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AHMAD IBRAHIM KULLIYYAH OF LAWS
        International Islamic University, Malaysia



THE IMPORTANCE OF GUARDIANSHIP IN FAMILY LAW:
 {How Far is it Relevant in the Modern Society}
        A Comparative Study of Family Law


                          By:



      Abdul Azeez Maruf Olayemi
The concept of Guardianship
-    Guardianship is the position of being legally responsible for some one.
     (Macmillan Eng. Dic. P632)


-    A legal guardian is a person who has the legal authority (and the
     corresponding duty) to care for the personal and property
     interests of another person, called a ward. Usually, a person has
     the status of guardian because the ward is incapable of caring for
     his or her own interests due to infancy, incapacity, or disability.
     Most countries and states have laws that provide that the parents
     of a minor child are the legal guardians of that child, and that the
     parents can designate who shall become the child's legal
     guardian in the event of their death..



•
• Bases of Guardianship in Family Law:
– Islamic Law:


–   ‘Mothers shall give suck to their offspring for the two whole years if the father desires to complete
    the term. But he shall bear the cost of their food and clothing on equitable terms. ‘ Qur’an 2: verse
    233

    ‘‘Child here is your father and here is your mother, make a choice between the two as to whom you
    prefer’ then the son took hold of his mother’s hand and they dispersed’’ Sunan Abu Daud, Kitabut-
    Talaq, (Vol. 2) 617 (Interest of The Child).

– International Law:
    CEDAW, Article 16(1)(f) states that: The same rights and responsibilities with regard to
    guardianship, warship trusteeship and adoption of children, or similar institutions where these
    concepts exist in national legislation in all cases the interest of the children shall be paramount;

– ‘Article 16 of the Universal Declaration of Human Rights’ declares that:
  "Men and women of full age, without any limitation due to race, nationality or
  religion, have the right to marry and to found a family. They are entitled to equal
  rights as to marriage, during marriage and at its dissolution.
Types of Guardianship:
1.   In term of Personality of the guardian:

     - Guardianship of the parents:

     - Guardianship of person other than the parents:

2.   In term of the duty of the guardian:

     - Guardianship on Person / Child (Al-Wilayatu ‘ala nafs):

     - Guardianship on Property (Al-Wilayatu ‘ala mal):

     - Guardian Ad Litem (Legal Representative):
Guardianship of the parents:
Islamic Law (Shari’ah)

    All the Islamic Schools of Law agree that, the father of a child is his / her natural guardian
    and that the right of custody of such child belongs to the mother base on Qur’an 2: Verse 233
    and the aforementioned Hadit /Sunan Abu Daud, Kitabu Talaq (vol. 2) 617) interalia, from
    the day of birth of the child. They, however defer on the duration of the custodian and that
    guardianship due to their disagreement of the meaning of Rushd (Majority) in Q4:V6as
    follows:
.   Hanafiyah:
                      that the custodianship of a mother ends when the child
                      attains the age of seven for males and nine for females.
.   Malikiyah:
                      that the custodianship of a mother ends when the child
                      attains the puberty (ihtilam) for males and until the marriage of a female.
.   Shafi’yahh & Hanabilah:
                   that the period for both male and female child shall end when they attain
                   the age of seven or eight.
Practice and developments in Hanafyah Jurisdiction:

Pakistan:
            .Given the interest of the minor preference:
            In the case of Atia Waris v. Sultan Ahmad Khan 1959 PLD           (WP)       Lah
            205.Mahmud J stated:

          In considering the welfare the court must presume initially that the minor’s
          welfare lies in given custody according to the dictates of the rules of personal
          law, but if circumstance clearly point that his or her welfare lies elsewhere or
          that it would be against his or her interest the court must act in
accordance with the welfare of the minor, keeping in mind any positive prohibition of the
person law.’’
          Thus, the court gave custody of the minor to the paternal grandparent instead
          of the      maternal grandparent considering the best interest of the child
          based on ijtihad.

