The Impact of Religion in Interreligious Custody Disputes: Middle Eastern and Southeast Asian Approaches

Abstract

This Article addresses the impact of religion on child custody disputes in Muslim jurisdictions and in other jurisdictions featuring a Muslim minority in the Middle East and the Southeast Asian region. More specifically, it examines the limitation of custody rights of non-Muslim mothers in interreligious custody disputes. The analysis leads to the conclusion that the custody rights of these mothers are limited in time and in substance. The Article categorizes the jurisdictions under survey according to the status of religion in their respective constitutions, and shows that the decisive explanation for the discrimination between Muslim and non-Muslim mothers lies in the narrow scope of religious freedom in the Muslim jurisdictions. As the relevant personal status laws are deeply rooted in pre-modern Islamic rules, the analysis describes the status of non-Muslim mothers in premodern Islamic literature. After the presentation of the relevant legislation and case law which is responsible for the impact of religion on custody disputes, the Article briefly explores how these issues are dealt with in two Western jurisdictions, the United States and Germany. The present Article suggests that freedom of religion be reexamined in Muslim jurisdictions and that religious education be reformed to permit more open-mindedness in order to change the perception of the best interests of the child in Muslim societies. The aim is for religious affiliation to be based on freedom of choice, thus allowing the best interests of the child to be determined without the child being understood as belonging to a certain religion, in this case Islam.