In the midst of a divorce, the question that weighs heaviest on a parent’s heart is often whether they will be granted custody, preserving their ability to nurture and support their child’s development.
What are the laws that govern child custody in Malaysia?
Child custody for non-Muslims is primarily governed by the Law Reform (Marriage & Divorce) Act 1976 (LRA 1976) and is adjudicated in civil courts.
In contrast, child custody for Muslims is governed by the Islamic Family Law Enactments of the respective states or the Islamic Family Law Act of the Federal Territories, and such matters are heard in Syariah Courts.
Rights that can be granted to divorced parents
1. Physical Custody
It refers to the legal right and responsibility for raising a child and personally managing the child’s upbringing, especially a person’s right to keep the child in his or her home.
2. Guardianship
It encompasses the care, upbringing, and management of a child’s property. It may be awarded to one parent or both, to make important decisions about the child including education, healthcare, and religion.
3. Child Access and Visitation Rights
The parent who is not granted with physical custody.
Guardianship vs Physical Custody
There is a distinction between guardianship and physical custody. A guardian is someone who has custody, as well as being responsible for support, health and education. In contrast, a parent with physical custody is primarily responsible for the child’s day-to-day care and has the right to have the child live with them.
In divorce proceedings, the court may award custody to someone who is not the child’s guardian, depending on what is in the best interest of the child. In such cases, the guardian may retain the authority to make major decisions regarding the child’s upbringing, while another person is responsible for the child’s daily care and supervision.
Presumption of Custody
S88(3) of the LRA 1976 provides that there shall be a rebuttable presumption that it is for the good of a child under the age of seven years to be with the mother.
- Power for court to make order for custody
(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.
However, S5 of the Guardianship of Infants Act 1961 (GIA 1961) provides that a mother shall have the same rights and authority as a father regarding the custody and upbringing of an infant, the administration of the infant’s property, and the ability to apply to the Court in matters affecting the infant.
5. Equality of parental rights
(1) In relation to the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal.
(2) The mother of an infant shall have the like powers of applying to the Court in respect of any matter affecting the infant as are possessed by the father.
In fact, due to the presumption in S88(3) LRA 1976, it is generally preferable for a mother to apply for custody of her young infant under LRA 1976 rather than under GIA 1961. Nonetheless, in applying this presumption the court will also consider the undesirability of disrupting the child’s life through changes in custody. Therefore, the child’s welfare remains the paramount consideration in determining custody.
Factors the Court Will Consider When Deciding on Custody
The welfare or interest of the child shall be the first and paramount consideration in deciding disputes relating to custody pursuant to S88(2) LRA 1976. The court will consider the position of both the paternal and maternal sides and determine which party is more competent for the child’s welfare and upbringing. Custody will then be awarded to the party best suited to serve the child’s best interests.
S88(2) In deciding in whose custody a child should be placed the paramount consideration shall be the welfare of the child and subject to this the court shall have regard—
(a) to the wishes of the parents of the child; and
(b) to the wishes of the child, where he or she is of an age to express an independent opinion.
1. Best Interest of the Child
The best interests of the child serve as the guiding principle in custody determinations. The principle is subjective in nature. Therefore, different factors and conditions needed to be considered to determine what arrangement best serves the child’s interests.
In Mahabir Prasad v Mahabir Prasad [1982] 1 MLJ 189, the Federal Court explained that the “first and paramount consideration” means that the child’s welfare must override all other interests. The court must consider every relevant factor, including the child’s relationship with each parent, potential risks to the child, and each parent’s capacity to provide proper care and stability.
Therefore, it is evident that the court considers factors beyond financial aspects. The child’s comfort and happiness must also be taken into account, as they are integral components of the child’s well-being. This is to ensure that the child can live and grow up in a loving and stable home environment. Hence, if one parent can demonstrate active involvement in the child’s life, such as spending quality time and providing support at each stage of the child’s development, this may influence the court’s decision in determining custody. Similarly, a parent’s active involvement in the child’s education, such as attending parents’ day, supporting the child’s academic progress and involvement in the child’s educational journey may also positively influence the court’s custody decision.
