This is a study on the topic of the new trend in child custody after divorce and the strength and weaknesses of shared parenting order. I choose to compare the position in Malaysia, Australia, Singapore and United States of America.

1. The New Trend in Child
Custody after Divorce and the
Strength and Weaknesses of
Shared Parenting Order
Wan Nurul Hayyu Binti W. Mahmood
G1817684
Semester 1 2018/2019
Comparative Family Law
Prof Dr. Najibah

2. Outline of Presentation :
I. Introduction
II. United Nation Convention on Rights of the
Child (UNCRC) 1989
III.Strength of Shared Parenting
IV.Position In Malaysia
V. Position In Australia
VI.Position in Singapore
VII.Weaknesses of Shared Parenting

3. Custody
Legal Dictionary : care, possession, and control of a thing or person
Oxford Dictionary : responsibility for the care, maintenance, and upbringing of a child or
children
There is no specific and direct definition of custody in the legislation however the closest
definition was mentioned in Section 89(1) of Law Reform Act 1961 : a person who is
given custody of a child shall have the right to determine all questions relating to the
upbringing and education of the child
Shared parenting
Roslina Che Soh : a court ordered “plan” which allocates all parental rights and
responsibilities involving a minor child in a divorce, dissolution or in any action between
parents
It is a concept that, following divorce or separation, mothers and fathers should retain a
strong positive parenting role in their children’s lives, and it includes arrangements where
children spend significant amounts of their time living at the home of both parents

4. United Nation Convention on Right of Child
Article 3 : Best interest of the children
In all actions concerning children, best interests of the child shall be a primary consideration.
Article 9
The right of a child separated from both parents or one of them to regularly maintain personal
relationships and direct contact with both parents, unless it is contrary to the best interests of
the child.
Article 18 : Parental responsibilities; state assistance
States Parties shall use their best efforts to ensure recognition of the principle that both parents
have common responsibilities for the upbringing and development of the child. Parents or, as
the case may be, legal guardians, have the primary responsibility for the upbringing and
development of the child. The best interests of the child will be their basic concern.

5. STRENGTH/ADVANTAGES OF SHARED PARENTING
 maintain regular contact with both their mother
and father. They get a clear message that both
parents love them and both parents want them.
They feel important to their family
reduced levels of conflict in shared parenting
families
a shield for children to keep a child’s self-esteem
high
power relationship remains balanced. Most of
these parents continue financial support after age
18
less likely to “burn out”

6. POSITION IN MALAYSIA
Muslim
Section 81(1) and (2) of Islamic Family Law (Federal
Territory) Act 1984
Subject to section 82, the mother shall be of all persons the
best entitled to the custody of her infant children during the
connubial relationship as well as after its dissolution unless
disqualified under Hukum Syara’
Mohamed Salleh v Azizah , their children age four to thirty
nine days are all given custody to the mother as they are in
need of mother’s love and affection and there is no reason
that this right should be deprived.

7. Non-Muslim
Section 5 of Guardianship of Infant Act (Amendment) 1999
 a mother shall have the same rights and authority as the law allows to a father, and
the rights and authority of mother and father shall be equal
Section 88(2) of Law Reform Act 1976
 In deciding in whose custody a child should be placed the paramount consideration
shall be the welfare of the child and subject to this the court shall have regard— (a)
to the wishes of the parents of the child; and (b) to the wishes of the child, where he
or she is of an age to express an independent opinion.
 it is for the good of a child below the age of seven years to be with his or her mother
 Re Orr : a father and mother living apart and each claiming the custody of a child,
the general rule is that the mother, other things being equal, is entitled to the
custody and care of a child during what is called the period of nurture, namely, until
it attains about seven years of age, the time during which it needs the care of the
mother more than that of the father

8. Practice of Courts in Malaysia
Although there is no specific provision on the concept of shared parenting,
the court had always considered the best interest of the child.
Foo Kok Soon v Leony Rosalina, the court ordered the custody, care and
control were given to the father and unlimited access to the mother. The
reasons for such variation were because the father refused to comply with
the order that requires the children to be registered in a school in Perth
Australia, the place where the mother resided and the parents live
separately in two different countries. The decision of the court proves that
shared physical custody or parenting is not appropriate in cases where the
parents are living separately in two different countries.

