Child Custody and Divorce in Malaysia
Child Custody and Divorce in Malaysia
The truth is, battle for child custody during a divorce in Malaysia is a common occurrence.
Your child might be upset that both his or her parents are going through divorce. This is inevitable.
Who Should Get Child Custody in Malaysia
The question that lies next is who should the child be with. Or in other words, who will have the custody of the child. Will the Court award the custody to the father or the mother?
Joint Petition (Mutual Divorce)
In a joint petition for divorce (where both parties agreed to all the terms of divorce), both parties can settle among themselves on who should have the custody of child. Both can even agree to have joint custody if they think that it is in the best interest of the child. There is even studies to show that co-parenting or maintaining joint custody of children is better to the overall welfare of the children.
Therefore, if there are disputes on the issue of custody, it is always advisable for parties to come to a settlement, if possible, to resolve the conflicts. This can be done by hiring a divorce lawyer to resolve the conflicts between parties.
Single Petition (Non-Mutual Divorce)
However, most single petition divorce (where both parties cannot agree on the terms of divorce) will revolve around the issue of child custody.
Question is, who will the Court grant the custody of child?
Under the divorce law in Malaysia, specifically the Law Reform (Marriage & Divorce) Act 1976, the Court shall presume that it is for the best interest of the child to be with his or her mother if the child is below the age of 7.
That said, the father of the child can rebut the presumption by proving to the Court that it is not true! For example, the father can prove to the Court that the mother often neglect or does not care for the child. You may read more on how one can prove that the mother is not fit as a parent to gain custody in Malaysia.
In the event if the child is above the age of 7, the Court may focus on the welfare and interests of the child, which will be discussed below.
Primary Consideration of the Court in Custody Dispute
Essentially, the most important question the Court will ask is what is the best interest or welfare of the child? If there are more than one child, the Court will assess the welfare and interest of each child independently.
On top of that, the Court is also inclined to maintaining stability of the child (maintaining status quo) in order to not disturb the current welfare and conditions of the child in order to not disrupt the current living environments unless change is really needed. For example, the Court may not be ready to grant custody to the father if the mother has been the primary caregiver of the child for the past years assuming the mother is not an unfit parent.
The Court might also take into account the factors such as previous lifestyle of the child, education and medical needs, each parents’ earning capacity, behavior of each parents, relationship between the child and the parent etc. before making a decision.
Do I Need To Bring My Child To The Court During The Child Custody Dispute
This has been the main and primary concern for parents.
Do you need to bring your child to the Court and give his or her testimony?
Short answer is, it depends.
If the Court thinks that the child is able to give his or her own independent opinion, without being influenced by any parties, the Court may want to hear the wishes of the child.
On the other hand, if the Court thinks that the minor child is unable to give her or her independent opinion, the Court will not do so. More so, if the child is below the age of 7 and is susceptible to be influenced easily.
Independent Report From Child’s Psychologist or Psychiatrist
This can be useful in the event if there is a deadlock in terms of deciding who should have the custody of the child. The Court may even require independent report from licensed and competent experts such as a psychologist or psychiatrist to prove what is in the best interest of the child or who should the child be with.
Conclusion
In short, it is always advisable for parties to reach an agreement on who should have the custody or even joint custody for the best of the child. This can not only save you time and trouble but also to avoid your child from attending the Court during the dispute.
May I know if my husband wants the custody of my 3 months old baby, can he do so under the law? My baby son is still breastfeeding
Hi Vicky,
Under the law, there is a presumption that a child below the age of 7 is best to be with the mother.
In your case, if you are not agreeable to allow your husband to have sole custody of your child, then it is best for you to consult a family lawyer.
May I know if the mother who is a foreigner who married to a malaysian, the mother still has the advantage on the custody of their daughter?
Yes Allen.
There is a rebuttable presumption that a mother shall have the custody of the child below the age of 7 regardless of the nationality of the mother.
If after 2 years not staying together is it call a divorce
If my spouse n his family can owe utilities bill more then a thousand can I have possibilities to win
If he bring sickness to me can it be a reason to
If I m not working n he fight the case how many percent he can win as he don’t have a stable income and whole family smoke even in front of kids
Hi Ru,
Even if both are not staying together for more than 2 years, there is no ‘automatic’ divorce. You still need to get the High Court to pronounce the divorce.
As to the circumstances or factors considered by the High Court on the issue of custody of children, the Court will decide based on what’s best interest for the child.
Therefore, the outstanding of utility bills and smoking in front of kids may be persuasive in helping the Court to make a decision.
As the father, what are my chances of having custody of my 8-year old son? I had given my full-time employment to take care of him for the past 5 years. He has a congenital heart problem coupled with acute anemia. He has also been assessed as a child with attention problem. My wife works full-time and only comes back home after 8pm, but she takes care of the child’s financial aspect. I sustain myself on my savings and occasionally, part-time jobs.
Hi Francis,
The Court will still assess on what is the best for the child. In your case, since the child has a medical condition, the Court will take this into consideration as well as how much medical cost is incurred and who is fit to take care the child (both financially and physically).
what if my vietnamese wife ran back her country with our 3 years old daughter. we still not yet filed for divorce. anything i could do for custody my daughter? thanks 🙏
Hi Yang,
If your wife and daughter are now in Vietnam, strictly speaking, the High Court in Malaysia does not have the jurisdiction (power) to deal with the custody of the said child since the child is not physically in Malaysia. You may want to talk to your wife if both agreed to divorce in Malaysia and both of you must agree on the issue of custody (whether the child should be under the custody of you or your wife) with reasonable visitation rights to the non-custodian party. You may also want to consult a lawyer in Vietnam regarding this issue if no agreement is reached.
We stay together but is call a ours divorce but we still argue problem including family in law attack ours marriage make me betrayed. We have problem communicate.
If I am not working because we still argue make attack my life & lost my work.
He want fight the case need custody take my 2 kids but he never take care of my 2 kids many 10 years because I own take care of my 2 kids protecting follow mother.
Hi Krystal, we are sorry to hear about your marital issue. It is advisable to seek help from a family therapist first before considering the divorce option especially if there are children involved. More often than not, seeking help from the professional can help to save the marriage.
If you need to seek for legal opinion with regards to divorce, you may contact our lawyer via WhatsApp at https://wa.me/60169473338 for more info.
Hi can I apply for child custody first before serving the divorce papers? I want to secure the custody of my 3 year old daughter before I ask for divorce from my husband. Any advise whats the total fees it cost to apply for child custody?
Hi Lily, yes, you may apply for custody first before you initiate the divorce process if you think that this is in the best interest of the child. You may reach out to our divorce lawyer at https://wa.me/60169473338 for consultation and quotation if needed.