SHAH ALAM - In the country's Syariah legal system, custody disputes between parents are governed not only by Islamic family law but also by strict moral and legal standards, particularly when one parent has a criminal history.
Syarie lawyer Mohd Syafiq Norizan said past and ongoing criminal records can play a decisive role in determining who is granted custody of a child.
He said if the court was satisfied with the supporting evidence, such as criminal records, it has the discretion to disqualify a parent from guardianship.
"Even if the marriage is still intact and there is no divorce, either parent may lose custody based on the same criteria mentioned earlier.
"When deciding a custody case, the court, after hearing evidence from both parties, will determine custody based on who can best ensure the child’s welfare and safety," he told Sinar Daily.
Syafiq also referred to Section 87(2) of the Islamic Family Law (State of Selangor) Enactment 2003, which places the child’s welfare as the court’s primary consideration when determining custody.
He noted that in addition to the child’s wellbeing, the court will also take into account the preferences of both parents, as well as the views of the child if they were old enough to express their opinion.
Criminal records may lead to disqualification from custody
He said although the Islamic family law prioritised the biological mother in custody matters, both parents were subjected to disqualification if deemed unfit.
"Custody of a child will be granted and decided upon when such a case is filed in court. If the father files for custody, he must prove that he is qualified to be the legal guardian of the children.
"Under Section 82 of the Enactment, custody is typically granted in the following order: first to the biological mother, then the maternal grandmother and only afterwards to the father," he said.
Syafiq added that if the father filed for custody while the mother was still alive, the mother must be named as the defendant in court.
He added that the wife or mother may then submit a counter-claim to seek custody of the children.
Syafiq also pointed out that the father’s chances of gaining custody could be affected if he has a history of past or ongoing criminal records.
Criteria for disqualification from custody
He said under Section 84 of the Enactment, a mother may lose her right to custody in several situations.
Among the grounds for disqualification included behaving in an openly immoral or excessive manner, relocating with the intention of preventing the father from visiting the child (except if the move is to her hometown or place of birth), leaving Islam (apostasy) or neglecting and abusing the child.
Regarding fathers, Syafiq said that Practice Direction No. 15 of 2007, issued by the Department of Syariah Judiciary Malaysia outlined similar conditions under which a father can be disqualified from obtaining custody.
These included engaging in openly immoral or excessive behaviour, apostasy, neglecting or abusing the child, being mentally unfit, or suffering from contagious illnesses such as leprosy or vitiligo that could pose a danger to the child’s wellbeing.
When children can voice their preference
The law also recognised the opinions of children who have reached the age of discernment (mumaiyiz), which is considered seven years for boys and nine for girls.
In such cases, the Syariah Court may interview the child to understand their preferred guardian, he said.
However, Syafiq said the child’s choice would not be followed blindly, but it is used as a guide or added value in the court’s decision-making.
He added that priority will always be given to the party who can best safeguard the child's welfare.
Risk of custody being denied to parents with criminal backgrounds
In situations where one parent has both past and active criminal records while the other has a clean record and is capable of caring for the child, Syafiq pointed out that custody will most likely be granted to the parent without a criminal background.
This, he said was because the court will consider the potential risks to the child, including exposure to criminal activities, external threats and general safety concerns.
He added that Syariah court decisions on custody matters fell exclusively under its jurisdiction.
He said civil courts have no authority to interfere in such rulings as stipulated in Schedule Nine, List II of the Federal Constitution.