Religion as a Determinant of Child Welfare in Custody Cases in Malaysia and Classical Islamic Law: A Comparative Overview

Abstract

It is paramount to consider the welfare of a child when determining the custody of a child. However, in the event of a parent’s conversion to Islam, the issue of religion also arises, i.e. whether the religion of a parent is considered the main factor or one of several factors in determining the interests of the child. In Malaysia, since both Islamic and civil law recognise conversion as grounds for divorce, the question concerning the custody of children and the determinants of religion for the best interest of children will be the main issue. This research aims to examine the significance of religion in determining the welfare of children in custodial dispute cases and to search for possible solutions from the perspective of Islamic jurisprudence relating to custodial conflict upon conversion of one spouse to another religion, particularly in a multiracial country like Malaysia. Our findings show that religion is the primary criterion in determining the welfare of children in custody cases from the classical Islamic point of view. However, Islamic law also offers various other solutions if there is a conflict involving non-Muslim parents.