Custody battle warfare: The unseen predicaments — Dexter Mah (Loyarburok.com)
MAY 12 — In a perfect world, a man would fall in love with a woman and they would start a family. The couple would watch their children grow up. The couple will grow to love each other more and spend the rest of their lives together in bliss.
Reality is obviously a different story all together. Life has its share of tribulations and marriages almost never work out the way they are planned, lest perceived. Of course many factors contribute to a breakdown in a marriage and in many cases divorces would ensue.
Whilst the spouses argue on who has lost more in a broken marriage, one fact is undisputed. The child is the main victim. Many a time couples get so embroiled in a bitter and acrimonious marital dispute they sometimes fail to see what it really is in the interests of their children.
This article does not seek to provide solutions but is intended to raise awareness in some of the predicaments arising in custody issues.
Determination of custody rights of the child
Perhaps the best start to this is laying down the fundamental principles of the rights of the respective non-Muslim parents to their children. This is governed by the Law Reform (Marriage and Divorce) Act 1976. A child is considered a minor until he or she reaches the age of eighteen years and until then, the issue of custody, care and control of the child is unless agreed between parties, is a matter for the Civil Court to decide.
In deciding which parent the custody rights ought to be granted to, the Court’s most important factor is the welfare and interests of the child. Simply put, what is best for the child.
In its purely legal sense, the Court would just look into the positions and opinions of the respective parent and what each party can offer to give the best to the child in terms of financial, physical and emotional support. If the child is able to profess his or her independent opinion on which parent he or she chooses to be with, this will also be taken into account by the Court before deciding on who is granted custody of the said child.
Reality and its implications
I write about my personal observations on the difficulties and what I would call “human issues” that complicate the process of determination of the custody rights of a child and it is because of these “human issues” that often impede the onerous duty of even the most compassionate and understanding Judge. Whilst the observations made below are not exhaustive, they are nevertheless prevalent situations that arise over and over again in most custody matters.
Maintenance is generally described as financial sums given by a spouse, usually the husband, on a regular basis for the purpose of the daily sustenance of his family.
The most common misconception amongst women, in particular the less educated housewives are that they would lose custody rights to their children due to their lack of financial resources.
I have seen for myself women who are loving and dutiful mothers who have devoted their lives to raising the children, give up custody of their children labouring under the misunderstanding that they are not entitled to custody rights of their children because they do not have money.
As a result of this, the innocent child ends up in a less than desirable environment where they spend their time at the day-care centre with domestic maids, or worse, mostly unattended while the father works.
The law is quite clear. There are provisions compelling a husband to pay maintenance to the wife and the children in particular when he has refused or neglected to provide for the family or if he abandons the wife and the children.
The husband can even be compelled to pay maintenance even before a divorce proceeding is commenced and if he has not been paying maintenance, the Court can compel the husband to pay the amount owing for up to a period of three years.
Under certain circumstances, the Court even has the power to order that properties belonging to the husband can be used as security, or in layman’s term as “an assurance” that the husband pays the maintenance for the wife and family.
I now make it clear that there is nowhere in the law that says that a woman who has no job or money will lose a custody fight against a husband whom she has been financially dependent of.
As a matter of fact I have no qualms in advocating that it is because for the sake of the husband and the children, the wife has sacrificed her career and financial independence and this fortifies the stand that she is the most qualified person to have custody of her own children!
The saving grace, albeit its limited applicability to this matter is the law. Even when a mother has given up custody rights of her child in Court, she can still regain custody rights by applying to the Court for a variation but she must convince the Court that it would be reasonable and that the child would be better off with her now.
I might be chastised for saying this but do not relinquish your custody rights of your own children because you fear you are not able to afford them. I have seen clients who cry with regret that they had given up custody rights because of their financial worries and sometimes it is often all too late when they realise this.
I strongly believe that where there is sheer determination, a single mother can work things out. There are now many network support and associations established to assist such parents and I have myself seen many single mother clients who have successfully raised children and at the same time managed to develop a career despite the adversities faced.
This is perhaps the most critical issue that the Courts may not be able to observe or control simply because it is in operation outside the Court room and is so subtle that only the persons close to the child would notice.
In a bitter marital dispute, there would be so much ill feeling and hatred between the spouses that it would invariably spill into the realm of their parenting roles. This is especially more so when the spouses are already separated and as such, they would be spending time with their children separately and the spouse may inevitably point out the bad things, wrong doings and weaknesses of the other spouse to the child so as to cast a bad impression or worse, instil fear in the child in an attempt to weaken the bond between the other spouse and the child.
