Visitation Rights under Family Law: Do Children Have a Right of

Refusal?

Daleleer Kaur Randawar, Sheela Jayabalan, Faridah Hussain

Faculty of Law, Universiti Teknologi MARA (UiTM) Shah Alam, Selangor Darul Ehsan, Malaysia.

Keywords: Children, family, refusal, right, visitation.

Abstract: Parenting role is a long continuous process wherein a strong initial bond between parents and their children

is important for the nurturance and development of the child. Children development and achievement is

usually related to positive parental involvement. However, when parents are divorced, this parenting role is

divided. During divorce, the welfare and interest of a child is always considered as the important element in

deciding the dispute of custody and visitation of the child. A mother is usually considered as the preferred

custodial parent when the child is of a tender age. The court in deciding the dispute of child custody will look

at several factors before granting the custody to a parent. Wishes of a child will be considered in deciding the

issue of custody and visitation once the child attains/reaches a discernible age. When both parents are mentally

sound, capable and interested in caring for the child, the courts recognize that it is important for the child to

have a connection with each parent. However, sometimes a child show unwillingness and loathe against a

parent and would rather not visit his or her other parent. This article will critically analyse the statutory

provisions that govern custody and right of visitation of children in Malaysia generally and in particular to

determine a right of child in refusing visitation orders against his or her other parent. The research

methodologies applied in this article will be the analysis of primary and secondary materials. Article also

includes a comparative methodology by analysing cases and the rights of children under the Convention on

the Rights of the Child 1989 (CRC). Several cases, statutory provisions and other legal and non-legal literature

is studied to see to what extent a child’s right of refusal to visit his or her other parent is considered by court.

This article proves that welfare of a child is always focused as the paramount consideration in deciding

disputes relating to custody.

1 INTRODUCTION

Parenting role is a long continuous process wherein a

strong initial bond between parents and their children

is important for the nurturance and development of

the child. Hence, every married parent are

automatically joint guardians of their children. No

separation or divorce can deny a parent’s right over

the children. It is important to remember that a

divorce process itself will have a large impact on the

children. Children may not be able to accept the

practical and logistical challenges that occurs during

a divorce. Research by Odenweller (2014) showed

that parents are not the only ones affected during their

divorce, it spreads through the entire family; the

findings of the research showed that all ten of the

students whom have divorced parents reported having

trouble with their academics, because of their parents’

conflicts.

Things are worsening when child is separated

from a parent or asked to make a choice of parent that

the child would like to stay with. Jackson (1994)

agreed the toll that a legal visitation battle takes on a

child is alarming. Children at some point in time will

resent the visitation schedule and refuse to go see the

other parent. Court usually does not refuse visitation

unless there is risk of physical or mental harm to the

child. According to Tanase (2011) dispute over

visitation is a right of the parent or a right of the child

is remnant from the period when parents exercised

strong control over their children in the name of

parental rights, with some arguing that such a

viewpoint is unsuitable for the modern idea of the best

interest of the child, and others, particularly in the

United States, arguing against the socialist notion that

children were raised by the society as a whole.

In divorce cases, parents who are denied child

custody in court are often granted generous visitation

268

Randawar, D., Jayabalan, S. and Hussain, F.

Visitation Rights under Family Law: Do Children Have a Right of Refusal?.

DOI: 10.5220/0010053302680274

In Proceedings of the Inter national Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 268-274

ISBN: 978-989-758-482-4

rights. Courts usually supports the involvement of

both parents when determining the issue of custody

and visitation of a child. Chapman (2017) opined that

raising children should be a joint venture that requires

communication, understanding, love and a

willingness to compromise. For both parents and

children, visitation is critical to maintaining a sense

of connectedness during and after a divorce. Suzana,

Roslina and Najibah (2017) discussed the current

position of shared parenting after marital separation

in Malaysia with a brief comparative review of

Australian law and policies which are more advanced

on the subject of shared parenting. Johnston (2005) in

discussing Parental Alienation Syndrome (PAS)

explained that what helps is early prevention of

alienation, a good assessment of the multiple factors

that contribute to alienation within the child and

family, clear court orders that affirm parental rights

and restore an appropriate access plan (one that the

child can tolerate); ongoing case management and

family-focused therapy (not just parent-child

reunification).

