Is a formal adoption order necessary?
Malaysian society continues to maintain the practice of "foster parents" or "godparents". Many times, children are unofficially and/or customarily adopted by their uncles and aunties or other close relatives.
In Amarapathi Periasamy v Muniandy Periasamy, a child was released to the care of her aunt for 11 years and at all times, her aunt and uncle acted (and was acknowledged by all) to be the child's foster parents. When she was 12 years old, the aunt brought her back to meet her natural parents, and the natural parents refused to allow her to return to the foster home. The foster parents commenced a suit for custody of the child.
The case proceeded all the way to the Federal Court where the Court dismissed the case, on the grounds that the natural parents would have custody of the child and the jurisdiction of the Court to determine custody is only exercise when there is a dispute between the natural parents in respect of the custody. The Court pointed to the lack of formal adoption procedures as an indication that the foster parenthood was not intended to be permanent.
So, for all "foster parents", "godparents", informal adoptive parents, and the like, take the additional step to apply for a formal adoption order. An adoption order renders the adopted child to be a child of the marriage (i.e. ranks equally with other legitimate children of the marriage). And upon issuance of an adoption order, the adoptive parents actually have a greater right to custody of the child as compared to the natural parents. This would prevent surprises like in the case of Amarapathi Periasamy, where the natural parents disputed the "adoption" after 12 years.
Malaysian society continues to maintain the practice of "foster parents" or "godparents". Many times, children are unofficially and/or customarily adopted by their uncles and aunties or other close relatives.
In Amarapathi Periasamy v Muniandy Periasamy, a child was released to the care of her aunt for 11 years and at all times, her aunt and uncle acted (and was acknowledged by all) to be the child's foster parents. When she was 12 years old, the aunt brought her back to meet her natural parents, and the natural parents refused to allow her to return to the foster home. The foster parents commenced a suit for custody of the child.
The case proceeded all the way to the Federal Court where the Court dismissed the case, on the grounds that the natural parents would have custody of the child and the jurisdiction of the Court to determine custody is only exercise when there is a dispute between the natural parents in respect of the custody. The Court pointed to the lack of formal adoption procedures as an indication that the foster parenthood was not intended to be permanent.
So, for all "foster parents", "godparents", informal adoptive parents, and the like, take the additional step to apply for a formal adoption order. An adoption order renders the adopted child to be a child of the marriage (i.e. ranks equally with other legitimate children of the marriage). And upon issuance of an adoption order, the adoptive parents actually have a greater right to custody of the child as compared to the natural parents. This would prevent surprises like in the case of Amarapathi Periasamy, where the natural parents disputed the "adoption" after 12 years.
posted by Kheng Hoe at 12:33 AM
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