In determining the custody of a child, both Islamic law and civil law agree that the paramount consideration is the interest or welfare of the child.
Factors in determining the interest of the child, to a certain extent, run parallel in Islamic law and civil law, except in the matter of religion.
For instance, 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 of raising the child, and the conduct of the parties.
However, when a parent in a civil marriage converts, the question arises whether the religion of the parents or parties involved is the sole factor, or one among several, 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 to claim custody of a child and evade financial responsibilities imposed upon the husband under civil law.
It was agreed by all Muslim jurists that when a marriage is dissolved, the right to custody of an infant will be given to the mother.
This is a prerogative right of the mother, since she is naturally more tender, better qualified to cherish a child during infancy, more compassionate than the father in dealing with children and normally spends more time at home.
The mother is the one who will breastfeed the child and 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 to serve the child's best interests.
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 that the child cannot decide for himself, especially with regard to his upbringing and education.
This principle is 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 custody of her children, Section 82(2) of IFLS lists several others in the order of preference.
The section also imposes the condition that custody of such a person should not negatively affect the welfare of the child. To make sure, the syariah court is also empowered to make an order on custody.
In Islam, religion is an important criterion in determining child custody. Ibn Qudamah, a well-known Hanbali scholar of the 12th century, said 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".
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.
However, in the Hanafi and Maliki schools, that is not the only custodial requirement, opening the possibility of the non-convert parent gaining custody.
But the two schools do lay down certain restrictions. For example, the custodian should not influence the children on religious belief other than Islam.
Restrictions include a prohibition against taking the children to church, teaching them a religion other than Islam, asking them to eat pork or consume alcohol.
Ultimately, the preservation of a child's religion should be gleaned from Maqaṣid al-Syariah, referring to the objectives of syariah in implementing laws and policies in all aspects of life, including family matters.
These consist of protecting the five essential values — religion, life, intellect, lineage and property. In the matter of child custody, Islam considers religion to be a significant determinant.
However, in a multiracial country like ours, different approaches should be taken by the authorities in handling the issue of child custody in mixed marriages.
In line with an amendment to section 51 of the Law Reform (Marriage & Divorce) Act 1976 in 2017, conflicting parties from different religions should petition for a divorce and seek remedies in the civil court, including the right to custody of the children.
A mediation committee can be set up. This would not require legal amendments as it can be made administratively.
The panel must consist of Muslim and non-Muslim parties where both can negotiate and reach an agreement that ultimately benefits the child.
The writer is associate professor and director-general, Institute of Islamic Understanding Malaysia
The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times