Furthermore, the court highly values stability in the child’s living environment. This is because a stable home environment with suitable living arrangements and consistent routines can significantly impact the child’s emotional and psychological development. Accordingly, the court seeks to ensure that custody arrangements do not disrupt or compromise the child’s education and will minimise any impact on the child’s academic performance and emotional well-being. In addition, in cases involving divorced parents with multiple children, the court will generally avoid separating siblings unless there is a compelling reason to do so.
2. Parental Wishes
S88(2)(a) of the LRA 1976 shows that the wishes of the parents are an important consideration in custody cases. However, the welfare of the child is the paramount consideration and prevails over any parental claim. Accordingly, parental wishes may be overridden if they conflict with the welfare of the child. Thus, it can be concluded that the wishes of the parents are generally not that significant unless it can be shown that those wishes are consistent with the best interests of the child.
3. Child’s Preferences
S88(2)(b) of the LRA 1976 provides that the court shall have regard to the wishes of the child, where he or she is of an age to express an independent opinion.
In Manickam v Intherahnee [1985] 1 MLJ 56, the Federal Court held that the elder child, being only eight years old at the time of the hearing and in the custody of the appellant and his family, could not reasonably be expected to express a truly independent opinion regarding his preference.
In Mahabir Prasad v Mahabir Prasad [1982] 1 MLJ 189, the Federal Court took into account the wishes of both children, aged 7½ and 8½, as they were quite sure that they loved their mother and preferred to live with her rather than with their father.
In Viran a/l Nagapan v Deepa a/p Subramaniam and other appeals [2016] 1 MLJ 585, the Federal Court held that in considering the wishes of the child, the court must be mindful of the possibility that the child may have been influenced by those around them. Whether a child is capable of expressing an independent opinion depends largely on the specific facts of the case and the judge’s assessment of the circumstances. The court further held that it is reasonable to suggest that children above the age of seven may be presumed capable of forming and expressing an independent opinion.
Therefore, whether a child’s view amounts to an independent opinion largely depends on the particular facts of the case and the judge’s assessment of those circumstances. Generally, children above the age of seven may be regarded as capable of expressing an independent opinion. However, the child must demonstrate confidence in their decision and be able to provide reasonable justification for their preference.
4. Financial Stability of the Parent
A parent’s financial situation may influence the court’s decision in custody matters. If a parent is unable to provide adequate financial support to the child, resulting in neglect, unsafe living conditions, or an inability to meet the child’s basic needs, the court may take this into account when determining custody. However, a parent with fewer financial resources may be awarded custody if they share a strong emotional bond with the child and are able to meet the child’s daily needs, such as affectionate bonds and nurturing skills. In such cases, the court may order the other parent to provide child support to assist the custodial parent.
Therefore, while financial stability matters, it will always come second to a child’s emotional and physical well-being.
5. Status Quo Rule
In determining custody, the court would also take into account the importance of preserving the status quo to avoid disrupting the child’s life. “Status quo” generally refers to the existing state of affairs. In this context, it pertains to the parental arrangement in place prior to the formal child custody hearings. In certain circumstances, the child may already have been living with one parent prior to the parents filing for divorce. In such cases, the court will tend not to disrupt the child’s life by changing the arrangement.
In Masam v Salina Sapora [1974] 2 MLJ 59, the biological mother, who was unmarried, had given her child to a foster mother when the infant was nine days old. The mother later sought custody of her son from the foster parents. However, the court noted that the child had been living with the foster parents for approximately two years and that they had cared for him with love and affection. Accordingly, custody was allowed to remain with them. This is because if the child were taken away from the foster parents after such a long time, he would develop a permanent emotional scar. The court further emphasised that a child’s future happiness and sense of security are always important factors, and the effect of a change in custody will often warrant close and anxious consideration.