Egypt:
            Statutes: Decree 25 of 1926 amendment Decree 100 of 1985 declares in the
            article 20 that: the right of a mother to the custody of her child shall end when
            the child attains ten years old for male and twelve years for female and that a
            Court may decide otherwise due to the best interest of the child.
Practices and developments in Malikiyah Jurisdiction:

-      Morocco:
       Enhancing the Protection of Children’s Rights:
       Child custody : Taking into account the child’s interests, the draft further innovates
       by giving the woman the possibility to retain custody of her child, under certain
       conditions, even upon remarrying or moving out of the area where her husband
       lives. She may also regain custody if the reason (voluntary or otherwise) which
       caused her to lose this right disappears. (Under current legislation, the woman

       irrevocably loses child custody in the above conditions)


-      Sudan:
       Child Custody and Guardianship: divorced mother has custody over boys until 7
       years and girls until 9 years; custody may be extended if proved to be in best
       interests of ward; until the male reaches puberty and the female consummates her
       marriage.. Court has some discretion to allow a woman who re-marries a man not
       within the prohibited degrees of relationship to the child (i.e., a mahram) to retain
       custody if the interests of the ward so demand. The custody of a woman of a
       different religion to the father ends when the child is five years old, or earlier in it is
       feared that the child will take another religion. Child support considered father's duty
       until girl is married and until boy is of age able to earn his own living. .
Practices and developments in Shafi’iyyah Jurisdiction:

 - Malaysia:
         LR stipulates the applicability of Shariah (Shafi’iyah) to

    Malaysian Muslims, thus father his the natural guardian of his     child.

         The Guardianship of Infants (Amendment) Act 1999 amended
         the      1961 Act to grant mothers equal guardianship rights as
         fathers.

         Can the converted father convert his children to Islam without the
         permission of the mother?

         Answer:

         Chang Ah Mee v Jabatan Hal Ehwal Agama Islam, Majlis

    Ugama Islam Sabah [2003] 5 MLJ 106
Continue…….
- Indonesia:
  . Development:
     Under Article 1 (5) of Perpu 2/2007 a     guardian is defined as a
     person or institution having the authority to act as the guardian of a
     child. Issues on guardianship within this Perpu focus on the
 management of property.

      Institution here means Baitul-Mal (Central Bank or Public Trustee)
Practice and Development in Hanabilah
                Countries
- United Arab Emirate:

  UAE Personal Law No . 28 /2005, Article
  217. stipulates that: A father may appoint
  a guardian of male or female for his
  minor child…….
Guardianship in Mula’anah Case:

-   Definition of Mula’anah:
    Mula’anah is the situation whereby a husband will deny being
    responsible for the pregnancy of his wife and the court will
    separate them and order the naming of the child after his
    mother. Qur’an 291: Verse 6 - 9


-   Guardianship in Mula’anah:
    Although the majority of scholars agree that the right of
    guardianship belongs to the father while the custodianship
    belongs to the mother. But in case of mula.a the
    guardianship and custodianship right also belongs to the
    mother.
Guardianship of Parents under Common Law:

Evolution:
  In the past, parents are considered the legitimi tutores of
  their children. Children were, from birth, subject to the
  guardianship of their father. Their father was regarded as
  their “natural guardian. By virtue of that guardianship the
  father exercised paternal power in relation to his child
  and his child’s property. The mother was excluded from
  the role of guardian while the father lived, although she
  was eligible for appointment as guardian by her husband
  after his death. Children born out of wedlock had no
  legal guardians.
Development……….
- Prior and due to the stipulation of CEDAW: Article
  16(1)(f) which states that: The same rights and
  responsibilities with regard to guardianship, warship
  trusteeship and adoption of children, or similar
  institutions where these concepts exist in national
  legislation in all cases the interest of the children shall be
  paramount;

- Thus CEDAW gives equal right to both parent in regard
  to the guardianship of their child.
Practice and Development in Common Law Countries
-   South Africa:

