How to lose custody

In the event of a divorce, child custody automatically goes to the mother.

Such is the provision of Section 82(1) of Enakmen Undang-undang Keluarga Islam (Negeri Selangor) 2003 (hereinafter referred to as "EUUKIS").

In the event the mother is not capable of taking custody, or loses her rights, then Section 82(2) of EUUKIS states that the subsequent order of priority for child custody is as follows

1. Maternal grandmother
2. Father
3. Paternal grandmother
4. Sister(s) from the same parents
5. Sister(s) from the same mother
6. Sister(s) from the same father

 and so on...

  

It appears that as a father, I rank 3rd behind my ex-wife.

  

So how does one, lose custody?

Pursuant to Section 84 of EUUKIS, a mother will lose custody if she fulfils ANY of the following conditions

1. She remarries and the child's walfare will be affected as a result of the marriage;
2. Excessive or openly bad behavior;
3. She changes her residency in order to deny the child's father access to monitor the child. Exception is if and when the she returns to her hometown;
4. She renounces Islam; or
5. She neglects or abuses the child

As child custody automatically goes to the mother, the burden of proof is on the father (or anyone else laying claim to custody), that the mother had fulfilled any one of the above conditions.

I was recently informed by a Syariah High Court officer in Kuala Lumpur and an officer at Jabatan Agama Islam Wilayah Persekutuan that for custody cases in Wilayah Persekutuan, a mother will automatically lose custody in the event she remarries.

As for the father, Arahan Amalan 15 Tahun 2007 states that a father will lose custody if he fulfils any one of the following conditions

1. Excessive or openly bad behavior;
2. He renounces Islam;
3. He neglects or abuses the child;
4. He is mentally unsound;
5. He is suffering from leprosy, vitiligo or any other contageous diseases dangerous to the child

At the end of the day, the Syariah Courts will ultimately consider the child's walfare as of paramount importance when making in its decision.