Petition to Support Equal Shared Parenting as Worldwide Legal StandardWritten by: Alison Print This Article
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We’re in favor of equal time (50/50) shared parenting after the breakup of marriages and relationships unless there’s evidence to make a strong case it is not appropriate. We believe that children need both parents in their lives and that laws and practices that tend to remove one parent from the picture without just cause, simply based upon gender, are immoral and against the best interests of the children.
While in many Western societies the gender bias is against fathers, in other societies it is against mothers. We believe that neither is appropriate to the welfare of children. As an example of common legal practice with bias against mothers, we cite Shari’a law as implemented in many Muslim nations. Below we post some excerpts of writings on Shari’a legal thinking to illustrate the point that gender bias is widespread and not always against fathers.
8.0 – Child Custody Following Divorce
Under Shari’a, a father is the natural guardian (al waley) of his children’s persons and property. Shia doctrine also gives the child’s paternal grandfather joint guardianship. According to Shari’a, a child’s paternal grandfather is his or her natural guardian after the father. Under the laws of countries such as Kuwait , guardianship passes to the next relative on the father’s side if the father and paternal grandfather are unable to act as guardian. Depending on local laws, a father may be able to transfer his power of attorney over his child to other family members. In custody abduction cases, a father brought into court may use this as a means of keeping the child in the custody of his relatives and he may claim that he lacks legal authority to return the child to its mother.
A mother generally has a right to physical, not legal, custody of her child until the child reaches the age of custodial transfer, at which time the child is returned to the physical custody of the father or the father’s family. The right to physical custody is not an absolute right in the sense that a mother or father who possesses physical custody may not prevent the other parent from seeing the child. While the parent with physical custody cannot be compelled to send the child to the other parent’s residence for visits, he or she must bring the child to a place where the other parent can see him or her. Furthermore, in order to have physical custody, a parent must fulfill certain conditions. Firstly, the father or mother seeking custody must have reached majority and must be sane. He or she must also be capable of raising the child, looking after its interests, and protecting its physical and moral interests. Aside from these basic requirements, there are specific requirements based on the parent’s gender. Since, by definition, Muslim fathers satisfy the specific requirements of a male custodian, the following discussion will address only the requirements placed on a mother.
8.1 – Requirements of a Mother Custodian
To have physical custody, most juristic schools maintain that a mother must not be married to a stranger (a non-relative) or to a relative who is not in a prohibited degree of relation to the child. The Shias, however, prohibit a mother from retaining custody if she marries any other man as long as the child’s father is alive and eligible for custody. While only the Shafii and Shia schools require a mother to be Muslim in order to have physical custody over a Muslim child born to a Muslim father, the Hanafi school considers denouncement of Islam (apostasy) a sufficient ground for denying a mother who was previously Muslim her right to custody. Jurists of the other Sunni schools generally only require that the mother raise the child in the Islamic faith. However, the Sunni schools maintain that a mother loses her right to custody if there is reason to believe that she would influence the child’s religious beliefs so as to compromise his or her Islamic upbringing. Examples of this would be the mother taking the child to church, teaching the child the articles of another religion, or performing the rites of another religion in front of him or her. Certain other requirements also must be satisfied for a mother to have custody, such as the requirement that the mother not house the child in a home where he or she is disliked.
8.2 – A Mother’s Right to Physical Custody
In recognition of an infant’s need for female care, all the juristic schools give first preference to a mother’s claim to physical custody of her young child provided that she satisfies all the requirements for a female custodian. After divorce during the period of the mother’s custody, she is generally entitled to receive custody wages from the father to help her maintain the child. However, the period of female custody ends once the child reaches a certain age of custodial transfer. The Hanbali and Shafii schools do not distinguish between girls and boys regarding the duration of female custody. The Hanbalis maintain that the female custodian should have custody from birth until the child reaches the age of seven, at which point he or she may choose between parents. The Shafiis allow female custody until the child reaches the age of discretion and may choose either parent as custodian. The Malikis rule that female custody of a boy shall last until he reaches puberty, and for a girl until she marries. Under the Hanafi school, female custody of a boy ends when he is able to feed, clothe, and cleanse himself. Most Hanafi jurists set this age of independence at seven years, although some set it at nine. Hanafi jurists differ on when a mother’s custody of her daughter ends. Most maintain that the mother’s custody ends when the girl reaches puberty, set at either nine or eleven years of age. However, others allow the mother’s custody to last until the girl reaches the age of womanhood.
The importance of the early nurturing and physical custody of the mother is emphasized and protected in many Islamic countries. Preserving the bond between mothers and their young children is so important that it may result in the children accompanying their mother to prison. In Saudi Arabia , for instance, it has been observed by the author that nearly half of the population of the Central Riyadh Woman’s Prison in 1983 consisted of children under the age of seven years. Another American mother, who was also imprisoned in the Kingdom during a divorce dispute with her Saudi husband in the early 1990s, also reported on the number of young children who accompanied their mothers into prison. One American woman told of a Saudi woman who had been imprisoned because her husband’s family accused her of infidelity when she became pregnant several months after her husband’s death. The Shari’a court would not separate a breast-feeding infant from its mother. Following the child’s birth, the mother made every effort to extend breast-feeding and would not wean the child. After two years, the court found the mother unfit on religious grounds and the child was taken from her.
Unfortunately, very few government jurisdictions have backed the concept of gender-neutral equal shared parenting in their laws. In the United States, Idaho passed such a law. Australia passed the Family Law Amendment (Shared Parental Responsibility) Act 2006. Minnesota is considering passing such a law. (Click here for more information.)
We’ve recently run across a petition calling for worldwide action to make equal shared parenting the preferred law in the international community and think it deserves your support.
Kids NEED Equal doses of Mum, Dad and all 4 Grands
My petition asks Family Law makers World-Wide to endorse Preferencial Equal Shared Parenting as the benchmark in World-Wide Family Law and Social Policy. Giving Children their biological Family from conception. Reinforcing the need for Children to be brought up under the influence of their whole family.
Children know and have regular rewarding contact with their whole biological Family from conception whether the Family resides together or not.
WHO WE NEED TO INFLUENCE
The petition needs to influence the Law makers of ALL countries.
HOW LONG WILL WE CAMPAIGN