CONSEQUENCES: The law assumes that in a custody battle children are better off with their mothers. But the thinking needs to be changed because fathers say they too are hands on. More want equal parenting rights as it benefits the children, writes Shanti Gunaratnam
WHEN real estate negotiator Low Swee Siong was finally given full custody of his 13-year-old daughter Low Bi-Anne in February following a highly publicised four-year custody battle, it gave hope to thousands of divorced men throughout the country who have been fighting a losing battle over child custody.
"While Bi-Anne's case is good news, it is a rarity. In custody battles, the odds are always stacked against us because the family courts almost always grant custody to the mothers, even when the child prefers to be with the father," says R.S. Ratna, founding member of the Association Against Parental Alienation Kuala Lumpur and Selangor (Pemalik).
When this happens, he adds, many men find themselves forcefully alienated from their children when vengeful ex-wives poison the children's mind into hating their fathers or deny them access to him.
"Our family courts and the law should promote equal parenting in custody battles. Children end up the biggest losers when they are alienated from a parent," he stresses.
Ratna says while shared parenting is still the best because children need both their parents, many divorced fathers have gone on for years without seeing their children.
"Often when mothers are given sole custody of the children especially in an acrimonious divorce, they prevent the children from seeing their father.
"Even when a father has 20 per cent visitation rights or weekend access to his children, mothers can and have stopped the children from spending time with them, he adds.
Ratna says the courts should be fair in awarding custody so that no parent is alienated from his or her child.
"Traditionally, mothers have always been viewed as the caregivers but times have changed and many fathers today are hands-on-dads who are more than capable of taking care of their children.
"The family courts should know and understand that children need both their parents. Couples can be fighting amongst themselves but what is important is that the children are never dragged into the mess as custody battles are ugly and it leaves a lifelong psychological impact on the children."
He says many fathers are at the mercy of their ex-wives when it comes to access to their children.
"Who do we turn to for help when we cannot see our children -- the courts, the police or our lawyers?" he asks.
Ratna says some frustrated fathers have even taken their own lives and that of their children as a result of parental alienation.
"When some fathers have no one to turn to, they resort to killing their children and then committing suicide.
"When couples divorce, we stop loving the spouse but not the children. Both the family courts and mothers should understand this."
Pemalik was launched in March 2007, to address the shortcomings in custody matters owing to the irregularities and weaknesses in the legal process and family courts.
Senior lawyer Ramesh Sivakumar says the best parents are both parents and it is time the Government amends Section 88 of the Law Reform (Marriage and Divorce) Act 1976.
"Currently our family law gives preference to the mother in cases of children below the age of 7. What happens if the father has solely cared for the child since birth? He is likely to lose custody of the child in the event of a divorce.
"It can take a long time before a divorce and custody arrangement becomes final. So temporary custody given to a mother, under Section 88 (3) of the Act gives a head start to the mother."
Courts, he says, are very reluctant to change a temporary custody arrangement for fear of disrupting the children's lives.
Ramesh opines that Section 88 of the Act contravenes the United Nations Convention on the Rights of the Child by denying the child the right to participate "meaningfully and fully" with both the mother and father.
"It is the responsibility of every government to protect the rights of children by ensuring they enjoy a continuing relationship with both their parents.
"Times are changing and fathers are much more involved in their children's lives than they were 20 or 30 years ago. But the law and the courts haven't changed quite as fast as fathers' have."
On parental alienation, Ramesh says Malaysia should emulate Brazil where it is a criminal offence to alienate a child from his or her parents.
Fathers want equal rights
1. Aru*, 51, has been separated from his wife for four years and claims his ex-wife makes it difficult for him to see his 6-year-old son although he has bi-monthly access to the child from 7.30pm on Fridays till 5.30pm on Sundays.
"Many times when I have gone to pick up my son, the venue and time (where he is to pick up the child) is changed. Imagine rushing from one place to another, sometimes in rush hour traffic. Denying my son his father's love, equals to child abuse.
Lashing out at family courts, Aru says they are the biggest contributing culprit to parental alienation as they do not take action against mothers who have flouted the law and court judgment.
2. Suresh* and his wife were divorced in 2006. Three years ago his ex-wife left her job and left the country with their daughter without informing him.
He says her lawyer refused to divulge information about her whereabouts, even to the courts.
In 2009, Suresh obtained a court order for his daughter's recovery and sought the assistance of various agencies including the Foreign Affairs Ministry.
While all this was going on, the court granted him sole custody of his daughter.
His ex-wife appealed the decision which was dismissed by the Court of Appeal. In February this year, his ex-wife then filed for a leave of application to appeal to the Federal Court.
"I have not seen my daughter for three years and can you imagine what I am going through? Where is the law on parental alienation?"
3. Taxi driver Jason P.K.* hasn't had proper access to his daughter for four years.
Although the court granted him weekend access, he has only been able to see and communicate with her through the gate of his ex-wife's house.
"I have not been able to even talk to her properly or take her out for meals because my wife locks her up. Whenever I want to see my daughter, I stand outside the house and talk to her through the gate and grille. She hardly says anything because she is afraid of her mother."
4. Kamal Reza, 50, is one of the lucky fathers because when his ex-wife wanted a divorce, he got full custody of the children.
At that time, his three daughters were between the ages of 2 and 7 and the Syariah Court granted Kamal custody.
"I told my wife that if she wanted a divorce from me, I must have custody of the children and she was agreeable to it. That was 12 years ago and the children see their mother regularly because she has access to them.
"I encourage my daughters to spend time with their mother because they need both their mother and father. Though they prefer to confide in me, some matters are best handled by their mother."
5. When Richie's* wife walked out on him and wanted a divorce, his biggest concern was his two children.
"My divorce was acrimonious and both my son and daughter were staying with their mother. But three years ago, my son decided to come and live with me."
But his daughter has burnt her bridges with him and refuses to even talk to him.
6. Ben* has been lucky to get access to his 5-year-old son from twice a month to every weekend, after his ex-wife ran foul of the law.
"My ex-wife committed some criminal offences and pending the outcome of those court cases, she agreed to give me custody of our child.
"I want my child to grow up in a healthy environment and a loving family. My ex-wife has come to realise that my son would be better off with me," he claims.
7. John*, 56, is fed-up with the family court, because he says that despite having access to his two children, he has not seen them for two years now.
"My ex-wife calls the shots and doesn't allow the children to see or bond with me. They are teenagers and need their father's guidance.
"The system doesn't favour the father. Where is the enforcement because my wife is clearly not complying with the court order."
8. When 43-year-old Sam* became a single father after his wife left him, his two children kept him going.
He claims his wife took the children away from him one day and when the matter was brought to the family court, his ex-wife was given custody of the children.
"Though my children want to live with me, the court has awarded custody to their mother and I only have bi-monthly access.
"The judge hearing the case also wanted me to surrender the children's passport to their mother but I am apprehensive about doing it because my ex-wife might take my children away for good."