     NO. 192 OF 1993: GUARDIANSHIP ACT, 1993. (2) Whenever both a father and
    mother have guardianship of a minor child of their marriage, each one
    of them is competent, subject to any order of a competent court to the
    contrary. to exercise independently and without the consent of the
    other any right or power or to carry out any duty arising from such
    guardianship: Provided that, unless a competent court orders
    otherwise, the consent of both parents shall be necessary in respect
    of-

-   Scotland:
    The Children (Scotland) Act 1995, excludes the guardianship of parents from
    the definition of parental rights. A parent, therefore will no longer be the ‘’the
    natural guardian’’ of his or her child. The parental role is now defined in the
    terms of parental responsibilities and parental rights.
Cont….
- UK:

• The Children's Act 1989, Schedule 15. States that:
• A parent with parental responsibility may appoint a
  guardian. Broadly speaking, a mother has parental
  responsibility irrespective of her marital status. A father
  has automatic parental responsibility if he has been
  married to the mother at any time later than the date of
  conception. An unmarried father may acquire parental
  responsibility by court order or agreement with the Childs
  mother. An appointment may be made by Last Will or in
  writing (section 5 (5)).
Guardianship of Persons other than the parent
     Guardianship of persons other than the parents are of
     two types namely:
1.   Testamentary Guardianship – Al-Wasiyyu:
     This is the guardian the father or bother of the parent or the
     mother may appoint as part of the will for his / her child prior to
     his or her death.
2.   Legal Guardianship:
     Base on the best interest of the child, the court may
     appoint a guardian in lieu of his / her parents or if there
     is default in the guardian appointed by the parents
     prior to their death.
Testamentary Guardianship
 According to the effect of the new rule that parents are
 no longer the “natural guardians” of their children, in the
 countries where it is applied, those appointed to be
 guardians after their death will take on the role of
 substitute parents. Accordingly, a testamentary guardian
 will have the power to appoint a person to take his place
 in the event of his death and he will have the same
 parental responsibilities and parental rights in relation to
 the child as the parent had.
(CEDAW Article 16(1)(f).
Testamentary Guardianship in Islamic Law
 Shariah permitted parents to appoint a testamentary
 guardian of their choice for their wards or children this is
 contained Qur’an 2: Verse: 180 (CEDAW Article
 16(1)(f).
َ‫إ ُ نِ يَ يَيَ ارْ إ ُ ارْ نِ يَ يَ يَ يَ يَ يَ يَ إ ُ إ ُ ارْ يَ ارْ إ ُ نِ يَ يَ يَ يَ ارْ  ً ارْ يَ نِ ةَّ إ ُ نِ ارْ يَ نِ يَ ارْ نِ يَ يَ نِ يَ نِ ارْ يَ ارْ إ ُ نِ يَ ًاّ يَيَ ارْ إ ُ ةَّ نِ ي‬
‫كتب عليكم إذا حضار أحدكم الموت إ ن تارك خيارا الوصية للوالدين فوالقارْاربين بًالمعارفوف حقًا عل ى المتقين‬
                                                                                                                                                                   [180: ‫]البقارة‬
  It has been decreed that whenever you are at the verge of death you
  should appoint the best testamentary guardian from the parents and the
  relatives…………

 However, the testamentary guardian must not be a heir to the ward.
Legal Guardianship in the Common
                Law
• In the common law countries, the court has the power to
  appoint a guardian a child, base on the best interest of the
  child. Example of this is the stipulation of the Law Reform
  (Parent and Child) (Scotland) Act 1986.

• The court can only do so if it could be shown to be in the
  interests of the child that the applicant should have the custody
  of the child .