Articles above showed the vital role of both

parents in every children welfare and upbringing even

if they are divorced or separated. Hence, this paper

seeks to fill the gap and critically analyse to what

extend the right of child in refusing visitation orders

against his or her other parent will be considered by

the court.

2 METHOD

This is a qualitative research on visitation rights of

children under Family law. A library research method

is used to examine the concept of visitation rights of

children under civil Family Law. This included

legislation in Malaysia as well as a comparative

methodology by analysing the rights of children

under the Convention on the Rights of the Child 1989

(CRC) and cases that provides some form of viability

and practicality in dealing with refusal of a child’s

right to visitation.

Literature in the form of books, journal articles,

procedures/guidelines and relevant websites are used

to provide insights and information relating to the

study. The related provisions as stated in the Law

Reform (Marriage and Divorce) Act 1976 (Act 164)

(LRA) is analysed to highlight the current legal

mechanism in dealing with the right of a child to

refuse visitation by a parent. Valid sources from the

internet are also referred to in keeping up with the

latest development of the matter. By analysing court

decisions, it will provide a comprehensive indication

of the decision-making process as case studies are

usually problem and solution-centric.

3 PRACTICE IN MALAYSIA

In general, Malaysia practices two separate legal

systems in matters concerning family issues. Family

law relating to non-Muslims is governed separately

from family law relating to Muslims. Family matters

relating to non-Muslims are governed under the civil

jurisdiction whereas family matters relating to

Muslims are governed under the Syariah jurisdiction.

Family matters pertaining to non-Muslims in

Malaysia is governed by the Law Reform (Marriage

& Divorce) Act 1976 (hereinafter referred as LRA

1976). The objective of the LRA 1976 is to regulate

marriage and divorce.

Under the LRA 1976 issue pertaining to

protection of children has been broadly dealt with

under Part V111. The court under section 88(1) of the

LRA 1976 may at any time by order place a child in

the custody of his or her father or his or her mother,

and under exceptional circumstances to any other

relative of the child. In deciding in whose custody, a

child should be placed, section 88(2) of the LRA 1976

states that 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

With regards to right of access, under section

89(2)(c) the court may provide for the child to visit a

parent deprived of custody or any member of the

family of a parent who is dead or has been deprived

of custody at such times and for such periods as the

court may consider reasonable. Likewise, under

section 89(2)(d) LRA 1976, the court may give a

parent or any member of the family of a parent the

right of access to the child at such times and with such

frequency as the court may consider reasonable.

It is seen that the court when making custody and

right of access takes into consideration the welfare of

the child. According to Carbone (2014) although the

best interest standard is centuries old, its meaning has

never been fixed; instead, courts often invoke the

standard to justify a decision made for other reasons.

Generally, right of access or visitation is awarded to

the non-custodial parent, as this is a parental right

which is necessary to both the parent. Only in

exceptional circumstances will a non-custodial parent

be denied the right of access or visitation.

In the case of Renuka a/p Muniandy @

Ramakrishnan v Jeeva a/l Kalia Perumal [2017]

Visitation Rights under Family Law: Do Children Have a Right of Refusal?

269

MLJU 411 a divorce petition was filed by the wife

against the husband. There were four children out of

the marriage aged 18, 15, 8 and 7 years. The

guardianship, full custody, control and care of the

children were given to the wife and reasonable and/or

supervised access was given to the husband.