However, it is not necessary that the child’s status quo be preserved at all times. The Federal Court in Mahabir Prasad v Mahabir Prasad [1982] 1 MLJ 189 explained that damage may be caused to the emotional development of children if they are suddenly removed from a familiar, secure, and supportive set of relationships and placed among strangers, even if they are blood relatives. However, this does not mean that the status quo must always be preserved. It merely means that the court must give anxious consideration to the evidence before it and determine how best to promote the interests and welfare of the children. The court may order a change to the status quo if it would provide a better or significant improvement to the child’s welfare. According to Khoo Cheng Nee v Lubin Chiew Pau Sing [1996] 4 MLJ 171, the High Court held that a party seeking an order to change the children’s existing custodial arrangements must show that what he or she offers would better promote the welfare of the children. The court will evaluate whether the improvement in the child’s welfare is sufficient to justify disturbing the child’s life by such a change in custody. It must be shown that there will be positive advantages accruing to the children’s welfare as a result of the change.
In short, the court will generally seek to preserve the status quo of custodial arrangements to avoid disrupting the child’s life. However, the court may order a change to the status quo if doing so would benefit the child’s welfare or if it is otherwise necessary.
When Do Child Custody Proceedings Start?
Child custody can be enforced by either parent at any time. Custody of the children of a marriage is normally determined at the time of the divorce proceeding of the marriage.
Can parties apply to the courts to vary an order for maintenance?
A court order concerning child custody is never final or conclusive; therefore, it can be varied at any time. Even if the court has already made a maintenance order and there are significant changes in circumstances, either party may apply to the court for a variation order.
Power for court to vary orders for custody or maintenance
- The court may at any time and from time to time vary, or may rescind, any order for the custody or maintenance of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.
Pursuant to S96 of the LRA 1976, a court has the power to vary or rescind an order for maintenance at any time if the court is satisfied that the order was based on:
a. Misrepresentation;
b. Mistake of fact; or
c. There has been any material change in the circumstances.
In Gisela Gertrub Abe v Tan Wee Kiat [1986] 2 MLJ 58, the Supreme Court held that the word “vary” in S96 of the LRA 1976 has a broad meaning. It does not only mean increasing or reducing the amount of maintenance payments, but also to include power to suspend the maintenance order and to revive the operation of the maintenance order or any provisions so suspended. Moreover, “rescind” means to abrogate, annul, revoke, cancel, discharge, or put an end to something altogether. Therefore, it is evident that the court may order a party to pay monthly maintenance. If the husband later loses his job, the court may vary the order by reducing the amount or temporarily suspending the payments. When the husband finds a new job, the court may revive the maintenance order so that the payments continue. The court may also rescind the order depending on the circumstances.
Furthermore, certain requirements must be satisfied before the court can vary or rescind an order:
1. Misrepresentation
Although misrepresentation is not defined under the LRA 1976, it is defined in the S18 of the Contracts Act 1950 (CA 1950).
“Misrepresentation”
- “Misrepresentation” includes—
(a) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
(b) any breach of duty which, without an intent to deceive, gives an advantage to the person committing it, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him; and
(c) causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement.
A misrepresentation simply refers to a representation that is untrue. Generally, there are innocent and fraudulent misrepresentations, which entitled the parties to rescission or variation of the order or agreement. There is a significant distinction between innocent misrepresentation and fraudulent misrepresentation. Innocent misrepresentation occurs when the representor believes that the statement is true, whereas fraudulent misrepresentation occurs when the representor does not believe the statement to be true or is aware that it differs from the truth.
However, marriage is not a business transaction and misrepresentation is not specifically defined under the LRA 1976. Accordingly, the courts generally take a broader and more flexible approach to interpreting misrepresentation. Therefore, the
most crucial element is that the representor intended the other party to rely on the representation made.
