Divorce is difficult. Parenting after divorce is more difficult. Children are easily affected by the divorce turmoil. The stress can produce physical symptoms as well as behavioral and emotional problems. Numerous studies have recorded damage an absent parent can cause.
Shared parenting arrangements are viewed as a good alternative for the children of divorce because it encourages children to know that both parents are actively involved and share responsibility in their upbringing. In contrast to the conventional sole custody approach where courts normally award custody to mothers (with all the responsibility for the children) and visitation rights to the divorced father, shared parenting emphasizes an equal (or nearly equal) role for fathers. In the world today where the majority of mothers are employed full time, the burden of juggling between a full time job and raising the children alone, is too taxing. Shared parenting seems to be a realistic arrangement.
Furthermore, studies show that the award of visitation rights to the divorced father has actually generated problems which affect the rights, interest, and welfare of the child. Instances of such problems include reduced contact between the child and the divorced father, non-fulfilment of child support obligation after divorce by the divorced father, and the denial of contact between the child and the divorced father by the divorced mother (through Parent Alienation Syndrome).
Some reasons for these problems are factors relating to the marital and financial status of the father, and the feeling of non-satisfaction on the part of the divorced father on not being recognised legally as having parental responsibility and care for the child.
Our legal systems (Civil and Shariah) have to change towards a direction that recognizes the importance of fathers in the lives of their children. When fathers are only given visitation rights every weekend or every other weekend, that is not a parent-child relationship. Until the courts stop ordering “visitation” and start giving fathers the same recognition given to mothers, children of divorce will continue to suffer.
A reflection on research findings on this issue by Chorlin et al., (1991) shows that the relationship between parents continues to be a critical factor in children’s and parents’ adjustment well beyond the termination of a marriage, should be taken seriously by our policy makers.
We should also take note that the greater the degree of marital conflict, the greater the extent of parental distress and inter-parental conflict after separation, and the more likely children are to be drawn into such conflicts (Tschann., Johnston, Kline, & Wallerstein, 1989).
We should also remember that children are torn between two conflicting parents and their involvement in their parents’ disputes is associated with children’s reports of conflicting loyalties (Johnston, Campbell, & Mayes, 1985).
Regardless of these research findings, the laws seem to discourage parental responsibility and care for the child after divorce by the party not awarded with the residence of the child. Islamic law emphasizes on shared parenting but somehow along the way, implementation of the law shows otherwise.
It is strange to see how Islamic law deviates from the shared parenting concept. The current Islamic law is challenged and said not to be in line with the legal and theoretical views of the schools of law. The views indicate that there should be joint parental responsibility and care for the child after divorce exercised not only by the divorced parents but also the other related parties. And divorce should not be made as an excuse by the related parties of not contributing to the upbringing and development of the child.
Both laws, civil and Shariah indicate that the party awarded with the residence will have the final say on the education and upbringing of the child. From the civil law perspective, it seems that for the divorced father if he is not awarded with the residence, although he is under an obligation to provide child support obligation after divorce, has no authority to give his own personal opinion on his child’s upbringing and education. These are considered the discretion of the divorced mother who is awarded with the residence.
On top of that, the courts are also given the jurisdiction to consider the wish as the qualified rights of the child. The qualified rights mean that the courts may override the wish although the child has reached a certain age limit enabling him to express personal opinions affecting his own rights, interest, and welfare if the opinions are contrary to the welfare of the child representing the best interests of the child.
Empirical study conducted by Akbar Kamaruddin (2011) on fathers’ visitation rights after divorce in Malaysia confirms several important patterns. The patterns are derived from the first ever national quantitative study on the courts’ decisions and qualitative analysis on the views and experiences of the divorced parents and the children of divorce.
His research findings show that both civil and Shariah courts in interpreting “the best interests of the child” normally prefer the conventional approach or sole custody arrangements than the modern approach or joint custody arrangements.
Second, under the sole custody arrangements, the courts normally award the residence of the child and parental responsibility and care for the child after divorce to the divorced mother and visitation rights to the divorced father. The phenomena suggests that the application of the arrangements generates some problems which actually affect the rights, interest, and welfare of the child such as no contact between the child and the divorced father and the non-fulfilment of child support obligation after divorce by the divorced father.
However, it is interesting to note that the respondents in this study generally recognise the importance of the joint custody or shared parenting arrangements. The child should be given opportunities to reside with both parents. Both parents should have parental responsibility and care. The opportunities should be based on conveniences and in line with the best interests of the child.
These are considered as the best interests’ factors which assist the courts in its interpretation. The existence of these factors guides the courts to be consistent when determining custody and visitation rights after divorce. The existence does not mean that the courts should be rigid. The courts are allowed to consider some other relevant factors which are in line with the best interests of the child.
In protecting the rights of all parties, parenting plans should be designed to reflect the modern day challenges and circumstances facing parents and minor children before, during and after the divorce. These plans should address the details of how the parents will share and be responsible for the day-to-day tasks in raising the children, time-sharing schedules for the time the children will spend with each parent, designation of who will be responsible for school-related matters. Methods and technologies for communicating with the children should also be considered.
This would be in line with recent legal reforms undertaken by some countries to decrease problems relating to the application of the conventional approach or sole custody arrangements are made through the application of the modern approach or joint custody arrangements.
In order to protect the rights of the child, i.e. to be brought up by both parents, there is a need to advocate legal reform. The main reason behind recommending such reform is due to the fact that not only are some countries have developed their laws to serve the best interests of the child but it was based on research findings which establishes new theories and practices which could benefit the future development and reforms of related laws in Malaysia.
Apart from reducing problems regarding custody and visitation rights after divorce, the laws in Malaysia may continuously be obsolete if not amended and considered unjust to the child and both parties if current developments fail to protect the rights of children to be brought up by both parents. They are not pawns. They are humans with feelings. They have the right to be heard as well. Our laws have been stagnant for 35 years. It is time to wake up.