• In some countries, it is required that before being appointed a
  legal guardian, the applicant should be in a position to exercise
  all parental responsibilities and rights, including having the
  child living with him or otherwise regulating the child’s
  residence.
Duties and Responsiblities of a
                 Guardian
•    It is the duty of the guardian to safeguard the child’s:

1.   Health including given consent to surgical , medical or
     dental treatment.
2.   Educational upbringing.
3.   Welfare and development
4.   Protection and management of his property
5.   Act as the minors legal representative
Guardianship of the Child outside wedlock

•    In the case the right of custody and guardianship belongs to
     the mother solely although the putative father may also have
     the guardianship through court, if he can prove to make a
     superior arrangement for the children or by the agreement of
     the mother but this right is revocable

•    There has been development on this issue in the common
     law countries. For example, the Law Reform (Parent and
     Child) (Scotland) Act 1986, s 1, provides for legal equalities
     to children whether or not there parents are or have been
     married to each other. S.2, confers parental right (including
     the right of custody) on the mother whether or not she is or
     has been married to the child’s father and on the father if he
     is married to the child’s mother or was married to her at the
     time of the child’s conception or subsequently.
Guardianship of Child of Same-Sex Marriage
       There is fluctuation in the custody of the minor child in same
       sex-marriage:

1.     After the breakup of a same-sex civil union In 2004, a Virginia
       trial judge granted sole custody of Isabella Miller-Jenkins, to
       Lisa Miller, her biological mother, citing the Virginia law.


2.     In 2006, a Virginia appeals court reversed the trial court’s
       decision. Given the right of custody to both parents.

3.     In 2007, an appeal of the Virginia appellate decision was
       dismissed last year by the Virginia Supreme Court.
Types of Guardianship in Accordance to Duties:
•   Guardianship on person:
•   Guardianship over person simply means guardianship over a minor or
    infant (any body below the age of 18). The guardianship includes the
    moral, spiritual and educational upbringing of such infant.

•   Guardianship on Property:
•   Guardianship over property connotes the protection and management of
    the property of an infant as well as an incapacitated adult ,

•   Guardian Ad Litem:
    Guardians ad litem are often appointed in divorce cases or in parenting
    time disputes to represent the interests of the minor children. Guardians
    ad litem are also used in other family matters involving grandparents
    obtaining custody or grand parenting time as well as protection orders
    where one parent is attempting to get an order against another party with
    a legal connection to the child. The kinds of people appointed as a
    guardian ad litem vary by state, ranging from volunteers to social workers
    to regular attorneys to others with the appropriate qualifications. The two
    divorcing parents are usually responsible for paying the fees of the
    guardian ad litem, even though the guardian ad litem is not responsible to
    them at all.
Condition of a guardian or custodianship
1. Must be a Islam.
2. Mother must marry person other than
   Maharam.
3. Must be a major.
4. Must be sane.
Recent Developments in Guardianship System:

• In the modern day a lot of innovations and development has
  been brought to the guardianship system across the globe,
  some of the example of the new systems include the
  followings:
-   Conservatorship:

• A conservator is responsible for making decisions about the
  financial affairs of the ward. The court appoints the
  conservator. The ward’s financial affairs include assets—such
  as stocks, bonds, bank accounts, cash and real estate—for
  which the conservator has assumed responsibility. Generally,
  the conservator controls all of the ward’s income and property,
    takes care of paying bills, and handles other financial matters.
Continue……

-   COMMUNITY GUARDIANSHIP (AUSTRALIA):
    Many adults in Western Australia have limited capacity to
    make decisions. These may include decisions about where
    they live, who cares for them or what medical treatment is
    appropriate. Volunteers with the Public Advocate’s
    Community Guardianship Program will help some of these
    people.
Continue…….

- Standby Guardianship:
 One of the more recent approaches to transferring custody is facilitated
 through standby guardian laws. Many States developed these laws to
 address specifically the needs of families living with HIV or other
 disabling conditions and terminal illnesses who desire to plan a legally
 secure future for their children.

