JellyPages.com

"Hidup Memerlukan Seribu Pengorbanan"

"Hidup Memerlukan Seribu Pengorbanan"

Monday, July 7, 2014

RIGHT OF CUSTODY

RESEARCH QUESTION : IF SALIMAH APPLY FASAKH WHILE BEING IN BONDING WITH HER ​​HUSBAND, WHO IS ELIGIBLE TO GET CHILD CUSTODY?
            According to the section 81 of Islamic Family Law (Federal Territories) Act 1984 (Act 303) the persons entitled to custody of a child, the mother shall be of all persons the best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution. The Court is of the opinion that the mother is disqualified under Hukum Syara' from having the right to hadanah or custody of her children, the right shall, pass to one of the following persons
a)      the maternal grandmother, how-high-soever; 
b)      the father; 
c)      the paternal grandmother, how-high-soever; 
d)      the full sister; 
e)      the uterine sister; 
f)         the sanguine sister; 
g)      the full sister's daughter; 
h)      the uterine sister's daughter; 
i)        the sanguine sister's daughter; 
j)        the maternal aunt; 
k)      the paternal aunt; 
l)        the male relatives who could be their heirs as 'asabah or residuaries;[1]
Provided that the custody of such person does not affect the welfare of the child. In addition to the section 81 of IFLA, no man shall have a right to the custody of a female child unless he is a muhrim, that is to say, he stands to her within the prohibited degrees of relationship.
            In Islamic perspective, if divorce did take place, and both parties demand their rights, then the right of custody will be in the following way. In should be remembered here that there is nothing wrong in making a mutual arrangement, as long as there is no objection from those who have a right to custody. The mother has a right of custody for a male child until the child is capable of taking care of his own basic bodily functions and needs, such as eating, dressing and cleaning himself. This has been recognized at seven years of age. In the case of a female, the mother has this right of custody until she reaches puberty. This has been declared at nine years of age. (al-Mawsili, al-Ikhtiyar li ta’lil al-mukhtar). The reason for this is that, in the early years, the mother is more suitable for raising the young child (regardless of sex) with love, mercy, attention, and motherly care. The male child after reaching the age of understanding (7) is in need of education and acquiring masculine traits, which is why he is then transferred to the father. The female child, after reaching the age of understanding is in need of being inculcated with female traits, which she receives by living with her mother. After reaching puberty, she is in need of protection which the father offers. However, the custody of either of the parents can be revoked should staying with him/her be detrimental to the child’s upbringing. It should also be remembered that after the transferral of custody from the mother to the father, the boy remains in the custody of the father until puberty, at which point, if he is mature and wise, he is free to choose with whom to live, or to live on his own. As for the girl, custody remains with the father until she marries. Irrespective of who (mother/father) has the rights of custody, the other party has visitation rights according to mutual understanding and consent. Generally, the party having the rights of custody uses the child as a weapon to punish the other party by depriving them of visitation rights. This is totally against the concept of Islam and a grave sin. It is also very harmful to the child. At all times, the father of the child is responsible for maintaining the child; in the case of a female, until she marries; while in the case of a healthy male, until he reaches maturity. In the case of a disabled child (male or female) the father is permanently responsible. When the mother has the rights of custody but does not have a shelter to stay in with the child, the father must provide shelter for both.[2]
            Before we discuss further, we have to know what is custody. Custody can be define as  the legal authority to control a child. The power to make important decisions about a child is generally referred to as "legal" custody. The power to maintain physical, day-to-day control over a child is generally referred to as "physical" custody. The custodial parent is the parent with physical custody of a child. The other parent is the non-custodial parent. Both parts of custody - legal and physical - can be sole or joint.[3] Child Custody refers to who has legal decision-making authority in the life of a child. The decision-making authority is usually in regard to major life issues such as religion, education, health and activities.[4] Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parentand his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.[5]
            According to the custody, the party decides the right of custody is most laws regarding child custody are state laws. In case of a divorce, it is the court which has jurisdiction over the proceedings who will determine which parent or guardian gets child custody. In most cases, parents with children under 18 years of age will be required to file for custody in case of divorce or annulment. For children under 21, both parents will be mandated to provide support following the Child Support Standards Act.[6]
            In addition, the qualifications necessary for custody is according to the section 82 of Islamic Family Law (Federal Territories) Act 1984 (Act 303), A person to whom belongs the upbringing of a child, shall be entitled to exercise the right of hadanah if;  
a)      she is a Muslim; 
b)      she is of sound mind; 
c)      she is of an age that qualifies her to bestow on the child the care, love, and affection that the child may need; 
d)      she is of good conduct from the standpoint of Islamic morality; and 
e)      she lives in a place where the child may not undergo any risk morally or physically.[7]
            The right of custody, may lost from Salimah according to the section 83 of Islamic Family Law (Federal Territories) Act 1984 (Act 303), the right of hadanah of a woman is lost:
a)      by her marriage with a person not related to the child within the prohibited degrees if her custody in such case will affect the welfare of the child but her right to custody will revert if the marriage is dissolved; Reffering to cases Maheran binti Abdullah v Khairudin bin Abd. Majid and Norhaiza v Saat
b)      by her gross and open immorality;
c)      by her changing her residence so as to prevent the father from exercising the necessary supervision over the child, except that a divorced wife may take her own child to her birth-place; 
d)      by her abjuration of Islam; 
e)      by her neglect of or cruelty to the child.[8]
            Beside know the custody itself, we have to know also the duration of the custody. It is according to the section 84 of Islamic Family Law (Federal Territories) Act 1984 (Act 303), the duration of the custody:
1)      The right of the hadinah to the custody of a child terminates upon the child attaining the age of seven years, in the case of a male, and the age of nine years, in the case of a female, but the Court may, upon application of thehadinah, allow her to retain the custody of the child until the attainment of the age of nine years, in the case of a male, and the age of eleven years, in the case of a female. Abdul Rahman v Husna dan Another One.
2)      After termination of the right of the hadinah, the custody devolves upon the father, and if the child has reached the age of discernment (mumaiyiz), he or she shall have the choice of living with either of the parents, unless the Court otherwise orders.[9]
            There are few factors that the courts consider in granting the right of custody. In some states, especially if the children are young, they look at who has primarily taken care of the child during the child’s life (washing, feeding and clothing the child, for example, or helping the child with homework), who has the best approach to discipline, who has cared for the child since separation (if the couple has already separated), what work schedules either or both parents have, and how each parent can provide for the physical, emotional, educational, religious, and social needs of the child. A parent can hire an expert such as a child psychologist to conduct interviews and a parenting assessment. After the psychologist has interviewed both parents and sometimes the child, he provides recommendations to the court as to which parent should be the parent of primary residence and why. If one or both parents do not have enough money to hire experts to testify in court, a court will sometimes order its own investigation to be conducted by a state or county social worker, who then makes recommendations to the judge regarding custody of the children.[10] A parent who wants to win full custody rights should know what to expect prior to a court proceeding. A court will consider the following factors in determining which parent should win full custody rights:

