KUALA LUMPUR, Feb 13 — The courts should favour granting custody of children to the non-violent parent insteading of sending them to live with the one accused of domestic abuse, the Association of Women Lawyers (AWL) said today.
Commenting on the Federal Court’s split custody of one child each to Hindu mother S. Deepa and her Muslim convert ex-husband Izwan Abdullah, AWL president Goh Siu Lin noted the judges had reached their decision by interviewing the two children Mithran and Sharmila — aged eight and 11 respectively.
But Goh highlighted that Deepa had not only complained of domestic violence by Izwan through more than seven police reports from 2007 to 2012, but had received an interim protection order against Izwan on August 2013.
For child custody dispute cases like Deepa’s where there was domestic violence, Goh said many countries including the United States (US) have changed how they view the best interests of the child.
“It may be timely for Malaysia to implement legal reform and structural changes to keep abreast of legal developments in the area of domestic violence and custodial rights,” she said in a statement.
She recommended Malaysia reform its laws to “adopt the legal presumption of guardianship and custody in favour of the non-violent spouse”.
She had earlier cited the US National Council of Juvenile and Family Court Judges’ Model Code on Domestic and Family Violence, which recommends a rebuttable presumption that it would not be in the child’s best interests to be under the custody of the person who committed family violence.
The Model Code instead states that the child’s best interests would be ensured if sent to live with the non-violent parent.
Goh said Malaysia can introduce “guardian ad litem” program, or guardians appointed to ensure the best interests of children in complicated custody cases, including where there is alleged domestic violence and child abuse, and where siblings are torn apart through serious imbalance of power between their parents.
She also suggested the courts or government agencies set up secure visitation centres for safe access for families torn apart by domestic violence, as well as having the courts impose measures in the child custody orders to protect the non-violent spouse from the violent one.
“For example, requiring the violent spouse to undergo relevant anger management or ‘batterer’s treatment programme’, substance abuse treatment, the imposition of anti-molestation orders to protect the non-violent spouse or children,” she said, adding that the violent spouse can be blocked from receiving the personal information of the children and non-violent spouse to ensure their safety.
“It is hoped that such measures would in some part alleviate the continued domestic violence or abuse of women and children post-divorce and to avoid the separation of children from their loving and non-violent parent,” she said, stressing that abusive spouses should not use the legal system to further breach the rights of those they had abused.
Earlier in her statement, Goh had cited an earlier decision by the Federal Court in a 1980s custody case of an 8-year-old child — Manickam v. Intherahnee.
The Federal Court had then recognised the “superior status of the unimpeachable parent” when it said that the welfare of the child was to be of paramount consideration, with the wishes of the unimpeachable parent to come first.
- Federal Court Judgment of S Deepa: Domestic Violence & Child Custody — Goh Siu Lin [13 Feb 2016]
- Separating siblings in custody order tears family apart, say family law experts [12 Feb 2016]
- Court gave ‘disobedient’ Muslim convert custody, says lawyers’ group [11 Feb 2016]
- Lawyer: Decision in Deepa’s case failed to address unilateral conversion, legal reforms still needed [11 Feb 2016]
- Court gives girl to Hindu mother, son to Muslim dad [10 Feb 2016]
- Civil court should decide on custody of converted children, Federal Court rules [10 Feb 2016]