 Approximately 21 States and the District of Columbia have made statutory
 provisions for standby guardianships. Most standby guardian laws share
 these provisions:
Cont…
• Permanent Guardianships (UK)
• These are guardianships designed for children who
  have been in state custody and which are difficult to
  terminate. For example, Oregon has a permanent
  guardianship status that may only be granted by the
  juvenile court after it is proven that it is in the best
  interest of the child that the birth parent should never
  have physical custody of the child. A birth parent is
  prohibited from petitioning the court to terminate this
  permanent guardianship once it is granted. When
  assessing their options, caregivers should be aware of
  whether permanent guardianship exists, and how it is
  defined, in their state.
Termination of Guardianship
•  Guardianship terminates at any of this
   stages:
1. The minor attaining 18 year of age
   (majority).
2. The death of the child or guardian.
3. The termination of the appointment by
   court order.
Conclusion…
It would be observed that the scenario
nowadays is that the best interest of the
minor is given preference over any other
consideration regardless of the parents or
child’s status.
Wallahu a’alam



Thank you for the audience

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Abdul azeez maruf olayemi guadianship-comparative family law

  • 1. AHMAD IBRAHIM KULLIYYAH OF LAWS International Islamic University, Malaysia THE IMPORTANCE OF GUARDIANSHIP IN FAMILY LAW: {How Far is it Relevant in the Modern Society} A Comparative Study of Family Law By: Abdul Azeez Maruf Olayemi
  • 2. The concept of Guardianship - Guardianship is the position of being legally responsible for some one. (Macmillan Eng. Dic. P632) - A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability. Most countries and states have laws that provide that the parents of a minor child are the legal guardians of that child, and that the parents can designate who shall become the child's legal guardian in the event of their death.. •
  • 3. • Bases of Guardianship in Family Law: – Islamic Law: – ‘Mothers shall give suck to their offspring for the two whole years if the father desires to complete the term. But he shall bear the cost of their food and clothing on equitable terms. ‘ Qur’an 2: verse 233 ‘‘Child here is your father and here is your mother, make a choice between the two as to whom you prefer’ then the son took hold of his mother’s hand and they dispersed’’ Sunan Abu Daud, Kitabut- Talaq, (Vol. 2) 617 (Interest of The Child). – International Law: CEDAW, Article 16(1)(f) states that: The same rights and responsibilities with regard to guardianship, warship trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation in all cases the interest of the children shall be paramount; – ‘Article 16 of the Universal Declaration of Human Rights’ declares that: "Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
  • 4. Types of Guardianship: 1. In term of Personality of the guardian: - Guardianship of the parents: - Guardianship of person other than the parents: 2. In term of the duty of the guardian: - Guardianship on Person / Child (Al-Wilayatu ‘ala nafs): - Guardianship on Property (Al-Wilayatu ‘ala mal): - Guardian Ad Litem (Legal Representative):
  • 5. Guardianship of the parents: Islamic Law (Shari’ah) All the Islamic Schools of Law agree that, the father of a child is his / her natural guardian and that the right of custody of such child belongs to the mother base on Qur’an 2: Verse 233 and the aforementioned Hadit /Sunan Abu Daud, Kitabu Talaq (vol. 2) 617) interalia, from the day of birth of the child. They, however defer on the duration of the custodian and that guardianship due to their disagreement of the meaning of Rushd (Majority) in Q4:V6as follows: . Hanafiyah: that the custodianship of a mother ends when the child attains the age of seven for males and nine for females. . Malikiyah: that the custodianship of a mother ends when the child attains the puberty (ihtilam) for males and until the marriage of a female. . Shafi’yahh & Hanabilah: that the period for both male and female child shall end when they attain the age of seven or eight.
