Custody , Care & Control can often be a contested issue at the Syariah Court.
First, let us start with some basic definitions.
Anthony Dickey in Family Law (LBC Information Services, 3rd Ed, 1997) at pp 326–327 says that “……. care and control concerns the right to take care of a child and to make day-to-day, short-term decisions concerning the child’s upbringing and welfare. Custody without care and control (that is, custody in its narrow sense) concerns the right to make the more important, longer-term decisions concerning the upbringing and welfare of a child.”
It is important to understand this. Many parents approach us asking for custody for their children sometimes without realising what it entails. Sometimes, one might seek for a sole custody order when they dislike their soon to be ex-spouses. However the court will normally and generally award a joint custody order. The idea is to encourage co-parenting. It is to allow both parents to come together to make major decisions about the children’s life.
Care & Control on the other hand apart from the explanation provided above also refers to who the child will be with on a daily basis. Access orders will govern when the parent( without care & control )can visit the child. There is no formula on this. The overarching principle is that the welfare of the child is of paramount importance.
In the Syariah Courts, children above the age of 7 will be able to choose who they wish to follow i.e. which parent they wish to stay with. However , the court may go against the wishes of the child if it can be proven that the parent is not as responsible as the other parent. This could arise in a scenario where one parent is a disciplinarian and main caregiver while the other adopts a carefree and nonchalant approach.
In Islamic law, mothers will have the priority to obtain care and control for children below the age of 7. However, if it can be proven that it is better for the child to be placed in the care of the father (welfare principle), the mother may not be granted the order in favour of herself.
Lastly, there are many kinds of access orders, from supervised to reasonable with or without overnight access. It is best to stipulate the terms.
PM us for more information. This is a general guide and is not to be taken an legal advice.