Have Child Custody and Right of Access been Overlooked under the Domestic Violence Act 1994 in Malaysia?

Daleleer Kaur Randawar

Abstract


The family can be considered as a place of refuge from stress and strains of the outside world. This may be true for some but sometimes the home can also be a very dangerous and unsafe place for women and children1. Besides wife battering and abuse, child abuse also occurs within the family. A large number of children are also abused by those whom they love and trust. These abusers include a parent, a stepparent, a grandparent, a close relative regardless of their age. In Malaysia, the Domestic Violence Act 1994 (Act No. 521) was passed in early 1994 by the Malaysian Parliament to curb violence within a home.2 This Act offers battered women and children protection from the abuser in the form of protective orders and provides for compensation and counseling to be made available to them.3 However, the Domestic Violence Act 1994 has failed to consider an important aspect pertaining to children i.e. that of child custody and right of access or visitation. This is important as some abusive husbands exploit their right to custody of children and right of access or visitation as a way to inflict abuse and gain access to battered wives. However, what is overlooked is that the child is left in the custody of and subject to right access or visitation by the abusive parent. Many countries have addressed and included provisions pertaining these matters in their legislation dealing with domestic violence. This article will critically analyze the statutory provisions that govern custody and right of access or visitation of children in Malaysia generally and in particular to determine whether custody and access or visitation orders should be made with a view to protect the children from the abusive parent(s). In addition, this article will also suggest legislative reforms. The research methodologies applied in this article will be the analysis of primary and secondary materials and will also involve a comparative study of other comparable jurisdictions. Thus, statutory provisions, case law and other legal and non-legal literature will be examined in this article.

DOI: 10.5901/mjss.2016.v7n5p11


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Mediterranean Journal of Social Sciences ISSN 2039-9340(Print) ISSN 2039-2117(Online)

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