  • 6. Practice and developments in Hanafyah Jurisdiction: Pakistan: .Given the interest of the minor preference: In the case of Atia Waris v. Sultan Ahmad Khan 1959 PLD (WP) Lah 205.Mahmud J stated: In considering the welfare the court must presume initially that the minor’s welfare lies in given custody according to the dictates of the rules of personal law, but if circumstance clearly point that his or her welfare lies elsewhere or that it would be against his or her interest the court must act in accordance with the welfare of the minor, keeping in mind any positive prohibition of the person law.’’ Thus, the court gave custody of the minor to the paternal grandparent instead of the maternal grandparent considering the best interest of the child based on ijtihad. Egypt: Statutes: Decree 25 of 1926 amendment Decree 100 of 1985 declares in the article 20 that: the right of a mother to the custody of her child shall end when the child attains ten years old for male and twelve years for female and that a Court may decide otherwise due to the best interest of the child.
  • 7. Practices and developments in Malikiyah Jurisdiction: - Morocco: Enhancing the Protection of Children’s Rights: Child custody : Taking into account the child’s interests, the draft further innovates by giving the woman the possibility to retain custody of her child, under certain conditions, even upon remarrying or moving out of the area where her husband lives. She may also regain custody if the reason (voluntary or otherwise) which caused her to lose this right disappears. (Under current legislation, the woman irrevocably loses child custody in the above conditions) - Sudan: Child Custody and Guardianship: divorced mother has custody over boys until 7 years and girls until 9 years; custody may be extended if proved to be in best interests of ward; until the male reaches puberty and the female consummates her marriage.. Court has some discretion to allow a woman who re-marries a man not within the prohibited degrees of relationship to the child (i.e., a mahram) to retain custody if the interests of the ward so demand. The custody of a woman of a different religion to the father ends when the child is five years old, or earlier in it is feared that the child will take another religion. Child support considered father's duty until girl is married and until boy is of age able to earn his own living. .
  • 8. Practices and developments in Shafi’iyyah Jurisdiction: - Malaysia: LR stipulates the applicability of Shariah (Shafi’iyah) to Malaysian Muslims, thus father his the natural guardian of his child. The Guardianship of Infants (Amendment) Act 1999 amended the 1961 Act to grant mothers equal guardianship rights as fathers. Can the converted father convert his children to Islam without the permission of the mother? Answer: Chang Ah Mee v Jabatan Hal Ehwal Agama Islam, Majlis Ugama Islam Sabah [2003] 5 MLJ 106
  • 9. Continue……. - Indonesia: . Development: Under Article 1 (5) of Perpu 2/2007 a guardian is defined as a person or institution having the authority to act as the guardian of a child. Issues on guardianship within this Perpu focus on the management of property. Institution here means Baitul-Mal (Central Bank or Public Trustee)
  • 10. Practice and Development in Hanabilah Countries - United Arab Emirate: UAE Personal Law No . 28 /2005, Article 217. stipulates that: A father may appoint a guardian of male or female for his minor child…….
  • 11. Guardianship in Mula’anah Case: - Definition of Mula’anah: Mula’anah is the situation whereby a husband will deny being responsible for the pregnancy of his wife and the court will separate them and order the naming of the child after his mother. Qur’an 291: Verse 6 - 9 - Guardianship in Mula’anah: Although the majority of scholars agree that the right of guardianship belongs to the father while the custodianship belongs to the mother. But in case of mula.a the guardianship and custodianship right also belongs to the mother.
  • 12. Guardianship of Parents under Common Law: Evolution: In the past, parents are considered the legitimi tutores of their children. Children were, from birth, subject to the guardianship of their father. Their father was regarded as their “natural guardian. By virtue of that guardianship the father exercised paternal power in relation to his child and his child’s property. The mother was excluded from the role of guardian while the father lived, although she was eligible for appointment as guardian by her husband after his death. Children born out of wedlock had no legal guardians.
  • 13. Development………. - Prior and due to the stipulation of CEDAW: Article 16(1)(f) which states that: The same rights and responsibilities with regard to guardianship, warship trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation in all cases the interest of the children shall be paramount; - Thus CEDAW gives equal right to both parent in regard to the guardianship of their child.