However, disputes arose between parties with

regards to access of the husband. The wife agreed that

the husband be given reasonable and/or supervised

access not amounting to overnight access. The wife

further seeks for an order that the husband be

prohibited and restrained from making any form of

personal contact with the wife and the children other

than in the presence and/or plain view of an

enforcement officer or such other person as may be

specified by the court and that the husband shall only

be allowed to make such personal contacts in places

as may be specified by the court.

The husband however seeks liberal access to the

children whenever he can visit them in Malaysia (if

he is working in Indonesia) or if he is working in

Malaysia then regular access and the right to take

them back to stay with him for ½ of all school

holidays each year. The husband further prays for an

order that he be given liberal telephone contact with

the children so that he can call them often and check

on their progress regularly due to the nature of his

work.

The children were personally interviewed by the

judge and it was seen that there was a lot of anger and

hatred in the said children against their father and

these emotions were further witnessed in court when

the 1st child testified in court against the father. The

1st child said that the father’s act of violence towards

his family and his alcohol habits were unforgivable.

As a result of the father’s conduct towards his family,

the said children do not wish to see or have any

contact with the father. Throughout the interview as

well as the trial process, the said children insisted on

not meeting their father and wished that the court did

not make an order for such purpose.

The court’s paramount consideration in the case

of Renuka a/p Muniandy @ Ramakrishnan is the

welfare of the said children, and the wishes of the

parents and the said children. Although it appears that

the wife and the said children were living happily

without the husband/father, the undeniable fact

remains that he is the father of the said children and

he wants to be given reasonable access to the said

children. To deny the father access completely would

not be just since the father wants to meet the said

children badly. It must be borne in mind that the

father is also required to maintain the said children.

However, the court was of the view that the father

should not be given frequent reasonable access as in

most normal cases. In view of the past incidents and

how it had impacted the said children which resulted

in the children’s refusal to meet the father, having

regard also to the fact that the father is to maintain the

said children until the completion of their tertiary

education in the event they manage to pursue their

tertiary education, the court opined that a supervised

access is necessary. When the father is back in

Malaysia from his work in Indonesia and/or any other

foreign countries, the father be given supervised

access on a Saturday for 3 hours; or if and when the

father is working in Malaysia, the father be given

supervised access on alternate Saturdays for 3 hours.

The court further ordered that such access to be

given to the father as stated above shall be further

subject to the wishes of the said child following the

principle in the case of Leong Sam Moy v. Low Chee

Tiam (1997) 2 CLJ Supp 212, where it was held that

access is the basic right of the child rather than that of

the parents. The court also added that it is now the

responsibility of the wife, as the mother, to prepare

the child mentally and emotionally, so that the said

children will be more willing and comfortable to see

their father. It is also the responsibility of the husband

to be patient and try his utmost to make up for the past

misdeeds, and to win the said children’s respect and

trust, and ultimately the children’s love. The father

should not force access on the child if the child is not

ready or willing yet.

In the case of Aravindraj a/l Chandrasekaran v

Renu Kumari Rai (2015) MLJU 101, the husband is a

Malaysian citizen and the wife is an Indian citizen and

currently unemployed. There were two young

children, a son 7 year in age and a daughter 5 year in

age. At the trial of the divorce petition on 10 March

2014, the wife was absent, and the court proceeded

ex-parte, in which the court in the decree nisi allowed

the husband custody of the children and access was

given to the wife.

The wife, in varying the order contended that both

young children required their mother’s love and care

which was denied to them by the decree nisi. The

children were placed under the care of their paternal

grandparents because the father was mostly at work.

The grandfather is a government pensioner and the

grandmother is a housewife. In addition, the mother

alleged that her daughter was sexually abused by the

members of the husband’s family and accordingly the

mother wished to bring both children back with her to

India with access given to the father. The husband

denied the allegations of the wife and replied that the

iN-LAC 2018 - International Law Conference 2018

270

interest of the children is best served by maintaining

the status quo as per the decree nisi ordered.

