LANDMARK FATWA FROM DR ASRI: ‘Custody goes to the better parent’

PETALING JAYA - The Perlis Fatwa Committee has issued an edict which states that the custody of a child be given to the more suitable parent, regardless of religion.

State mufti Datuk Dr Mohd Asri Zainul Abidin said the committee found it unfair to determine custody of a child based solely on the parents’ religion, as the overall welfare and interests of the child were paramount.

He said the edict could signal a turning point in the way child custody cases were deliberated at the Syariah courts, especially in cases where a parent sought custody of the child upon converting to Islam.

“The overall welfare of the child includes his or her physical, moral and emotional needs. The parent who is more able to provide these needs should get custody, whether they are Muslim or not,” Dr Mohd Asri told The Star.

He said the courts needed to judge which parent was more suitable by studying their background and lifestyle, as well as taking into consideration the choice of the child.

“If both parents are equally suitable to care for the child, then the child has the right to choose which parent he or she wants to live with.

“This is provided the child is old enough to decide,” he said.

Under the ruling, it will still be compulsory for the Muslim parent to introduce Islam to the child, whether they have custody or not.

However, Dr Mohd Asri said religion should not be forced upon them.

The fatwa committee has also ruled that custody should automatically be granted to the mother if she is still breastfeeding the child.

“If the child is no longer breastfeeding and hasn’t reached maturity, then custody should be given to the more suitable parent or the one the child is closer to,” he said.

The latest edict, he said, was a change from current practice in the Syariah court, where religion was a dominant factor in deciding a custody dispute.

“The common case these days is that both parents are non-Muslims, and then one of them converts to Islam. If going by the Syariah court, then custody is unquestionably given to the Muslim parent.

“This is actually not right, as there is no basis for that sort of ruling, whether in the Quran or hadith,” he said, adding that the fatwa committee would propose that the edict be adopted as a guideline by Syariah judges when evaluating such cases.

The edict, which was passed by the state Islamic religious council recently, is also a general guide for Muslim parents, who often feel guilty for giving up custody to a non-Muslim spouse.

“We released this fatwa to let them know that it is not a sin to offer custody to a non-Muslim parent, especially if that person is better equipped to care for the child,” added Dr Mohd Asri. - ANN