  • 14. Practice and Development in Common Law Countries - South Africa: NO. 192 OF 1993: GUARDIANSHIP ACT, 1993. (2) Whenever both a father and mother have guardianship of a minor child of their marriage, each one of them is competent, subject to any order of a competent court to the contrary. to exercise independently and without the consent of the other any right or power or to carry out any duty arising from such guardianship: Provided that, unless a competent court orders otherwise, the consent of both parents shall be necessary in respect of- - Scotland: The Children (Scotland) Act 1995, excludes the guardianship of parents from the definition of parental rights. A parent, therefore will no longer be the ‘’the natural guardian’’ of his or her child. The parental role is now defined in the terms of parental responsibilities and parental rights.
  • 15. Cont…. - UK: • The Children's Act 1989, Schedule 15. States that: • A parent with parental responsibility may appoint a guardian. Broadly speaking, a mother has parental responsibility irrespective of her marital status. A father has automatic parental responsibility if he has been married to the mother at any time later than the date of conception. An unmarried father may acquire parental responsibility by court order or agreement with the Childs mother. An appointment may be made by Last Will or in writing (section 5 (5)).
  • 16. Guardianship of Persons other than the parent Guardianship of persons other than the parents are of two types namely: 1. Testamentary Guardianship – Al-Wasiyyu: This is the guardian the father or bother of the parent or the mother may appoint as part of the will for his / her child prior to his or her death. 2. Legal Guardianship: Base on the best interest of the child, the court may appoint a guardian in lieu of his / her parents or if there is default in the guardian appointed by the parents prior to their death.
  • 17. Testamentary Guardianship According to the effect of the new rule that parents are no longer the “natural guardians” of their children, in the countries where it is applied, those appointed to be guardians after their death will take on the role of substitute parents. Accordingly, a testamentary guardian will have the power to appoint a person to take his place in the event of his death and he will have the same parental responsibilities and parental rights in relation to the child as the parent had. (CEDAW Article 16(1)(f).
  • 18. Testamentary Guardianship in Islamic Law Shariah permitted parents to appoint a testamentary guardian of their choice for their wards or children this is contained Qur’an 2: Verse: 180 (CEDAW Article 16(1)(f). َ‫إ ُ نِ يَ يَيَ ارْ إ ُ ارْ نِ يَ يَ يَ يَ يَ يَ يَ إ ُ إ ُ ارْ يَ ارْ إ ُ نِ يَ يَ يَ يَ ارْ ً ارْ يَ نِ ةَّ إ ُ نِ ارْ يَ نِ يَ ارْ نِ يَ يَ نِ يَ نِ ارْ يَ ارْ إ ُ نِ يَ ًاّ يَيَ ارْ إ ُ ةَّ نِ ي‬ ‫كتب عليكم إذا حضار أحدكم الموت إ ن تارك خيارا الوصية للوالدين فوالقارْاربين بًالمعارفوف حقًا عل ى المتقين‬ [180: ‫]البقارة‬ It has been decreed that whenever you are at the verge of death you should appoint the best testamentary guardian from the parents and the relatives………… However, the testamentary guardian must not be a heir to the ward.
  • 19. Legal Guardianship in the Common Law • In the common law countries, the court has the power to appoint a guardian a child, base on the best interest of the child. Example of this is the stipulation of the Law Reform (Parent and Child) (Scotland) Act 1986. • The court can only do so if it could be shown to be in the interests of the child that the applicant should have the custody of the child . • In some countries, it is required that before being appointed a legal guardian, the applicant should be in a position to exercise all parental responsibilities and rights, including having the child living with him or otherwise regulating the child’s residence.
  • 20. Duties and Responsiblities of a Guardian • It is the duty of the guardian to safeguard the child’s: 1. Health including given consent to surgical , medical or dental treatment. 2. Educational upbringing. 3. Welfare and development 4. Protection and management of his property 5. Act as the minors legal representative
  • 21. Guardianship of the Child outside wedlock • In the case the right of custody and guardianship belongs to the mother solely although the putative father may also have the guardianship through court, if he can prove to make a superior arrangement for the children or by the agreement of the mother but this right is revocable • There has been development on this issue in the common law countries. For example, the Law Reform (Parent and Child) (Scotland) Act 1986, s 1, provides for legal equalities to children whether or not there parents are or have been married to each other. S.2, confers parental right (including the right of custody) on the mother whether or not she is or has been married to the child’s father and on the father if he is married to the child’s mother or was married to her at the time of the child’s conception or subsequently.
