Who Gets Child Custody in a Divorce?

According to the Marriage and Divorce Statistic 2018, there were 10,087 divorce cases between non-Muslim couples in Malaysia.

In the course of a divorce proceeding, the couple may have disagreements on deciding who gets what from the marriage, and things will get messier when children are involved. Unlike property, which can be divided equally, child custody is not just about being fair to the couple but the child has to be considered too.

The law that governs child custody and divorce in Malaysia is the Law Reform (Marriage & Divorce) Act 1976 (LRA 1976).

Decision Making on Child Custody

It is always advisable for the couple to seek mediation (a procedure in which the parties discuss their disputes with the assistance of a trained impartial third person who assists them in reaching a settlement) and reach an amicable agreement on the custody of their child without bringing it to court. Through this, the couple gets to decide what is best for everyone and it is also a lot more drama-free.

However, in the circumstances where the couple are unable to reach an amicable decision on the custody, the court may then make a decision for the parents and child.

Who Can Apply For Custody?

According to section 88(1) LRA 1976, the parents of the child, relatives, welfare association and other person can apply to the court to get the custody of the child if it is proven that the birth parents are incapable of carrying their duties and responsibilities towards the child.

What Factors Will The Court Consider When Deciding On Custody?

In deciding custody, the paramount consideration is the welfare of the child.

Under section 88(2) LRA 1976 the court will take the following factors into consideration before deciding on custody:

• the wishes of the parents of the child, where the court will look into both  the physical and mental welfare of the child; and
• the wishes of the child, provided the child is of an age to express an independent opinion.

One of the considerations on the welfare of the child is the status quo of the child. If the child has been living in an environment which he or she is familiar and comfortable with, then the court ought not to change the custody of the child.

This can be seen in the case of Masam v Salina Saropa & Anor [1974] 2 MLJ 59, an unmarried mother, gave her child away to the respondent (“foster parents”) when the child was 9 days old. A few years later, the mother got married and wished to take the child to Australia with her husband. The foster parents resisted the claim. The High Court placed the custody of the child to the foster parents because the foster parents had taken care for the infant with love and affection. If the child were taken away from the foster parents after such a length of time the result might be that the child would develop a permanent emotional scar.

The main matter the court should always consider is the welfare of the child, although a parent has a right but not an absolute right to the custody of the child and the court will be very cautious in regard to the circumstances in which they will interfere with the parental right. The court has to consider:

• the whole of the circumstances of the case;
• the position of the parent;
• the position of the child;
• the age of the child;
• the religion of the child; and
• the happiness of the child. 

At What Age Can A Child Express His Or Her Opinion?

There is no exact age for this. What matters is that the child should be able to decide independently. This means that they must choose which parent to follow without being influenced by any outside party such as a family member.

The case of Yong May Inn v Sia Kuan Seng [1971] 1 MLJ 280 illustrates how influence can make a parent lose their child. In this case, the children were three girls aged 12, 10 and 8, and they chose their father because their paternal family members taught them to hate their mother. Because of this, the judge decided that they were influenced to choose their father, and the girls were given to their mother instead.

Therefore, a child can decide, as long as they are not influenced by any family members.

What If You Have More Than One Child?

Assuming there is more than one child involved in deciding custody, the court will decide on the well-being of each child, independently:

• the life of a child’s lifestyle should not be disrupted from the change of custody;
• the lifestyle of the parents will be relevant only if the welfare of the child is affected. For an example, if a parent is caught having an extra marital affair, his action does not automatically disqualify him from having custody;
• education and medical needs;
• each parents’ earning capacity;
• behaviour of each parents; and
• the relationship between the child and the parent.

Are Mothers More Likely To Get Child Custody During Divorce?

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.

In Amar Kaur Ram Singh v Najar Singh Sagar Singh [1992] 2 CLJ 807, the mother who had a history of suicidal tendencies and violent behaviour sought custody of her six children who were staying with their father. The court dismissed the mother’s application on the grounds that the mother was mentally unstable and the paramount consideration is the welfare of the children and the ability of the relevant parents to take care of the children. It was also shown that the children were in positive physical, mental and emotional state in the care of the father. 

What about Parties That Are Not Given Custody?

When making an order for custody, the court may provide for visitation and rights of access to a parent or any member of the family of a parent who has been deprived of custody. Frequently made orders in relation to access/visitation are:

• Alternate weekends;
• One half of school holidays;
• Alternate public holidays;
• Birthdays and important festivals.

Can You Have Custody Of Your Child Forever?

Under section 95 LRA 1976 the order for custody ceases when the child attains the age of 18 years or on the completion of further or higher education or training, whichever is the later.

However, if the child has a physical or mental disability, the custody order ends on the ceasing of that disability.

Section 95 LRA 1976 was later amended with effect from 15.12.2018 by the Law Reform (Marriage and Divorce)(Amendment) Act 2017 (Act A1546) whereby the period of payment of maintenance for a child who is pursuing higher education or training, was extended to the completion of the child’s high education or training.

Conclusion

There are a lot of things the courts need to consider, before giving custody of children to parents or guardians. Custody differs from one family to another. No two marriages are the same. Each case will be decided based on its own facts.

The paramount consideration in child custody in Malaysia shall always be the welfare of the child.