In determining the custody of a child, both Islamic law and civil law agree that the paramount consideration lies in the interest or welfare of the child. Factors of consideration in determining the interest of the child, to a certain extent, parallel in both Islamic law and Civil law—except in the matter of religion. For instance, both Islamic and Civil law consider the age and gender of the child, the child’s preference (if the child is of an age to express an independent opinion), the parents’ capability to raise the child, and the conduct of the parties. However, when a parent in a civil marriage converts, question arises whether the religion of the parents or the parties involved is considered the sole factor, or one among several factors (even if it is the main factor), in safeguarding the interest of the child.
Contradictory rulings by the Civil and Syariah Courts in child custody cases can complicate matters of justice. It has been argued that this dual system enables a spouse who had contracted a civil marriage to convert to the Islamic faith and misuse the Syariah court as a means of claiming child custody and evading financial responsibilities imposed upon the husband under the civil law.
In Islamic law, it was agreed by all Muslim jurists that when a marriage is dissolved, the right of custody of an infant will be given to the mother. This is a prerogative right of the mother, since a mother is naturally not only more tender, but also better qualified to cherish a child during infancy. Furthermore, a mother is more compassionate than the father in dealing with the children. She also normally spends more time at home. The mother is the one who will breastfeed the child and the one who knows better about the children in terms of education and upbringing. In other words, the mother and her female ancestors are the preferred custodians for the sole purpose of serving the best interests of the child.
Muslim jurists conclude that the custodial parent is not only responsible for the daily care and control of the child; he or she is also responsible to decide all matters in which the child could not decide for himself, especially with regards to his upbringing and education. This principle has been provided in section 82(1) of the Islamic Family Law (Selangor) Enactment 2003 (IFL).
In case the mother is disqualified under Islamic law from having the right of custody of her children, Section 82(2) of IFLS lists several other persons in the order of preference. Nevertheless, the section also imposes the condition that the custody of such person should not negatively affect the welfare of the child. To make sure that the interest of the child is preserved, the Syariah Court is also empowered to make order for custody.
In Islam, religion is also an important criterion in determining child custody. Ibn Qudamah, a well-known Hanbali scholar of the 12th century, stressed the importance of religion in in this regard saying that “custody is aimed at looking after the child, so it should not be given in a way that will be detrimental to his welfare and his religious commitment”. Additionally, according to Syafi‘i and Hanbali schools of law, the custodian must profess the religion of Islam, otherwise, he or she should not have custody.
On the other hand, in the Hanafi and Maliki schools, professing the religion of Islam is not the only custodial requirement, therefore opening the possibilities for the non-convert parent to gain the right of custody. However, the Hanafi and Maliki schools do lay down certain restrictions, for example, the custodian should not influence their children pertaining to religious belief other than Islam. Restrictions include prohibition against taking the children to church, teaching them religion other than Islam, and asking them to eat pork or consume alcohol.
Ultimately, the preservation of a child’s religion should glean from the concept of Maqaṣid al-Syariah. The concept refers to the objectives of Syariah in implementing laws and policies in all aspects of life, including family matters. These Syariah objectives consist of protecting the five essential values, namely religion, life, intellect, lineage and property.
The vast literature of Islamic jurisprudence offers several key principles in resolving the issue custodial conflict between interfaith parents, such as the principles of siyasah syari’yyah, maṣlaḥah and ‘adalah. These principles serve as important guidelines and supplement each other.
In line with the amendment of section 51 LRA in 2017, conflicting parties from different religions should petition a divorce and seek remedies at the Civil Court, including the right of custody for the children. A mediation committee can be set up, and this would not require legal amendments as it can be made administratively. The panel appointed must consist both the Muslim and non-Muslim parties where both can negotiate and reach an agreement that ultimately benefits the child.