2. Mistake of Fact
Notably, the term ‘mistake of fact’ is not expressly defined under the LRA 1976. In Thirupathy a/l Muniandy v Bintumathy a/p Ramakrishnan [2019] 12 MLJ 220, the High Court explained that mistake of fact happens when someone is unaware of or mistaken about an important fact related to the contract, or believes something exists when it actually does not. It can be shown in the case of Lim Soon Heng v Tan Beng Choo (P) [2009] MLJU 261. The appellant said he was willing to pay maintenance for his son starting in 1999. However, this was not realistic because just two years earlier he had been in jail and was still recovering financially after eight years of bankruptcy. There was also no evidence to show that he was financially capable of making payments at that time. Therefore, it was only appropriate to require him to start paying maintenance from 2004. The Court of Appeal was satisfied that the earlier maintenance order was based on a mistake of fact, as the judge did not properly consider that the appellant did not have the financial means to pay.
However, the court cannot be expected to change or cancel a maintenance order for every minor mistake of fact. The court requires a very high standard of proof before it will vary or rescind an order based on a mistake of fact.
3. There has been any material change in the circumstances
The party seeking to vary a child maintenance or custody order must prove to the Court that there has been a material change in circumstances. In Gisela Gertrub Abe v Tan Wee Kiat [1986] 2 MLJ 297, the Supreme Court held that the “proper approach” is to start from the original order and consider what financial changes have occurred since that date. It is evident that the Court will examine whether there have been material changes in the circumstances of the parties since the order was made. Hence, the question that usually arises is what constitutes a material change.
In Sivajothi K Suppiah v Kunathasan Chelliah [2006] 3 MLJ 184, the High Court held that there must be a material change in circumstances for the court to vary or rescind any maintenance order. A “material change” does not simply mean any change, it refers to a change in an essential aspect that must be considered in light of all the relevant circumstances. What constitutes a material change largely depends on the facts and circumstances of each particular case. For instance, in YWS v LZT [2020] MLJU 1246, the High Court held that a decline in income merely amounts to a change in circumstances. However, a windfall gain from the sale of shares and matrimonial properties was found to constitute a material change in circumstances. Generally, a material change in circumstances refers to a change that alters the conditions of the child’s life significantly enough that it may affect the court’s determination of what is in the child’s best interests.
The court may also vary or rescind a custody order. In Choo Tzit Howe (L) v Tham Pik San (P) [2017] MLJU 1609, it was disclosed that, despite the Decree Nisi, the plaintiff husband had left the child with his parents in Melaka instead of keeping the child with him at the matrimonial home. The plaintiff wife alleged that the husband had unilaterally altered the child’s custodial arrangement and had failed to send the child to the agreed school. She also experienced difficulty in gaining access to the child, notwithstanding that the Decree Nisi clearly granted her access once a month. The High Court held that, due to a material change in circumstances, the wife should be granted custody, care, and control of the child, while the husband would in turn be granted reasonable access to the child.
In short, it is evident that the parties may vary or rescind a custody or maintenance order if it can be shown that there has been a material change in circumstances after the divorce.
Conclusion
In conclusion, the welfare and best interests of the child shall always be the first and paramount consideration in deciding custody disputes. While parties may apply to vary or rescind an order based on misrepresentation, mistake of fact, or material changes in circumstances, the ultimate aim of the court is to ensure that the child grows up in a stable, loving, and nurturing environment. The child’s comfort, emotional well-being, and sense of security remain at the heart of every decision, reflecting the court’s commitment to protecting the most vulnerable and guiding them toward a happy and balanced upbringing.
BY TAN ZHI HAN
Note: This article is for reference only and does not constitute legal advice. Therefore, if readers have any legal questions or needs, they should seek professional legal advice. If the reader suffers any loss by relying on this article, the author will not be held responsible.
