PETALING JAYA: Man and (ex-)wife go to court. They battle it out in a divorce or custody case.
It leads to parental alienation, the act of manipulating a child to reject one parent, even lying about the other party.
This is a scene commonly played out in divorce and custody battles but the law remains silent on parental alienation.
Currently, there are no laws on parental alienation and it is not “illegal”, said Bar Council family law committee co-chairman Honey Tan.
But she also said it shouldn’t be defined as a crime.
“Perhaps what is needed is a compulsory short course for parents to attend immediately after their divorce to learn parenting skills and the adverse impact of parental alienation on their children,” Tan said when contacted.
Some parental alienation cases can take an extreme turn, such as the case of Cheng Chau Yang and her eight-year-old son, both Malaysians, who have been barred from leaving China.
It was reported that Cheng’s former husband, a Chinese national, had allegedly abducted the boy before she reunited with her son there. But now, both are stuck in China following a Shanghai court order on the travel ban requested by the man.
On another disturbing note, Tan said that incidents of children being coached to falsely accuse the alienated parent of abuse, including sexual abuse, occur quite regularly.
“But if the accusations are not proven, the court will not take that into account. The court will not look favourably on the party making false allegations,” she added.
In such cases, she said it was best to apply to cross-examine the party making the accusations and the experts examining the children.
“Then, the judges will decide whether there was actual sexual abuse,” Tan said.
Lawyer Datuk Andy Low Hann Yong, whose firm handles many divorce cases, said some parents blatantly ignore the court order allowing the alienated parent to see their children.
“They believe they can get away with it as there’s no enforcement body to assist the non-custodian parent when that access is denied, he said.
But Low said in extreme cases, a court order to take away custody from the alienating parent can be issued.
“So don’t take parental alienation lightly. Once children have been completely brainwashed, it’s difficult to undo,” he added.
Section 88 (3) of the Law Reform (Marriage and Divorce) Act presumes that it’s for the good of a child aged below seven to be with the mother, but this may be rebutted if the father can show that the child’s welfare would be best under his custody.
“For example, evidence can be brought to show that the mother is an unfit parent who frequently abuses the children or has expressly disclaimed her interest in caring for them,” he said.
Calling parental alienation a grey area, family law practitioner Amsa Naidu said at times, there was merit to one party’s allegations, especially if one parent was abusive.
“Lawyers can appeal to the judge to refer the child to a psychologist to see if the child has been coached to say certain things or emotionally conditioned to side one parent.
“However, it can take up to a year before the child can see a psychologist from the public sector,” said Amsa, adding that while private psychologists can be engaged, their reports are often challenged in court.
To reduce chances of an unfair outcome due to parental alienation, she proposed that more child psychologists be made available to expedite the consultation process.
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