Monday, February 16, 2009


Malaysia is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, nor are there any international or bilateral treaties in force between Malaysia and the United States dealing with international parental child abduction. Therefore, there is no treaty remedy by which the left behind parent would be able to pursue recovery of the children should they be abducted to or wrongfully retained in Malaysia. Once in Malaysia, the child/ren would be completely subject to Malaysian law for all matters including custody. The United States is not a party to any treaty or convention on the enforcement of court orders. A custody decree issued by a court in the U.S. has no binding legal force abroad, although it may have a persuasive force in some countries. Furthermore, a U.S. custody decree may be considered by foreign courts and authorities as evidence and, in some cases, foreign courts may voluntarily recognize and enforce it on the basis of comity (the voluntary recognition by courts of one jurisdiction of the laws and judicial decisions of another).The Malaysian legal system is based on English common law. The Federal courts have original jurisdiction in constitutional matters and in disputes between states and reviews decisions referred from the Court of Appeals. In addition to high courts, the Peninsular Malaysian states and the East Malaysian States of Sabah and Sarawak have magistrate courts, session courts, and juvenile courts. These courts would have jurisdiction on civil law cases, including child custody disputes among Malays or other Muslims/indigenous peoples.By Constitutional definition, all Malays are Muslim, and the "paramount ruler", customarily referred to as the "King" is also the leader of the Islamic faith in Malaysia. Malaysia's official religion is Islam and Islamic (Sharia) law applies in family and religious matter for all Muslims. Although civil law cases are adjudicated under Islamic and traditional law, certain cases involving Muslims only are heard in Sharia courts and Sharia law applies in family and religious matters. Questions on specific Islamic laws as they pertain to custody rights should be addressed to a lawyer licensed to practice in Malaysia.In order to bring a custody issue before the local court, the left-behind parent will require the assistance of an attorney licensed to practice in Malaysia. Ideally, these orders and proceedings ensure due process under the local laws as well as providing protection for the child/ren. A parent holding a custody decree issued in U.S. courts must retain local Malaysian counsel to apply to the Malaysian courts for recognition and enforcement of the U.S. decree, or to petition for custody of minors. Although visitation rights for non-custodial parents are not expressly stipulated in Malaysian Civil Code, court judgments often provide visitation rights for non-custodial parents. Since compliance with the local court rulings is essentially voluntary, Malaysian police or local law enforcement are reluctant to get involved in custody disputes and could not be counted on to enforce custody decrees issued by the Malaysian courts.


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