QUESTION REGARDING CUSTODY RIGHTS: Assalamu’alaikum. I am Natasha Fellina from Ampang, Kuala Lumpur. I have already divorced with my husband for five (5) years already and out of the marriage, we are blessed with two kids, a son aged 16 named Aman (not his real name) and a daughter aged 14 years old named Arina (not her real name). Ever since we got divorced, Aman stays with my husband at Lorong Maarof, Bangsar, and he is enrolled in a private school in Bangsar. On the other hand, Arina resides with me at Ampang and also attends school at the same place where I work at as a Chemistry teacher. I was told by my former husband’s sister that my former husband is planning to get married to her office secretary, Belinda. That news infuriated me as I have a feeling that my husband’s attention towards Aman might diminish and his welfare might be neglected due to the extra commitment that he will have once he got married to Belinda. I am not trying in the least to separate my son from his own father, but as his mother, who gave birth to him, and carried him in the womb for nine whole months, all I want is for my son to get the best for his life and his future. I am willing to have full custody over both of the children and would prefer Aman to stay with me rather than having to stay with someone that he barely knew of. I doubt Belinda could be a good mother to a young adult like Aman, as she is only 25, a very young lady herself and she has zero knowledge and experience about motherhood. Therefore, my question here is, with regards to the children’s custody (hadhanah), between my former husband and I, who amongst us would be best entitled with the custody over both of the children? This is because, I remain single ever since the divorce took place 5 years ago, and the children have already reached the age of mumayyiz. How about the visitation rights if one of us is granted with full custody over the children? Thank you.

ANSWER:

1. Wa’alaikumussalam. Thank you Puan Natasha for the questions. I truly understand and would like to express my deepest concern towards the worries that you have regarding your children’s future and welfare. Before we delve further into the matter, we firstly have to determine the underlying issues, in order to be able to reach a viable solution. The issues which can be drawn are:

• Whether the biological mother can be granted with the custody rights over the children?
• Whether the visitation rights can be conferred to the other party, should the custody is granted to one of the parties.

WHETHER THE BIOLOGICAL MOTHER CAN BE GRANTED WITH THE CUSTODY RIGHTS OVER THE CHILDREN

2. After determining the issues in this present question, it is advisable for us to have the correct and clear understanding about custody rights or hadhanah in Islam. According to a book entitled “Islamic Family Law in Malaysia” by Najibah Mohd Zin et al. (2016), hadhanah is literally defined as “to clasp in one’s arm or to embrace someone”. The book continues to provide the technical definition of hadhanah as defined by Al-Sayyid Sabiq, which carries the meaning of “the care or protection granted to a child or a lunatic who has yet to be independent, by way of providing for their needs, protecting them from danger and nurturing their body, soul and mind.”

3. From the above definitions, we could understand that the concept of hadhanah transcends beyond the physical care of a child, as it also includes the nourishment of the inner aspects of the child, such as nurturing the correct ‘aqeedah in the child’s life. Interestingly, our present case involves children who have attained the age of mumayyiz, which means the age of discernment between right and wrong.

4. Referring to Section 81 of the Islamic Family Law (Federal Territory) Act 1984, subject to Section 82 of the Act, “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.” However, since this case involves children who have attained the age of mumayyiz, and not infant children, this provision could not automatically be applied in this case.

5. We have to bear in mind that in determining the person who is best entitled to claim the right of being a hadhinah in a case where the children have attained the age of discernment, based on the case of Bashirah bt Ishak v Zawawi bin Zakaria [2015] 3 SHLR 7, the learned Judge had referred to kitab al Um, written by Imam al-Shafi’e, Volume 3, which states that when a child has attained the age of seven or eight years old, i.e. a sense of maturity, the child has the liberty to choose either to be with the father or the mother.

6. The above finding is in line with Section 84(2) of the Islamic Family Law (Federal Territory) Act 1984 which states:

… 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.

7. The right to choose which is conferred upon the children is also underpinned in a hadeeth which is cited in the Islamic Family Law in Malaysia by Najibah Mohd Zin et al. (2016), whereby the hadeeth reads:

Narrated by Abu Hurairah that a woman came to the Prophet p.b.u.h. and asked: O Messenger of Allah, my (former) husband wants to take my son away when he (my son) is capable of bringing water from the well of Abu ‘Inabah and it is very useful for me. The Messenger said to the child: This is your father and this is your mother, choose either one of them. The child chose his mother and then both of them left.

8. The rationale of granting the mumayyiz child with the right to choose his or her own custodian is due to the fact that the interest of the child overrides the interests of the parents. The presumption is that the person that is chosen by the child is more loving and caring towards the child and thus the interests of the child would thereby be more protected and guaranteed, as expounded in the Islamic Family Law in Malaysia by Najibah Mohd Zin et al. (2016).

9. The principle of the welfare of the child as the paramount consideration in child custody application is reflected in the provision of the Islamic Family Law (Federal Territory) Act 1984, Section 86(2) which reads:

(2) In deciding in whose custody a child should be placed, the paramount consideration shall be the welfare of the child and, subject to that consideration, the Court shall have regard to –

(b) the wishes of the child, where he or she is of an age to express an independent opinion. 

