A socio-legal study on father visitation rights after divorce in Malaysia

Abstract

Generally, the law relating to custody and visitation rights after divorce recognises the best interests of the child as the main consideration. The interests is adopted through sole or joint custody. Although Malaysia recognises the interests through sole custody, the recognition actually represents thirty years of non-legal development. The non-legal development demonstrates failure on part of Malaysia to follow some countries which have executed legal reforms based on social reality. These countries have adopted joint custody in resolving problems arising from sole custody based on recent studies. Under sole custody, the mother is mostly awarded with custody of the child. It means that the mother obtains the residence of the child and parental responsibility as well as care for the child. Visitation rights are mostly awarded to the father. The main problem arising from sole custody is the lack of contact between the child and the father. The other problem concerns child-support obligation. Common cited reasons of these problems include parental remarriage, financial status, negligence, responsibility as well as care for the child, and geographical distance. Some may argue as to whether Malaysia is facing the same problems which require the legal reforms. Thus, this study attempts to answer the argument. Although this study discusses and analyses legal history, theories, and practices under Civil and Islamic laws with specific references to Malaysia, it also involves those based on the Malaysian sample. The sample includes the patterns of the decisions of the Civil and Shariah courts, experiences, and challenges faced by the parents and the children through the quantitative (1302 court cases) and qualitative (19 informants) methods. Legal history highlights the recognition of the best interests of the child as the main consideration. Legal theories and practices focus on how the interests is interpreted through the best interest factors. This study confirms patterns made by the recent studies concerning the dominance of sole custody. Under sole custody, custody of the child is mostly awarded to the mother and the father is mostly granted with visitation rights. The lack of contact between the child and the father is also the main problem under sole custody. Common reasons behind this problem include remarriage, financial status, and parental negligence. Apart from these patterns, the most important trend is the recognition of joint custody based on facts of the case. Some court cases establish the willingness of the judges to award joint custody although Malaysia recognises sole custody. The informants generally believe that joint custody should also be recognised based on facts of the case. The attitudes of the judges and the informants should demonstrate the necessity of Malaysia to also adopt the legal reforms as executed by these countries based on social reality. The reality should also be considered as strengthening further the best interests of the child as the main consideration.