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SOCIAL SCIENCES & HUMANITIES Application of Shared View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by The International Islamic University Malaysia Repository Pertanika J. Soc. Sci. & Hum. 25 (S): 293 - 300 (2017) SOCIAL SCIENCES & HUMANITIES Journal homepage: http://www.pertanika.upm.edu.my/ Application of Shared Parenting in Malaysia: Appraising the Australian Experience Suzana, A.*, Roslina, C. S., and Najibah, M. Z. Ahmad Ibrahim Kuliyyah of Laws, International Islamic University of Malaysia (IIUM), 53100 Kuala Lumpur, Malaysia ABSTRACT Internationally, shared parenting has been highlighted and agreed to be the best method in protecting the welfare of the child. The religion of Islam also promotes the concept of shared parenting to ensure that the welfare of the child is well protected. In Malaysia, legislation on child custody emphasises that the welfare of the child shall be given paramount consideration but there are no provisions on shared parenting and specific guidelines on its application. An amendment was made to the laws to include a provision on equal parental rights but it does not directly relate to the principle of shared parenting. The vagueness of the law and the lack of proper guidelines in relation to shared parenting open the doors for the courts to render inconsistent decisions in determining custodial rights, and this often results in decisions in favour of sole custody. The absence of specific laws on shared parenting has also caused difficulties for parents in cooperating for the sake of their children. They tend to stress on their conflicts and fight for their rights rather than focus on the welfare of the children. This paper seeks to discuss the current position of shared parenting after marital separation in Malaysia. As Malaysia practises a dual legal system, this paper will also examine the suitability of applying the shared parenting principle in both systems. A brief comparative review will also be made of Australian law and policies, which are more advanced on the subject of shared parenting. Keywords: Child custody, welfare of the child, shared parenting, Malaysian law, Australian law ARTICLE INFO Article history: INTRODUCTION Received: 24 January 2017 Accepted: 30 May 2017 Historically, the father has the highest E-mail addresses: authority over his family as he is the [email protected] (Suzana, A), [email protected] (Roslina, C. S.), breadwinner of the family and his property [email protected] (Najibah, M. Z.) * Corresponding author will be inherited by his children. His wife ISSN: 0128-7702 © Universiti Putra Malaysia Press Suzana, A., Roslina, C. S., and Najibah, M. Z. comes into inheritance under the concept made by parents that can also be called as of unity, where in the event of separation, and associated with joint physical custody, the wife cannot claim anything and the ties joint legal custody, time sharing and shared between her and the children are loosened as residence (Roslina, 2010). Some people she has no legal standing anymore, thereby associate shared parenting with equal shared breaking the concept of unity. So, her role parental responsibility and shared care. is less important and less appreciated. It can However, shared parenting is different be seen that the father is obliged to maintain, in terms of visitation right. In sole custody protect and educate children. Roman culture cases, visitation right is always given to is even worse as the father is given absolute one parent. In most cases, the court will decisive power over the family, even over award the non-resident parent reasonable their life and death (Moloney, 2009). visitation right and the resident parent must Then, in the late 1990s, maternal always keep the non-resident parent updated behaviour was considered paramount on the progress and development of the in child development and fathers were children (Sunthari, 2012) but in reality, the often thought to have small significance resident parent tends to abuse this power in parenting as children across the world by interfering with the visitation right spent most of their time with their mothers. awarded to the non-resident parent. Constant Some argued that fathers contributed little interference creates tension and frustration to children’s development except for their for the non-resident parent, often resulting economic support. (Sotomayor-Peterson, in lack of contact with the children (Sano, Cabeza De Baca, Figueredo, & Smith- Richards, & Zvonkovic, 2008). Interference Castro, 2013) and others believed that can be in terms of disallowing the children fathers were not genetically fit for parenting. from seeing the non-resident parent, offering Fathers then started to get involved in or an inappropriate visitation schedule, getting custody of their children as they among others. believed that they could raise their children Shared parenting arrangement is viewed on their own (Dyer, Day, & Brigham, 2014). as a good alternative for the children in Essentially, shared parenting is the the event of divorce because it encourages purposeful practice of two parents sharing children to know that both parents are equally in the domain of child raising, actively involved and share responsibility housework, breadwinning and time for in their upbringing (Zaleha Kamaruddin, themselves. When both parents are fully 2011). Children’s right to know and love both competent in all four domains, they will parents is protected under the shared custody find themselves in a harmonious situation system but not under the ‘sole custody and without having to inflict negative effects visitation’ system. Therefore, children adjust on the children (Vachon & Vachon, 2010). much better to their parents’ separation Shared parenting is a kind of arrangement under the shared custody system. Many 294 Pertanika J. Soc. Sci. & Hum. 25 (S): 293 - 300 (2017) Application of Shared Parenting in Malaysia countries have opted the shared parenting the state parties relating to child welfare and system; hence, judges and legislators should that they should uphold ‘the best interests of move quickly to encourage this option in the the child’ as an important principle. interest of children, non-custodial parents, Furthermore, the first international grandparents and custodial parents (Spruijt interdisciplinary organisation of divorce & Duindam, 2008) scholars and family practitioners, the International Council on Shared Parenting, Position of Shared Parenting under has come to a consensus that sole custody International Law does not really uphold the principle of the best interest of the child. Instead, shared Internationally, many organisations and parenting is the best arrangement for the societies are aware of the importance of development of the child. The amount of protecting the welfare of the child and shared parenting time considered as the best the principle of ‘the best interests of the is a minimum of one third the time with child’ has been recognised as a significant each parent up to equal (50-50) parenting part in matters pertaining to children. time. Thus, shared parenting encompasses The Convention on the Rights of the parental responsibilities as well as parental Child 1989 is the first legally binding rights over the children. international instrument to ensure that the Another instance of international world recognises that children have human recognition on shared parenting is the rights. Malaysia ratified this Convention in African Charter on The Rights and Welfare 1995. Article 3 stresses that the welfare of of The Child. The unique factors of the the child must be a primary consideration African socio-economic, cultural, traditional in all cases concerning children. Article 18 and developmental circumstances, natural clearly emphasises the importance of both disasters, armed conflict, exploitation and parents as being equally responsible for the hunger make people realise that African upbringing of their children (Azizah, 2011). children need to be protected and they need In addition, the South Asian Association to live in a healthy surrounding to ensure for Regional Cooperation (SAARC) sound development of their mental and Convention on Regional Arrangements for physical well-being. Article 4 of the Charter the Promotion of Child Welfare in South provides that the best interests of the child Asia is established as a medium to facilitate shall be the primary consideration in all and help in the development and protection actions concerning the child undertaken of the full potential of South Asian children by any person or authority. In addition, in with understanding of all relevant rights, all judicial and administrative proceedings, duties and responsibilities. Article 3 of the children shall be given rights to express said Convention affirms that the Convention their views and the authority shall take their should be referred to as a guiding force by views into consideration. Pertanika J. Soc. Sci. & Hum. 25 (S): 293 - 300 (2017) 295 Suzana, A., Roslina, C. S., and Najibah, M. Z. Position of Shared Parenting under Guardianship of Infant Act 1961 (GIA 1976) Islamic Law and the Law Reform (Marriage & Divorce) Generally in Islam, the concept of shared Act 1976 (LRA 1976). These statutes are parenting is illustrated in the Quran in based on English law, while common law surah At-Talaq verse 6, where Allah says, cases are also frequently referred to by “Take mutual counsel together, according to judges. On the other hand, laws that govern what is just and reasonable.” Islam
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