10. Nonetheless, the right conferred upon the child to choose his custodian is not an absolute right as the right must not jeopardise the child’s upbringing or even welfare. There are three conditions which need to be satisfied before a child can exercise his/her right to choose the guardian. The conditions have been outlined in the Islamic Family Law in Malaysia by Najibah Mohd Zin et al. (2016). They are as follows:

• The persons elected must be from ahl al-hadanah as stated in page 144, volume 9 of Al Mughni by Ibn Qudamah.
• The requirements of hadhinah must be duly satisfied by both of the persons chosen by the child as stated in Minhaj, page 392 by Al-Nawawi and at page 92, Volume 5 of Al-Umm written by Al-Shafi’e.
• In exercising this right, the child must possess the ability to make a decision, as quoted in Al-Mughni, page 144, Volume 9 by Ibn Qudamah and at page 92, Volume 5, Al-Umm by Al-Shafi’e.

11. A child’s participation in a judicial proceeding involving the right of child custody is in fact recognised by the United Nations Convention on the Rights of the Child, in its Article 12(1), as cited in an article entitled; Children’s Participation in Custody and Access Proceeding, written by Roslina Che Soh.

12. Based on case laws such as the case of Bashirah bt Ishak v Zawawi bin Zakaria [2015] 3 SHLR 7, the Court would conduct an interview with the children to know the guardian(s) of their choice that they would want to stay with, before the Court makes its wise decision. With regards to the power of the Court in granting the right of child custody, Section 86(4) of the Act deserves to be highlighted. It says, “Where there are two or more children of a marriage, the Court shall not be bound to place both or all in the custody of the same person but shall consider the welfare of each independently.”

13. Thus, based on the above provision and the Court’s ruling in the case of Bashirah bt Ishak v Zawawi bin Zakaria [2015] 3 SHLR 7, provided that the children agreed to remain with their respective parents and should the Court be satisfied that the children’s welfare are guaranteed by preserving the status quo of the children; i.e. the son to be remained with the husband and the daughter to stay with the wife, the decision pertaining to the right of custody would likely be as such.

14. Nevertheless, if both children decide to be with the biological mother, then it is likely that the status quo would be changed, provided that the welfare of the children are best protected, and the wife has fulfilled all the qualifications of a hadhinah and has not committed any act which could disqualify her from being a hadhinah. Thus, in such a case, the answer to this issue would be in the affirmative.

WHETHER THE VISITATION RIGHTS CAN BE CONFERRED TO THE OTHER PARTY, SHOULD THE CUSTODY IS GRANTED TO ONE OF THE PARTIES

15. With regards to the above issue, the Law makers have foreseen the interest of the parent who is not granted with full custody, by granting him/her the right of visitation and access to the child. This can be seen under Section 87 of the Act which says:

(c) provide for the child to visit a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody at such times and for such periods as the Court considers reasonable;

(d) give a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody the right of access to the child at such times and with such frequency as the Court considers reasonable;

16. Hence, in line with the decision made in a 2014 case of Faizuddin bin Tasaruddin against Zairawati binti Mohd Fauzi, which can be accessed on Jabatan Kehakiman Syariah Selangor’s (JAKESS) website, the parent who is being denied from the custody has the right of visitation and access to the children. And based on the case of Bashirah bt Ishak v Zawawi bin Zakaria [2015] 3 SHLR 7, if the children are to be placed separately, one with the wife and the other with the husband, the segregation should not break the ties and relationship between the children as siblings, and between the children and both parents as a divorce in Islam is bound by three magical words which are “separate with kindness” – Qur’an:229.

CONCLUSION

17. In conclusion, as this case involves mumayyiz children, a right to choose the guardian of their choice is conferred due to their maturity of thinking to make a sound decision. This right is enshrined under Section 84(2) of the Islamic Family Law Federal Territory Act (1984) which states: … 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.

18. If one of the parties (the husband/wife) disagrees / is not satisfied with the choice made by the children, the Court will commence a full trial, whereby the Court would conduct an interview with the children to know the guardian(s) of their choice that they would want to stay with, before the Court makes its wise decision.

19. However, as has been discussed above, the right to choose which is granted to the children is not absolute. The discretion lies with the Court to decide otherwise if it deems that the welfare of the child is better guaranteed and protected in deciding as such. If both children choose to be with the biological mother, the welfare of the children are protected by placing them under the custodian of the mother, the mother has fulfilled all the qualifications of a hadhinah and has not committed acts which could make her lose her right of hadhanah, then, it is most likely that both of the children would be placed under the care and custody of the biological mother.

20. On the other hand, the parent who has been denied from the right of child custody would be granted with visitation right. As the issue of hadhanah involves several matters, it is advisable for you to consult a Syari’e lawyer whose area of expertise also covers the area of hadhanah, with the hope that you would be better enlightened pertaining to this case. Wallahu a’lam.

Article published for Peguam Syarie Faiz Adnan