  • 22. Guardianship of Child of Same-Sex Marriage There is fluctuation in the custody of the minor child in same sex-marriage: 1. After the breakup of a same-sex civil union In 2004, a Virginia trial judge granted sole custody of Isabella Miller-Jenkins, to Lisa Miller, her biological mother, citing the Virginia law. 2. In 2006, a Virginia appeals court reversed the trial court’s decision. Given the right of custody to both parents. 3. In 2007, an appeal of the Virginia appellate decision was dismissed last year by the Virginia Supreme Court.
  • 23. Types of Guardianship in Accordance to Duties: • Guardianship on person: • Guardianship over person simply means guardianship over a minor or infant (any body below the age of 18). The guardianship includes the moral, spiritual and educational upbringing of such infant. • Guardianship on Property: • Guardianship over property connotes the protection and management of the property of an infant as well as an incapacitated adult , • Guardian Ad Litem: Guardians ad litem are often appointed in divorce cases or in parenting time disputes to represent the interests of the minor children. Guardians ad litem are also used in other family matters involving grandparents obtaining custody or grand parenting time as well as protection orders where one parent is attempting to get an order against another party with a legal connection to the child. The kinds of people appointed as a guardian ad litem vary by state, ranging from volunteers to social workers to regular attorneys to others with the appropriate qualifications. The two divorcing parents are usually responsible for paying the fees of the guardian ad litem, even though the guardian ad litem is not responsible to them at all.
  • 24. Condition of a guardian or custodianship 1. Must be a Islam. 2. Mother must marry person other than Maharam. 3. Must be a major. 4. Must be sane.
  • 25. Recent Developments in Guardianship System: • In the modern day a lot of innovations and development has been brought to the guardianship system across the globe, some of the example of the new systems include the followings: - Conservatorship: • A conservator is responsible for making decisions about the financial affairs of the ward. The court appoints the conservator. The ward’s financial affairs include assets—such as stocks, bonds, bank accounts, cash and real estate—for which the conservator has assumed responsibility. Generally, the conservator controls all of the ward’s income and property, takes care of paying bills, and handles other financial matters.
  • 26. Continue…… - COMMUNITY GUARDIANSHIP (AUSTRALIA): Many adults in Western Australia have limited capacity to make decisions. These may include decisions about where they live, who cares for them or what medical treatment is appropriate. Volunteers with the Public Advocate’s Community Guardianship Program will help some of these people.
  • 27. Continue……. - Standby Guardianship: One of the more recent approaches to transferring custody is facilitated through standby guardian laws. Many States developed these laws to address specifically the needs of families living with HIV or other disabling conditions and terminal illnesses who desire to plan a legally secure future for their children. Approximately 21 States and the District of Columbia have made statutory provisions for standby guardianships. Most standby guardian laws share these provisions:
  • 28. Cont… • Permanent Guardianships (UK) • These are guardianships designed for children who have been in state custody and which are difficult to terminate. For example, Oregon has a permanent guardianship status that may only be granted by the juvenile court after it is proven that it is in the best interest of the child that the birth parent should never have physical custody of the child. A birth parent is prohibited from petitioning the court to terminate this permanent guardianship once it is granted. When assessing their options, caregivers should be aware of whether permanent guardianship exists, and how it is defined, in their state.
  • 29. Termination of Guardianship • Guardianship terminates at any of this stages: 1. The minor attaining 18 year of age (majority). 2. The death of the child or guardian. 3. The termination of the appointment by court order.
  • 30. Conclusion… It would be observed that the scenario nowadays is that the best interest of the minor is given preference over any other consideration regardless of the parents or child’s status.
  • 31. Wallahu a’alam Thank you for the audience