9. Karen Cheong Yuen Yee v Phua Cheng Chuen [2004] 7 CLJ
102
the court allowed the application of the father for joint
custody of his three children in order for him to be actively
engage in decision making process that involved the
children’s education, health and other matters related to their
upbringing. In this case, the court viewed joint custody as
appropriate since both parents lived closely with each other
and there is no proven evidence of violence, harassment or
cruelty inflicted by the father on the mother. Thus, both
parents have equal rights to have the daily care, control and
responsibility to make decision about the future upbringing of
the children

10. Position in Australia
In Australia, around 42% of first marriages and 50% of second marriages end in divorce.
The wording of law provision in Australia does not specifically mentioned the term
shared parenting however there is a presumption of shared responsibility enumerated
in their legislation. As in their primary Family Law Act mentioned;
Section 60B of Family Law Amendment (Shared Parental Responsibility) Act 2006
(2)(a) children have the right to know and be cared for by both their parents, regardless
of whether their parents are married, separated, have never married or have never
lived together; and (b) children have a right to spend time on a regular basis with, and
communicate on a regular basis with, both their parents and other people significant to
their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and
development of their children; and (d) parents should agree about the future parenting
of their children; and (e) children have a right to enjoy their culture (including the right
to enjoy that culture with other people who share that culture).

11. 60CA Child’s best interests paramount consideration in making a
parenting order
In deciding whether to make a particular parenting order in relation to a
child, a court must regard the best interests of the child as the
paramount consideration.
60CC How a court determines what is in a child’s best interests
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with
both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm
from being subjected to, or exposed to, abuse, neglect or family
violence.

12. 61DA Presumption of joint parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a
presumption that it is in the best interests of the child for the child’s parents to have
parental responsibility for the child jointly.
Note: The presumption provided for in this subsection is a presumption that relates
solely to the allocation of parental responsibility for a child as defined in section 61B. It
does not provide for a presumption about the amount of time the child spends with each
of the parents (this issue is dealt with in section 65DAA). Joint parental responsibility does
not involve or imply the child spending an equal amount of time, or a substantial amount
of time, with each parent
(2) The presumption does not apply if there are reasonable grounds to believe that a
parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the
parent’s family (or that person’s family); or (b) family violence.
(3) The presumption does not apply if: (a) the court is making a parenting order that is an
interim order; and (b) the court considers that it is not appropriate to apply the
presumption in making that interim order.

13. In addition, in making parental order, the court will also have to consider
the amount of time spends.
Section 65DDA(1) of Family Law Act 1965
Subject to subsection (6), if a parenting order provides (or is to provide)
that a child’s parents are to have equal shared parental responsibility for
the child, the court must:
(a) consider whether the child spending equal time with each of the
parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the
parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision
in the order) for the child to spend equal time with each of the parents

14. In Waring & Boswell, the court granted equal shared responsibility to the
parents and considered that the spending of equal amount of time with
the each parent is reasonably practical and could serve the child’s best
interests, because the father lived in reasonable proximity with the mother
who had cared for the child since the parents’ separation.
Meanwhile Goode v Goode provides a detailed discussion on the process
of the application of the presumption and considers that the
determination of the equal amount of time that the child must spend with
each parent is necessarily limited to cases where the parents must
reasonably live in proximity or has the capacity to implement the
arrangements under consideration or having the current and future
capacity to communicate and resolve difficulties. The court may still make
the order in spite of the absence of the above conditions if such
arrangements can promote the child’s best interests

15. POSITION IN SINGAPORE
Section 46 of Women’s Charter
(1) Upon the solemnization of marriage, the husband and the wife shall be mutually
bound to co-operate with each other in safeguarding the interests of the union and in
caring and providing for the children.
Section 125 of Women’s Charter
(1) The court may at any time by order place a child in the custody, or in the care and
control, of the child’s father or mother or (where there are exceptional
circumstances making it undesirable that the child be entrusted to either parent)
of any other relative of the child or of any organisation or association the objects
of which include child welfare, or of any other suitable person.
There are four types of custody that the court may grant to parents ; sole custody,
joint custody, hybrid custody and split custody.