From the interview with the children, it was

unmistakably clear that the children wish to live with

the father. They were afraid of the mother who in their

view is mentally unstable because of their bad

experience from her past verbal scolding and physical

abuse by beating them. In addition, they do not want

to live in India. The elder son preferred his schooling

in Malaysia where he has fostered friendship with

many other pupils here. Furthermore, the younger

daughter denied that she was ever sexually abused or

harmed as alleged by the mother and both children are

happy living under the care of their grandparents

when the father is away at work.

The court was satisfied that the children were

candid and truthful during the interview and they

were not coached on how to answer the questions

posed. In fact, the elder son was very mature for his

age. The findings from the interview were also

consistent with reports of a psychologist and the

Social Welfare Department adduced by the husband.

Besides, the husband is gainfully employed whilst the

wife is not, and it is obvious that the husband is in the

better position to maintain and provide for the

children. In the circumstances, the court find it is in

the best interest of the children that they remain in the

continued custody of the father with limited

supervised access given to the mother as per the

decree nisi.

In Khoo Cheng Nee V Lubin Chiew Pau Sing

[1996] 4 MLJ 171 at p.183 Abdul Wahab Patail JC

“It is to the best interests of welfare of the children

that the state of feuding between the parents must

cease. There shall be no bad-mouthing of one parent

by the other to the children. There shall be no hiding

of the children from the other parent. The children's

relationship with each parent must be allowed to grow

naturally, better still fostered by one parent for the

other.” Furthermore, Moore, Ordway, and Francis

(2013) too proposed that by conducting

comprehensive assessments, developing more

effective treatment strategies, advocating for the

rights of children, and creating a specific protocol for

the multidisciplinary team, fewer families would

suffer from the long-term effects of parental

alienation.

Hence, in the above cases the relationship

between a parent and child will always be maintained.

A child should have the opportunity to spend quality

time with both their parents. It would be unfair to

sever all ties between parent and child. The court has

always applied the balance of protecting family

integrity and protection of children in such

circumstances.

4 INTERNATIONAL

PERSPECTIVE

The right of a child is a very notable issue which is

recognized globally. The Convention on the Rights of

the Child 1989 (CRC) is the first legally binding

international instrument to ensure that the world

recognizes that children have human rights. Malaysia

ratified this Convention in 1995. Article 3 stresses

that the welfare of the child must be a primary

consideration in all cases concerning children. Under

Article 9 the States Parties shall respect the right of

the child who is separated from one or both parents to

maintain personal relations and direct contact with

both parents on a regular basis, except if it is contrary

to the child's best interests.

Article 12 clearly emphasizes that the States

Parties shall assure to the child who can form his or

her own views the right to express those views freely

in all matters affecting the child, the views of the child

being given due weight in accordance with the age

and maturity of the child. For this purpose, the child

shall be provided the opportunity to be heard in any

judicial and administrative proceedings affecting the

child, either directly, or through a representative or an

appropriate body, in a manner consistent with the

procedural rules of national law. Hence, the CRC

emphasizes the right to respect the views of the child;

wherein when adults are making decisions that affect

children, children have the right to say what they

think should happen and have their opinions

considered.

In the international context, children right have

been identified and considered in court proceedings.

In the case Re T (Abduction: Child's Objections To

Return) [2000] 2 FLR 192, G, aged 11, and her

brother T, aged 6, were habitually resident in Spain

with their mother when their father wrongfully

removed them to England. The father claimed that the

mother was an alcoholic and incapable of caring for

the children. G supported this, complaining of the

mother's treatment of both children when drunk. The

Spanish court awarded custody to the mother

notwithstanding G's views, which it considered had

been heavily influenced by the father. The court

ordered the return of both children to Spain. The

father appealed, arguing that the judge had been

wrong to refuse to take account of G's objections to

returning to the mother's care. The court allowed the

Visitation Rights under Family Law: Do Children Have a Right of Refusal?

