Family court cannot stay HC order
2) you can file petition in family court seeking sole custody of your daughters
3) in alternative file appeal against HC order before SC
4) take the plea it is difficult to travel 500 kms every month
Can I file a GWOP case to stay the high court order on HCP case regarding child custody and visitation?
I have two daughters (aged 14 & 6) living with me. Applied for divorce (HMOP) last year, Sep 2023 at family court which is ongoing and then I left the city with kids to hometown. Wife filed for HCP at high court in Dec 2023 and got interim visitation order which both parties complied. Later HCP was disposed in April 2024 with a final order directing the father (myself) to keep children in custody and show the kids to mother every month once which is a 500 kms away. Though she can visit the kids at anytime, but she's not interested in traveling long but the final court order has directed me that I should travel along with kids for visitation. Also the order states that both parties are at liberty to go to appropriate court for child custody/visitation. I don't know how long this visitation order is valid for if she don't go for GWOP option. Can I file GWOP at my district family court to stay the HC order or to avoid contempt case by my wife if in case she files if I'm unable to go for visitation? Its difficult for kids to travel every month for visitation, it would've been better if she is ordered to visit the kids instead of the other way around. Please suggest what should I do next.
Asked 8 months ago in Family Law
Religion: Hindu
Ask a question and receive multiple answers in one hour.
Lawyers are available now to answer your questions.
7 Answers
Yes if high gas only decided visitation rights than you can go ti family court and file petition for custody
You have to obey the court order and make at least two to three visits to her place with your kids.
If she is not interested to see her children during any one of your visits with the kids you may stop going there with your child and file a petition before the same high court seeking to relax the conditions imposed.
You may plead before high court your difficulties and can request the court to withdraw/close the visitation rights orders and permit you to approach appropriate court for the relief of child custody or visitation accordingly.
Dear client, lower courts cannot stay or overrule the order of the high court. You can file an appeal on the order of the High court pleading the difficulties in visitation. As the order states that both parties are at liberty to go to appropriate court for child custody then you can go to family court of jurisdiction accordingly to get the child custody.
If the kids can not bear the hurdle of long journey you can file an application in the High Court for the modification of the order which you are now complying with.
- Since, there is direction from the High Court for filing the child custody petition, then if your wife is not filing then you can file the said petition before the jurisdiction where the children are residing.
- Further, the family court has not power to set-aside /cancel the order passed by the High Court , however as the said order is not practical for you then you can approach the Supreme Court against that order.
Dear Client,
The visitation order remains valid until challenged or modified by a court order.
You can file a Guardian and Wards Act (GWOP) petition at your district family court to seek sole custody or modified visitation rights. This might stay the High Court order, but it depends on the judge's discretion.
Not following the visitation order could lead to a contempt case by your wife. Filing a GWOP petition demonstrates a proactive approach to modifying the order and could be considered in your defense.
The court prioritized your daughters' relationship with their mother, but the travel burden is a valid concern. In the GWOP petition, you can argue for visitation at your location or a closer neutral point.
If you are satisfied with the reply, kindly give me a 5 star rating.
Regards,
Arunkumar Khedia
Advocate Bombay Highcourt.