16. (i) Custody : parent whom given custody shall have the right to decide on
matters of decision making, responsibility over the upbringing, education, health
and religion of the child. As in the case of CX v CY [2005] 3 SLR 690, the Court of
Appeal emphasised that parenthood is a lifelong responsibility either with or
without hostile feeling between the parents.
(ii) Care and control : this parent shall have the right to live with and take care
of the child in day-to-day matters concerning their upbringing and welfare.
This right naturally arise to the parents whom the child lives. Normally care
and control is awarded to mothers in most cases.
The crux of a shared care and control order is that the child would spend
approximately equal amounts of time (including overnight) with each parent.
AHJ v AHK [2010] SGHC 148 : the Court ordered that the child would spend
Saturdays 8 pm to Wednesday 11:30 am with the mother, and the rest of the
week with the father.
AKF v AKG [2010] SGHC 225 : court held that the children would spend alternate
fortnights with each parent.

17. However, the case of AQL v AQM [2011] SGHC 264, the High
Court came to a conclusion that shared care and control was
not suitable due to the child being of tender age and the fact
that parties had a stark contrast in parenting styles. The court
further elaborated that a considerable amount of stress would
be placed on the child in order for him to toggle between the
different expectations of each parent and that such stress
cannot be beneficial for his development
ZO v ZP [2009] SGDC 33 : that shared care and control may
potentially be too disruptive to the daily living regime of the
child, especially when the relationship between the parties
are acrimonious and fractured. This is especially true for older
school-going children where they need to have a regime and
system in place.

18. POSITION IN UNITED STATES
Custody of children is decided according to the States than federal government.
All states use a “best interest of the child” standard in disputed custody cases. This is a
rather amorphous standard, and one that lends itself to judges’ subjective beliefs
about what’s best for children
Justice Stewart in Jacobellis v. Ohio 378 U.S. 184 (1964), “I know when I see it” in
deciding what is considered as best interest of the children and it is still relevant until
now
In Kentucky, they require a presumption of equally shared parenting in child custody
cases unless the case involve with an incident of domestic violence within the
preceding three years or where there has been a domestic violence order entered or
being entered
five categories : joint legal custody, sole custody, split custody, third party custody
and joint physical custody
principles for deciding child custody in connection with divorce also apply to deciding
custody of children who were born out of wedlock

19. (i) Joint Legal Custody
Parent with this custody shall have the right to decide the place of residence or
domicile of the children. This also involve with the right to live with and care of
the children. The parents jointly decide how to raise their children in matters
of schooling, spirituality, social events, sports religion, medical concerns, and
other important decisions.
(ii) Joint Physical Custody
 As for California, they define this custody as each of the parents shall have
significant periods of physical custody. Joint physical custody shall be shared
by the parents in such a way so as to assure a child of frequent and
continuing contact with both parents & the amount of time the child spend
with each parent. The time might be equal, but it does not have to be
equal.
 What is considered as equal has not been specified but in Nevada, the
Supreme Court has defined joint physical custody as an arrangement where
each parent has at least 40% of the custodial time on a yearly basis.

20. WEAKNESS/DISADVANTAGES OF SHARED PARENTING
 hostile feeling towards each other which will make shared parenting become
worse than parental rights. This will exposed the child to the parent’s conflict
which later caused domestic violence
Sivajothi K. Suppiah v Kunathasan Chelliah [2000] 3 CLJ 175, the court held that
order of shared parenting was inappropriate since there was a history of
persistence violence between the parents which subsequently led to infliction of
injuries to the other party.
conversion to other religion.
Indira Gandhi A/P Mutho v Pengarah Jabatan Agama Islam Perak and 2
Others, and 2 Other Appeals [2018] MYFC 3, where Muslim convert Muhammad
Riduan Abdullah converted the three children from his civil marriage with Perak-
based Hindu mother M. Indira Gandhi to Islam without their knowledge or
consent in 2009, before he went to the Shariah courts to obtain custody over
them

21. Federal Constitution's Article 12(4) which says a 'parent or guardian' shall decide
the religion of a person under the age of 18 for matters such as religious instruction,
the English version of 'parent' prevails over the Bahasa Malaysia translation of 'ibu
atau bapa' (mother or father).
shared parenting may limit a parent’s mobility. Parents who are serious about co-
parenting must make personal sacrifices. The parents need to decide which living
situation is best for the child. That parent will be responsible for the child’s day-to-
day care.
Inexperience parent
Quantity is not a substitute for quality

22. “Co-parenting is not a competition
between two homes but it’s a
collaboration of parents to do
what is best for the kids”
THANK YOU !