271

father's appeal and refused to order the children's

return to the mother. Court of Appeal Simon Brown,

Ward and Sedley LJJ explained at p.193:

“It was necessary to establish why the child objected

to returning to Spain, her age and degree of maturity

and, considering the strength and validity of the

child's views, whether it was appropriate to take

account of her objections. A review of the evidence

from doctors, of the child's own letters, of oral

evidence on her maturity and objections, and of

additional evidence as to her state of mind, led to the

conclusion that the child was fearful of returning due

to her mother's drink problem, that she was mature

beyond her years given the burdens that she had had

to carry and that, although coloured by her father's

hostility to her mother, her views were genuine, as

was demonstrated by the consistency of her approach

and the expressions of love for the mother contained

in correspondence. In all the circumstances the court

was compelled to take account of the child's clear and

reasoned views. In deciding whether to exercise the

discretion to refuse to order the child's return, the

spirit and purpose of the Convention also had to be

considered, but in this case did not override the

respect to be paid to the child's wishes. Regarding the

younger child, the evidence was sufficiently clear and

compelling to conclude that he would be placed in an

intolerable situation if he were to be returned to Spain

alone. The two children had been through difficult

times together; the younger child had been dependent

on his sister and she had acted as his 'little mother' at

times.”

Although the judges in the case considered the

views of the children, the court did emphasize on the

father a duty to mend the broken bridges in the family

and to have the parental bond and contact with the

children and mother continued. Ross Mackay (2005)

supports that the process of separation can take a toll

on the mental health of separating parents, which can

in turn impair the quality of parenting.

Following the case of Re W (Abduction: Child's

Objections) [2010] 2 FLR 1165, wherein the

relationship between the parents was troubled, and

marked by occasional violence and problems with

drink, for which each blamed the other. Eventually,

the mother secretly removed the three children from

the family home in Ireland and brought them to

England, without the father's consent. The father

responded by travelling to England; he remained

there for a number of months, obtaining a job and

attempting to salvage his relationship with the

mother. However, a trial period of reconciliation

ended after only a few weeks, following another

violent incident. The father then went back to Ireland

and applied for the children's return. The mother

accepted that the removal had been wrongful, but

argued that the father had acquiesced in the children

remaining in England, that there was a grave risk of

harm to the children if they were to return to Ireland,

and that it was appropriate to 'take account' of the

objections of the children, now aged 8, 6 and 3, to a

return to Ireland. The two older children spoke to the

Children and Family Court Advisory and Support

Service (CAFCASS) officer together; the officer

reported that the children had given a believable

account of violence by the father towards the mother

and towards them, and had told her that they were

frightened of the father; the children had stated

categorically that they did not want to return to

Ireland, were upset at the prospect of doing so, and

wanted, if it was necessary to return, to move to an

address far away from the father and unknown to him.

The judge found that there was no acquiescence, but

that the children had strong objections to a return and

that the older two children were not too young to have

their views considered. Judge concluded that she

should exercise her discretion not to return the two

older children, and that, therefore, as the youngest

child would be placed in an intolerable position if he

were returned alone, none of children should be

returned. The father sought leave to appeal, arguing

that the views of the 6-year-old child should not have

been considered, that the evidence of the children's

objections was in any event too thin, and that the

judge had failed to refer to various relevant factors at

the discretionary stage of her judgment. The court

refused the leave to appeal. The children objected to

a return to Ireland and it was appropriate to take

account of their views.

In Re R (Child Abduction: Acquiescence) [1995]

1 FLR 716, 734, Millett LJ at p. 734 said, 'It is to be

observed that, if a child is not of an age and degree of

maturity which makes it appropriate to take his views

into account, he must be returned despite his

objections and without any further inquiry whether

his return is in his best interests. If, on the other hand,

he is of sufficient age and maturity for his views to be

taken into account, the Convention clearly envisages

that he will not be returned against his wishes, unless

there are countervailing factors which require his

wishes to be overridden.'

