Custody Decisions by Syariah Courts in Malaysia: An Empirical Study
List of Authors
  • Anis Shuhaiza Md Salleh, Junaidah Abd Karim, Rokiah Abdul Kadir, Safiek Mokhlis

Keyword
  • child custody, Act 303, hadanah, child preference, family law

Abstract
  • When the courts make custody decisions in favour of mothers or fathers, they are for the children’s welfare and best interests. To this end, depending on the circumstances of the case, the courts normally consider several factors as provided by the law. Among these factors, it is important to determine which ones have a significant impact on the outcome of the cases. This can be achieved by conducting a quantitative analysis. As no related studies have been published, the current study was conducted to quantitatively analyse past custody decisions and identify the significant factors considered by the Syariah Courts in these decisions, thus offering added value to pertinent parties in terms of predictive benefits. Past cases were analysed under Malaysian Islamic law and involved custody claims in Syariah Courts. There were 47 reported cases, covering 30 years (1987-2017). To identify these influential factors, an analysis was conducted using the research technique of content analysis, and a Chi-Square test was run. It was found that in more than 60% of cases, mothers have won child custody against the fathers, and the factors of child preference and continuity of residence enhance the likelihood of a parent receiving custody. By quantitatively analysing the associations based on a conceptual model, the current study has added a new dimension to the literature on studies involving custody decisions in Malaysia. Rather than treating custody decisions as mechanical applications of statutory provisions, this study also conceptualises Syariah Court decision-making as a form of socio-legal practice shaped by judicial interpretations of welfare, morality and stability.

Reference
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