Co-Parenting: Navigating Through The MCO
The current COVID-19 pandemic has been challenging for many parents, especially for those divorced with children. Since the Movement Control Order (“MCO”) came into force on 18 March 2020, the daily routines of families have been drastically affected.
Pursuant to the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No 3) Regulations 2020, the movement of persons in Malaysia have been restricted whereby no one is allowed to move from one place to another except to: –
(a) purchase food, medicine, dietary supplement or daily necessities;
(b) supply or deliver food, medicine, dietary supplement or daily necessities;
(c) seek healthcare or medical services;
(d) procure any essential services other than those referred to in paragraphs (a) and (c);
(e) perform any official duty; or
(f) provide any essential services or perform any duty in relation to any essential services.
The latest regulations have also tightened the movement of persons further, where movement has been restricted to a radius of not more than ten kilometres for the purposes of (a) and (c) above.
The implementation of the MCO poses a problem to divorced or separated couples, who have an existing court order in respect of their custody, care and control over their child. For example, a non-custodial parent, who is entitled to access their child would now have trouble exercising their right to visit and access the child as this would not fall under the exceptions listed in (a) to (f) above.
What can co-parents do?
The best option for co-parents in this situation is to negotiate and come to an out of court agreement to temporarily modify the child’s custody and/or access arrangement while the MCO period remains in force. Alternative arrangements for the non-custodial parent to access the child through virtual means are also encouraged, such as allowing more frequent phone calls or video calls using technologies available out there.
Co-parents may also agree to replace the access time to a later date after the MCO is lifted. It is advisable that any agreement to deviate from a court order should be recorded in writing to avoid one party from alleging a breach of the court order later.
It is also important for the parents to explain to their child the change in his or her living arrangements or access schedules. This is to ensure their child understands why he or she is suddenly unable to spend time with the other parent.
As such, co-parents should always aim to be tolerant and understanding in light of the current COVID-19 pandemic. The implementation of the MCO should not be abused by the parents and is not an excuse for one parent to deny the other parent’s legal right to spend time with the child.
What if the other parent does not agree?
It might be justified for a parent to modify the custody or access arrangements temporarily without the other parent’s agreement if it can be shown that there is a good reason for doing so. This may include situations where a parent has been infected with the COVID-19 virus or has been in direct/close contact with someone infected and therefore, needs to be quarantined. A parent, who is putting the child’s health and safety at risk would constitute a good cause for the other parent to unilaterally modify the custody or access arrangements.
Since this is an unprecedented legal situation, it remains to be seen how the Family Court would interpret these circumstances in enforcing existing custody orders. In normal situations, the Court enforces existing orders strictly in which a parent violating a court order may be exposed to contempt proceedings. However, it may be possible that the Court will approach the situation differently in light of this novel situation.
However, it is safe to say that all parents should aim to be reasonable and have the child’s best interest in mind as the Court would not tolerate any unreasonable behaviour from the parents especially if the welfare and safety of the child is affected.
The need for clearer directives and regulations from the government
With all these uncertainties and possible legal implications faced by parents, the Ministry of Health should perhaps issue guidelines or pass the appropriate regulations on how access to children could be arranged in conjunction with the MCO. It is perhaps best if the Malaysian government considers the compliance of an existing court order an “essential” activity in which access arrangements may continue, although movement and travel in transporting the child must still be kept to a reasonable limit.
That said, the Courts are prepared to be moved and urgent hearings can now be done virtually should such need arises.
By: Jaclyn Chang
DISCLAIMER: This article is for general information only and should not be relied upon as legal advice and/or legal opinion. Messrs Yeoh & Joanne accepts no liability for any loss which may arise from reliance on the information contained in this article.
文章来自于：张美琪律师 (Jaclyn Chang Mei Qi)
文章翻译：李淑婷律师 (Lee Su Ting)
免责声明:本文仅供参考，不应作为法律建议和/或法律意见。Yeoh & Joanne 律师事务所不会承担因依赖本文所含信息而产生的任何损失的责任。