In B v K (Child Abduction) [1993] 1 FCR 382,

decided by Johnson J in October 1991, three children

were removed from Germany. The judge held that a

girl nearly 9 and a boy aged 7 had attained an age and

a degree of maturity at which it was appropriate for

him to take account of their views. As for the

youngest child, the court accepted the oral report from

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272

the court welfare officer that the youngest child

would be devastated to be separated from the two

elder children and would be exposed to psychological

harm and would be placed in an intolerable situation

if he were returned to Germany and the elder two

children were not. Thus, the court concluded that the

youngest child shall not be returned to Germany.

The Ontario Court v M and M (Abduction:

Children's Objections) [1997] 1 FLR 475, Hollis J),

the judge was satisfied that he should take into

account the objections of a girl not quite 10 years old

to returning to Ontario. He held at 485 that: 'In the

absence of any medical evidence I do not think it right

to find a grave risk of exposing the children to

psychological harm by returning them, despite the

persuasive comments of the senior court welfare

officer, but I do find a grave risk if returned of placing

[the elder girl] in an intolerable situation

5 RESEARCH OUTCOMES

In most of the cases above, the wishes of the children

and views were considered by the courts in terms of

their right to refuse to return to the parent. Moreover,

courts are also more inclined to keep the children

united and together. In the international context,

refusal of a child with regards to visitation rights is

not only viewed considering the level of maturity of

the child that should commensurate with her

chronological age but further authenticated with the

court welfare officer's views. In Re T (Abduction:

Child's Objections To Return) [2000] 2 FLR 192 at p.

205, a clinical report of the child was done to evaluate

her psychological state to see if the separation of the

parents could have affected the child; as such the

child was subjected to a personality test and interview

and it was concluded that the girl was intelligent,

adaptable and able to cope with the problems between

her parents. The child was also subjected to see a

psychologist, social worker, medical doctor and

headmaster of the school in order to decide what was

best for the child’s welfare and future [Re T

(Abduction: Child's Objections To Return) [2000] 2

FLR 192 at p. 223]. Hence, it is observed that the

court requires extensive evidence to corroborate the

child’s wishes to deny a parent its visitation rights.

Moreover, in Re W (Abduction: Child's

Objections) [2010] 2 FLR 1165 at p. 1169, the court

depended upon the evidence of a Cafcass officer who

had interviewed the children together prior to the

hearing. One of the important factors that the court

considered in Re W (Abduction: Child's Objections)

[2010] 2 FLR 1165 at p. 1172 was the fact that the

family had been settling into life in London for nine

months and the father had at all material times known

of their whereabouts in London.

In Malaysia and in the international context, the

courts emphasise on the best interest of the child and

focuses on a mechanism for resolving the tension

between the parent and the child. The court stressed

to safeguard the reciprocal interests of parents and

children in preserving their relationships. In

preserving the relationship, each parent is required to

play a crucial role to mend his or her relationship that

took a negative turn.

Thus, a thorough investigation of the facts

surrounding the child's living situation, reports form

relevant stakeholder is used as a useful evidence to

decide on the right of the child to refuse visitation

against a parent. The court will refer to all relevant

factors at the discretion stage to determine the best

wishes of the child.

6 CONCLUSIONS

In most cases, wishes of the child will always be

considered in determining the refusal of visitation

rights. Parents who have been denied visitation may

have the opportunity to later have their visitation

rights restored. In some cases, the court will spell out

an action plan that includes taking parenting classes

or other steps toward restoration. As such, judges will

only permit the restriction or denial of visitation

rights for limited circumstances. It is in the children's

best interests for parents to work together to develop

a workable visitation schedule.

ACKNOWLEDGEMENTS

This work was supported and funded by Faculty of

Law, Universiti Teknologi MARA (UiTM) Shah

Alam, Selangor Darul Ehsan.

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