A mature child’s refusal of overnight custody warrants respect, with supervised visitation preserving parental bonds.

The parties’ minor son had lived with the mother since October 2020; the elder son had been living with the father since May 2021.

In pending guardianship proceedings, the Family Court granted the father overnight visitation and eight days’ interim custody during the summer vacation, despite recording that the child was reluctant to stay overnight with him.

On appeal, the High Court modified the arrangement to permit one overnight stay at a hotel so the brothers could spend time together. The child left the father’s company before the overnight stay was completed.

The High Court subsequently interacted with the child, who said he did not wish to stay overnight with his father but was not opposed to visitation.

1. Whether the father’s overnight visitation could continue when the child repeatedly expressed unwillingness to stay overnight and the attempted overnight visit had not been completed.

2. What visitation arrangement would best serve the child’s welfare while preserving the relationship with his father.

Section 17(3) of the Guardians and Wards Act, 1890 requires the court, when considering a minor’s welfare, to have regard to the child’s wishes if the child is old enough to form an intelligent preference.

The controlling consideration in custody and visitation matters is the child’s welfare, not either parent’s superior right; the child’s wishes, the suitability of the environment, and the parent’s ability to care for the child are relevant factors, relying on Gayatri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471.

Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, was also cited for the principle that a child capable of forming an intelligent preference should have their wishes ascertained and considered in determining custody.

The Court found the child intelligent and mature enough to understand the proceedings, and considered his consistent preference against overnight stays, expressed both to the Family Court and to the High Court.

The attempted overnight arrangement had caused evident distress and had not achieved its intended purpose of strengthening the father-child bond.

Applying the welfare principle, the Court concluded that overnight custody should not continue, but that denying the father all contact would also not serve the child’s welfare. It therefore substituted structured, supervised visitation in a familiar setting.

The original summer-custody order had expired and been overtaken by subsequent orders, so its merits were not further examined.

A missed visit, with prior notice by WhatsApp or email, was to be substituted by the following Sunday. The existing video-calling arrangement was to continue, and the Family Court could consider expanding visitation after assessing the child’s response.

The appeal and pending applications were disposed of, and the parties were directed to appear before the Family Court on 12 October 2026.