This article provides information on the topic of equal right of children custody on father and mother of divorce cases in Malaysia. If you need consultation and legal advice on custody of children in Malaysia, you can always contact us at thedivorcelawyermalaysia.com for the best legal solution at an affordable fee.

Since 2020, it has become a current norm in which a battle usually happens when the spouse files for a divorce petition and this further leads to the increment of cases that need to be settled in the family court. The overload of cases in family court become a volume that is deemed hard to be handled by the family court. Therefore, it is necessary for the community to look into this issue and tackle it in the shortest time.

In deciding with whom the child will live with, the court will consider the wishes of the parents and the wishes of the child (if he/ she is able to express an independent opinion). However, the utmost important principle is the well-being of the child, not the parents. This is covered under section 88 of the LRA.

Section 88(3) of the Law Reform (Marriage and Divorce) Act 1976

“88 (3). 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 but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of a child by changes of custody”

It is the writer’s humble submission that this presumption is rebuttable in these proceedings as the Court should be mindful of what is best for the welfare of the Child. The OS relates to the custody, care and control of the Child, and therefore the Court can take guidance from Section 11 of the GIA, which states;

Section 11 of the Guardianship of Infant Act 1961

“11. The Court or a judge, in exercising the powers conferred by this Act shall have regard primarily to the welfare of the infant and shall, where the infant has a parent or parents, consider the wishes of such parent or both of them, as the case may be.,”

In the case of Tan Siew Kee v Chua Ah Boey[1], Justice Chan Sek Keong had considered Section 3 of the Guardianship of Infant Act 1961 and held as follows:

“So far as the law is concerned, s 3 of the Guardianship of Infants Act 1961 (Cap 122, 1985 Ed) provides that in proceedings for the custody of an infant, the Court shall have regard the we{ fare of infant as the first and paramount consideration and neither the father or mother has a superior right to custody .

….The expression welfare is to be taken in its widest sense. It means the general well-being of the child and all aspects of his upbringing. religious, moral as well as physical. His happiness, comfort and security also go to make up his well-being. A loving parent with a stable home is conducive to the attainment of such well-being. It is not to be measured in monetary terms.”

This is similar to Section 88(2) of the Law Reform (Marriage and Divorce) Act 1976 which states “In deciding in whose custody a child should be placed the paramount consideration shall be the welfare of the children” Hence, the above case can be referred to with regards to the expression of what ‘welfare of the child’ entails.

To assist this Court, what is considered as a paramount consideration referred to in Section 88(2) of the Law Reform (Marriage and Divorce) Act 1976 was answered by Raja Azlan Shah, CJ in Mahabir Prasad v Mahabir Prasad [1982] 1 MLJ 189, where he stated

“The phrase “first and paramount consideration” does not mean that one should view the matter of the children’s welfare as first on the list of factors to be considered, but rather that it must be the overriding consideration.”

Furthermore, Section 5(1) of the Guardianship of Infants Act 1961 also stipulates that in relation to the custody or upbringing of an infant, the rights and authority of the mother and father of the infant is equal. The writer is of the view that since statutory provisions and case law have viewed the welfare of the Child as being paramount, the principles enumerated also incorporate the competence of the parties involved in taking care of the Child, a stable environment and home, and a rational and loving provider.

In short, the writer humbly submits that it is the same that both parties would make a better care provider for the Child.

There are also some principles that the court will adopt when deciding child custody:

  1. Erratic and Unstable Behaviour.
  2. Abuse on Child
  3. Uninhibited Alcohol Consumption
  4. Extra-marital Affair

In the case of Teoh Hock Soon v Chan Peng Soon[2], her Ladyship Yeah Wee Siam J (as she was then) promulgated the test in considering whether a mother is fit mother or whether she is morally unfit or unfit in other ways to be granted custody, care and control of the child, where a court must consider (i) the mother’s parenting skills, and (ii) her morals as a mother.

As the case authorities have shown, the paramount consideration is the welfare of the Child, and hence the custody, care and control should be given to the parent where the Child can develop in a safe and nurturing home. More pressing at hand is the issue of whether the Child would receive the loving care in the Plaintiff’s home when there have been evidence of abuse on the Child for which the Defendant had come to know of.

The law presumes that it is better for a child below the age of 7 years to be with his or her mother. Having said so, a father can still get custody of a young child if he can show that the mother is an unsuitable parent and it will damage the child’s welfare if he’s living with the mother.

In the case of Leong Chau Tho v Yeo Wei Cong, The Plaintiff is held unsuited to be granted sole custody, control and care of the Child at this stage and the Plaintiff can always re-apply to the Courts to vary the order for custody, care and control of the Child sometime in the future when her condition is better. The Child’s well-being would be better preserved if he continues to live with the father, ie the Defendant.

The conduct of the parties is relevant only when the welfare of the child is affected. Generally, an extra marital affair does not automatically disqualify a parent from having custody, but a parent who for no good reason abandons the family may fail to get custody. When making an order for custody, the court may provide the other parent the rights to visit the child. Frequently made orders in relation to access/ visitation are:

  1. Alternate weekends
  2. One half of school holidays
  3. Alternate public holidays
  4. Important festivals or celebrations (eg. Chinese New Year eve, Father’s Day, child’s birthday)

Based on the discussion, we can realise that equal rights actually exist between both of the parents as long as it is under the court’s discretion that the party is suitable to be granted the custody, care and control of the children.

 

[1] Tan Siew Kee v Chua Ah Boey [1988] 3 MLJ 20

[2] Teoh Hock Soon v Chan Peng Soon [2012] 2 CLJ 960