Highlights 

1.  The factors that help the court to decide child custody are:

a) The welfare of the child;
b) The wishes of the parents of the child; and
c) The wishes of the child, if capable of independent opinion.

2. Welfare of the child is the “first and paramount consideration” 

3. There is a rebuttable presumption that it is for the good of a child below the age of seven years to be with his or her mother. 

4. But in deciding whether that presumption applies, the court has to consider the undesirability of disturbing the life of a child by a change of custody.

5.  If the father wants to gain custody of his children below seven years of age, the father will need to prove that his spouse is an unfit mother.

6. A mother who has extra marital affair would not be regarded as an unfit mother. 

7. If the couple is unmarried, the mother of the illegitimate child will prima facie have the right of custody.

8. Where there are two or more children of a marriage, the court shall not be bound to place all in the custody of the same person but shall consider the welfare of each independently.

9. The Court is more willing to grant joint custody. 

How Do Malaysian Courts Decide Which Parent Gets Child Custody After A Divorce?

 

Q1. Who can apply for custody of a child?

Answer:

The parents of the child would be the only party that has the right to make application for the custody of the child. 1 However, the court may in exceptional circumstances grant temporary custody to any other relative of the child, any association or any suitable person the court deems fit.

Q2. What is child of the marriage?

Answer:

A child of the marriage includes a child of one party, whether legitimate, illegitimate or adopted, who is accepted as one of the family by the other party to the marriage.2

Q3.Can I make application for child custody before initiating divorce proceeding?

Answer:

Yes, you may make an application for child custody anytime. There is no need for you to wait for divorce proceeding to commence, unlike maintenance claim.

Q4. How does the Court determine child custody?

Answer:

The factors that help the court to decide child custody are:
a) Most importantly, the welfare of the child;
b) The wishes of the parents of the child; and
c) The wishes of the child, if capable of independent opinion3.

Q5. What is the best interest or welfare to the child?

Answer:

The matter of the children’s welfare is the “first and paramount consideration” which means that one should view it as the overriding consideration.4  The welfare of a child is not to be measured by money nor physical comfort only.5  

  1. The best interests of the child in a given situation depends upon many factors, including:
    the child’s age, gender, mental and physical health;  
  2. mental and physical health of parents; 
  3. lifestyle and other social factors of the parents, including whether the child is exposed, for example, to second hand smoke and whether there is any history of child abuse;  
  4. the love and emotional ties between the parent and the child, as well as the parent’s ability to give the child guidance;  
  5. the parent’s ability to provide the child with food, shelter, clothing and medical care; 
  6. the child’s established living pattern (school, home, community, religious institution);  
  7. the quality of school, particularly important when one parent wishes to move; and  
  8. the ability and willingness of the parent to foster healthy communication and contact between the child and the other parent6

Q6. Are Mothers More Likely To Get Child Custody During Divorce?

Answer:

There is a rebuttable presumption under section 88(3) LRA 1976 that it is for the good of a child below the age of seven years to be with his or her mother. This is mainly due to the fact that babies are more physically dependent on their mothers by nature.

But in deciding whether that presumption applies in a particular case, the court has to consider the undesirability of disturbing the life of a child by a change of custody.

If the father wants to gain custody of his children below seven years of age, the father will need to prove that his spouse is an unfit mother.

Q7. Can adultery be a ground to disqualify a parent from having custody of child?

Answer:

No. The court is only concerned with the question of what exactly is the children being exposed to, and whether it is contrary to their welfare. Adultery, although frowned upon by our society, by itself is not a sufficient ground to disqualify a mother from having custody of her children.7 A mother may have failed as a wife to her husband, but the question here remains whether she has failed as a mother to her children. Merely that another person has emerged in her life is not necessarily by itself bad for the children.

Q8. Does it hurt my chances of getting custody of my young child if I move out of the home and leave the young child with his/her father since he/she was borne?

Answer:

Yes. Despite there is presumption in favour of mother, a judge will probably be more inclined to grant custody to the parent that is currently residing in the home having regard to the undesirability of disturbing the life of a child by changes of custody.8 The underlying principle is that there should be continuity of care which provides for stability.

Q9. Does unmarried parent have same right of custody as the married parent?

Answer:

If the couple is unmarried, the mother of the illegitimate child will prima facie have the right of custody and when questions on custody or access arise the wishes of the mother will be taken into account but the welfare of the child is the first and paramount consideration.9

Q10. In granting custody order, will the court separate the children?

Answer:

Yes, where there are two or more children of a marriage, the court shall not be bound to place both or all in the custody of the same person but shall consider the welfare of each independently.10

Q11. Is custody always awarded to just one parent?

Answer:

No. It is very common for a court to award joint custody. Joint custody is where, although one parent may have full physical custody, both parents must agree on any decisions that impact the child, such as their education, medical care and spiritual matters.

The Court is more willing to grant joint custody except in the following two circumstances11:-

1. where one parent is so unfit for parenting that the benefits of having his or her involvement in the children’s life is far outweighed by the harm which his involvement may bring to the child;

2. where the relationship of parents is such that cooperation is impossible even after the avenues of mediation and counseling are exhausted and the lack of cooperation is harmful to the child.

FOOTNOTES 

[1] Under section 88(1) of the Law Reform (Marriage & Divorce) Act 1976 (“LRA 1976”),

[2] Section 2 of LRA 1976 

[3] Section 88(2)  of LRA 1976 

[4] Mahabir Prasad v. Mahabir Prasad [1981] CLJ Rep 65 

[5] Sean O’ Casey Patterson v. Chan Hoong Poh & Ors [2011] 3 CLJ 722 

[6] Khoo Cheng Nee v. Lubin Chiew Pau Sing [1996] 4 MLJ 171 

[7] Ibid. 

[8] RE T (A MINOR) [1993] 2 CLJ 652   

[9] T v O [1993] 1 MLJ 168 

[10] Section 88(4) LRA 1976 

[11] Tan Sherry v Soo Sheng Fatt [2016] 1 LNS 1586 

THIS FAQ IS PREPARED AND PUBLISHED BY GENERAL LITIGATION, CORPORATE INSOLVENCY AND APPELLATE DEPARTMENT OF THE DISPUTES RESOLUTION OF MESSRS GAN & ZUL, ADVOCATES & SOLICITORS.
Prepared by:

Ben Lee Kam Foo (Partner)
Head of Dispute Resolution
Arbitrator & Adjudicator
Fellow of ADR, AIAC
Cross Border Taxation Planning

Shafihani Binti Md Ali (Associate)
General Dispute Resolution
Appellate Division
Contractual, Land and Commercial Disputes
Pre and Post Liquidation Disputes

Victor Pang Chee Siong (Associate)
Generate Disputes Resolution
Tax advisory and Disputes Division
Contractual, Land and Commercial Disputes
Succession and Estate Distribution

Gan & Zul is an established legal firm in Malaysia which consists of experienced litigation lawyers. Our firm provides a wide spectrum of legal services covering various aspects of laws includes dispute resolution, debt recovery, land, bankruptcy, insolvency and corporate dispute. We are also a firm construction lawyers based in Kuala Lumpur.
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