Children Below 7: Who Gets Custody in a Divorce?

“Can I get custody of my young children?”

When it comes to the issue of child custody, one of the first things your lawyer will ask you is the age of the child or children involved.

This is because Section 88(3) Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”) provides for a rebuttable statutory presumption (reproduced below):

“There shall be 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…”

The effect of Section 88(3) LRA 1976 is that in the circumstance where there is no strong and cogent evidence to show that a mother is an unfit parent, then a mother will be granted the custody, care, and control of the child.

Why is there such a statutory presumption?

The rationale behind this presumption was explained in the case of L v S [2002] 7 MLJ 584; [2002] 6 CLJ 106, “It is that this period, i.e. until a child reaches seven years of age, is a period of nurture when a young child is dependent on the mother for its physical and emotional needs…. ‘An infant of tender age is by nature more physically and spiritually dependant on its own mother than anyone else.’”

How is the Section 88(3) LRA 1976 statutory presumption rebutted?

The Court of Appeal in Melissa Marie Albert v Malcolm Fernandez and another appeal [2019] 2 MLJ 290 held that to rebut this statutory presumption, there must be strong and cogent evidence to prove that the mother is an unfit mother and detrimental to the child’s welfare.

In that case, the Court of Appeal drew a distinction between a bad wife/employer and a bad mother:

"... the evidence adduced by the father against the mother, for example, she being of quick temper, often threatening the father by hurting herself, screaming and turning violent every time her wishes were not complied with, breaking the kitchen cabinet door and door to their bedroom cabinets, a few of their maids leaving their employment because of her temper and attitude, and ill treatment of their maid..., prioritising her side of family, being too engaged with social media etc, only reveal that both the father and mother had serious disputes in their marriage between themselves as spouses, and that she is a poor employer to her maids. However, there is no convincing evidence to prove that the mother is an unfit mother to have custody of the child, and is detrimental to the child’s welfare."

In addition, the High Court decision in Sharmila a/p Maniam v Sivamani Pillay a/l Veerasanan [2020] MLJU 8 shows that even when a mother does things or works a job that some may consider “immoral”, it does not by default render her an unfit parent:

"[21] RH in his evidence stated that PW is a working prostitute, and it supposedly renders PW as an immoral person. [...]

[22] It is to be noted that PW was honest enough to admit that she works as a social dinner escort who for a fee, accompany lonely man for dinner. This should not in any way ipso facto be held against her or automatically makes her immoral. Currently this manner of insinuation which is disturbing must stop. The bare allegations of PW’s alleged prostitution are not in any way supported/proven as required by law. The attempt by RH to show that PW is of a character unfit to parent the said child in the circumstances of the case must fail."

In the above case, the statutory presumption under Section 88(3) LRA 1976 was NOT successfully rebutted by the husband. Therefore, custody, care, and control of the 4-year-old child was awarded to the wife while the husband was given supervised access every fortnight.

Cases where the statutory presumption was rebutted

Below are 2 examples of cases where the Section 88(3) LRA 1976 statutory presumption was successfully rebutted:

In Amar Kaur Ram Singh v Najar Singh Sagar Singh [1992] 2 CLJ 807 (a case where the mother was an absentee mother and unable to care for herself or her children), Abdul Malek Ahmad J held that the presumption was rebutted and granted custody to the children's father:

“…I had dismissed the plaintiff/applicant’s application for custody of her six children, who had all along been staying with the defendant/respondent, as I had doubts in the light of the facts of this particular case as to whether the plaintiff/applicant was in a position to look after herself properly, let alone look after the six children, who had also expressed their desire to continue staying with their father who, in the last two years after their mother had left the matrimonial home, appeared to have taken good care of them judging from their appearance in my chambers and their school and probation reports….”

In the case of Dang Chooi Ping v Lim Eng Kok [2012] 6 MLJ 401, the High Court held that the presumption under Section 88(3) LRA 1976 was rebutted and granted custody, care, and control of the children (4 and 5 years old respectively) to the father because the mother physically abused her two sons, causing them to be fearful of her. Below is an excerpt from the judgment:

"[44] Based on the above, I am satisfied that the rebuttable presumption in s 88(3) of the LRA has been rebutted. In this case, the plaintiff has physically abused the children in multiple forms, which a loving and good mother would not do. I find that she is an unfit parent to have custody, care and control of the children. I am of the opinion that the more suitable or better parent to have custody, care and control of the children is, without doubt, the defendant. In my view, at this point when the children feel so vulnerable and are fearful of their mother, it is undesirable to disturb their lives by transferring them from the interim custody of the defendant to the plaintiff. That would be detrimental to the welfare of the children.

[45] I further ordered supervised access because the children are fearful to be alone with the plaintiff during access. This is to ensure that the children would not be physically abused again by the plaintiff during access."

Summary

The above cases show that when a mother is alleged to be a bad wife or employer or allegedly working a questionable job, it does not necessarily mean she is an unfit mother (detrimental to the child's welfare). And if she is not an unfit mother, then the statutory presumption under Section 88(3) LRA 1976 is not rebutted. In such situations, custody, care, and control of a child below 7 years old will go to the mother.

However, the statutory presumption can be rebutted by strong and cogent evidence. When it is proven that a mother is unable to care for herself, or when there is proof of child abuse, this will almost certainly result in the loss of custody. If the statutory presumption is successfully rebutted, the Court will grant custody, care, and control of the child(ren) to another person, such as the father of the children.