Young children are highly impressionable and despite their intelligence, they are emotionally weak and vulnerable. They are susceptible to these “war of words” and having innocent minds, they can be easily deceived into believing what their parents say, regardless of whether there is truth in such words.
This situation is more often than not aggravated when children being children, can be swayed by the more financially better off parent who will shower them with expensive toys and pleasurable outings and thus give them the impression that they will have a more enjoyable place and time if they are to be with the said parent. In fact this is often the most common trick some irresponsible parents resort to, to win the children’s hearts.
I have heard of these lines more times I can care to imagine:
“Daddy says if I stay with him, he will buy me toys and take me shopping all the time and if I stay with mummy, mummy only makes me do homework and will beat [me] if I do not study.”
The sad thing is that whilst there is every reason for a mother to push a child to do homework and study, the child may lack the maturity to understand the rationale behind such discipline and as such, this could be interpreted by them as being “loved less” or “having less fun” as compared to be being the father. For these obvious reasons, the child may choose to be with their father.
This is even worse when sufficient fear has been instilled in the child’s mind where he or she has become incapable of being independent. I have come across of children saying if they followed their mothers, they will die because the mother has no money or the father will beat them very hard. These are terrifying words to a four-year-old child who does not understand what is happening between his or her parents.
If the child professes his desire to be with a parent without explaining his reasons or without the cognitive ability to explain so, or worse out of fear of something, and these subtle signs are not picked up, the decision on custody rights can be made contrary to a child’s interests.
A child psychologist can sometimes be appointed to detect, make professional assessments and perhaps report these situation but we have to face the fact that not many parents can afford the financial resources to do so, especially housewives who are wholly dependent on their husbands.
Lack of legal representation
In the absence of any Court Order, both parents have equal custody rights to the children. However the law also states that under certain circumstance, it is presumed that a child of less than seven years old would be better of being with his or her mother. In this respect, the Court would also take into account of whether the child’s life will be disrupted by changes in custody and whether such changes will be undesirable for the said child.
However, there have been situations where many a more financially well off party has sought to exploit to their advantage.
In the course of a marital dispute and the couple would have been staying apart, a party could seize the opportunity to forcefully take custody of the children and denying access to the other parent.
If there is no court judgment or order stipulating the custody rights in place, there is really nothing at that juncture that can be done to compel the return or access of the children to the deprived party.
Can you now imagine the situation if the deprived parent has no finances to engage a lawyer to represent him or her? What if the deprived parent, due to his or her financial constraints or lack of education, takes a considerable amount of time to be able to find a lawyer willing to take the matter to court? The delay and its ramifications are more serious than one can fathom.
Even if a lawyer is engaged, a court case can take months and much damage can be done to a child in this period of time. The parent having custody of the child would have ample opportunity to “brainwash” the child into believing many things about the other parent.
The child may then be taught to believe he is happier with the particular parent and hence his desire to remain with that parent. At the same stance, as time moves on, the child especially the very young one, may become very comfortable and happy with the subsisting environment and its surrounding social network.
The deprived parent, in seeking custody rights for the child, is now attempting to remove the child from his or her present lifestyle and living conditions. It may then become arguable that “any change in the custody will disrupt the child’s life and hence is undesirable to the child.”
By this ground, a parent would have lost the custody battle before it has even begun.
At the end of the day, if the motive of the parent in fighting custody rights is not so much for the interest of the child, but as a means to “punish” the other spouse or to gain ground in the ensuing divorce proceedings, the innocent child would have been the biggest casualty.
I end this article not with a conclusion but with an impassioned plea. Children are blessings from God. Whatever decision a parent makes in respect of their children has a deep and more often than not, irreversible impact on their well being and future.
Whilst the parents give up on the marriage, they must never forget that the children are the innocent ones and they are not the cause of the marital problems.
Do not give up the children for the wrong reasons. If a spouse feels hurt because he or she has been abandoned by the other spouse, imagine the hurt and feelings of a young child has to experience when their most loved one, be it the father or mother walks out on him or her. The psychological scars on the child caused by the act of abandonment are far reaching.
There is also nothing worse than fighting for custody of the children for the wrong reasons and treating them as bargaining chips and pawns to be traded in a marital dispute. This is an act of irresponsibility and betrayal of the young child’s trust in his or her parent. Any parent who does this is never fit to be a parent.
Please do not gamble with the child’s future.
* This is the personal opinion of the writer or publication. The Malaysian Insider does not endorse the view unless specified.