.S. Puttaswamy v. Union of India, 2017).
2. Right to Equality (Article 14) – A complex affidavit without access to legal aid disadvantages poor or unrepresented litigants.
3. Best Interest Principle (Article 39(f), UNCRC) – Over-emphasis on financial metrics ignores the child’s emotional and relational needs.
4. Right to Be Heard (UNCRC Article 12) – The affidavit process must not silence the child’s voice.

 

V. Recommendations for Reform:

1. Tiered Affidavit Structure

Provide two formats:

• Basic Form for routine custody/access cases.
• Detailed Form for complex financial or relocation matters.

2. Confidentiality & Sealed Filing

Sensitive data (income, medical, address) must be filed in sealed annexures accessible only to the judge and authorised officers.

3. Verification Protocol

Courts should be empowered to direct limited verification through income-tax, school, or social-welfare authorities when necessary. Like the Social Investigation Report in the Juvenile Justice (C & P of Children )Act ,2015  along-with Rules 2016.

4. Safety & Domestic Violence Clause

Affidavit should expressly exempt or modify disclosure for survivors, ensuring no forced contact or exposure to abusive parties.

5. Incorporate the Child’s Voice

Include a “Child Interaction Summary” — recorded through counsellors or guardian’s ad litem — as an annexure.

6. Periodic Update Requirement

Mandate supplementary affidavits every 6–12 months or upon significant change in circumstances.

7. Enforcement & Penalties

Clearly spell out consequences for false statements, including costs, adverse inference, or contempt.

8. Simplify Language & Provide Legal Aid

Plain-language forms and affidavit-help desks at family courts can improve compliance and access to justice.

1. Include Special category

Include the exceptional custody cases for adopted children, step children or in case where custody would be given to an person considered fit in place of the parent by any order of the court.

 

VI. Comparative Perspective:

The Calcutta High Court’s move mirrors international best practices.

• UK & Canada: Custody affidavits (called parenting statements) are shorter, with privacy safeguards and counsellor involvement.
• Australia: “Family Dispute Resolution” mandates pre-litigation parenting plans, reducing adversarial filings.
• Japan (2024 Amendment): Recently adopted joint custody with strict judicial oversight — similar in spirit to these Guidelines but with built-in verification and counselling mechanisms.

India’s Guidelines can benefit from adopting these procedural safeguards to make the affidavit both humane and functional.

 

VII. Model Clause (Suggested Text):

“All information disclosed under this affidavit shall be used solely for custody proceedings and shall remain confidential. Except where demonstrable risk exists, the Court shall presume that meaningful and regular contact with both parents is in the child’s best interest. This presumption is rebuttable upon credible evidence of harm or endangerment.”

This single clause balances transparency with protection — embodying both the ‘Puttaswamy Privacy Principle’ and the UNCRC welfare standard.

 

Conclusion

The Child Custody Affidavit envisioned by the Calcutta High Court’s 2025 Guidelines is a progressive instrument that can bring much-needed order and accountability to custody litigation. It aligns with the modern vision of shared parenting and a child-first justice system.

However, without safeguards for privacy, flexibility, and accessibility, the affidavit risks becoming a bureaucratic burden rather than a welfare tool. To truly fulfil its promise, it must evolve from a disclosure document into a dynamic, participatory, and child-protective mechanism — one that balances the right to know with the right to be safe.

In the end, the success of these Guidelines will not be measured by the number of forms filed, but by whether children emerge from custody battles with their innocence, trust, and emotional stability intact.

Author’s Note

This article aims to promote informed dialogue on child-centred legal reform. It recommends structural improvements to the Child Custody Affidavit under the Calcutta High Court’s 2025 Guidelines to ensure they realize their noble intent — protecting children from becoming collateral victims of adult conflict.

Reference:  Calcutta High Court’s order dated 23 September 2025 in WPA (P) 166 of 2022 (Antara & Anr. v. The Hon’ble High Court at Calcutta) and WPA (P) 257 of 2021 (Dr. Ratul Roy v. The State of West Bengal & Ors.).