1)      Paternity: A father who is interested in obtaining full custody of a child should have acknowledged paternity of the child. A father may acknowledge paternity by signing the child's birth certificate or by acknowledging paternity during a paternity proceeding in court.

2)      Father's relationship with the child: A judge will inquire into the parent's relationship with the child, prior to awarding full custody rights. A parent should be prepared to respond to questions regarding his relationship with the child during a child custody proceeding. A judge will also ask about past regular visitation.

3)      Child's relationship with his/her mother: A court will be reluctant to interrupt a child custody arrangement that seems to be working, especially if the child's mother is the primary caretaker of the child. For example, a court would consider altering a custody arrangement if the child is in danger. For example, if the child's mother has a mental illness or if the child's mother is using drugs. A father who wants full custody of a child should be prepared to present evidence that a change in circumstances warrants a complete change in custody.[11]

Amongst are the cases relating to the custody are:

1)      Maheran binti Abdullah v Khairudin bin Abd. Majid.

2)      Tunku Mahmood Shah bin Tunku Mohammad v Noor Faridah Sutherland bt. Abdullah.

3)      Nong Azman Shah v Ahood Thamer Badei.

4)      Abdul Rahman v Husna and Another One.

5)      Mohamed Radzi v Khadijah.

6)      Norhaiza v Saat.

7)      Safura b. Badaruddin v Azhar b. Arifin.

8)      Faridah binti Daud and Another One v Mohd. Firdaus Abdullah @ Jettle Francis.

9)      Mohd Radzi bin Haji Che Daud v Khadijah binti Yaacob.[12]



[1]) Islamic Family Law (Federal Territories) Act 1984 (Act 303), Page 53.
[2])Retrieved from http://jamiat.org.za/blog/custody/, 23/05/2014, 12.01 am.
[3]) Retrieved from http://forms.vlex.com/vid/what-is-custody-454678, 23/05/2014, 11.46 pm.
[4]) Retrieved from http://www.yoursocialworker.com/s-articles/custody.htm, 23/05/2014, 11.47 pm.
[5]) Retrieved from http://en.wikipedia.org/wiki/Child_custody, 23/05/2014, 23.49.
[7]) Islamic Family Law (Federal Territories) Act 1984 (Act 303), Page 54.
[8]) Islamic Family Law (Federal Territories) Act 1984 (Act 303), Page 55.
[9]) Islamic Family Law (Federal Territories) Act 1984 (Act 303), Page 55.

No comments: