Difference Between Guardianship & Custody Law In Malaysia
Divorce & Custody of Children in Malaysia
Divorce is an uncomfortable topic, but unfortunately, some marriages simply do not work out. Sadly, when a marriage breaks down, that often takes a toll on the children in the marriage. With the growing number of failed marriages in Malaysia, questions of guardianship and custody of children below the age of maturity have become increasingly important. So, what is the difference between guardianship and custody law in Malaysia?
The Law On Guardianship & Custody in Malaysia
The Guardianship of Infant Act 1961 (GIA) and the Law Reform (Marriage and Divorce) Act 1976 (LRA) help explain the difference between guardianship and custody in Malaysia. Under the GIA, a guardian has the responsibility to care for the child, including the child’s support, health, and education. A guardian also manages the child’s property to protect it or use it for the child’s benefit.
The law generally assumes that both parents are guardians while they are married and living together, so they share equal rights to custody. If the parents cannot care for the child, other laws like the Adoption Act 1952 and the Registration of Adoptions Act 1952 allow other people to become guardians. In all these laws, the guardian is responsible for the child’s custody, which means caring for the child, making decisions about their upbringing, and providing a safe home.
Difference of Guardianship & Custody Law in Malaysia
There is no strict legal difference between guardianship and custody in Malaysia, and the terms often overlap. Generally, a guardian is someone who has the main responsibility for a child’s welfare and long-term care. Guardianship is broader because it includes custody, upbringing, and managing the child’s property. However, many parents focus more on custody because it allows them to live with the child.
In a divorce case, the court may give custody to a person who is not the guardian, depending on what is best for the child. This means the guardian may still make important decisions, while another person handles the child’s daily care. The law allows the court to decide different arrangements, such as joint guardianship and custody, or giving guardianship to one parent and custody to the other. In rare cases, if both parents are not suitable, custody may be given to relatives or welfare organizations.
Custody Law in Malaysia
In Malaysia, custody law focuses on what is best for the child. If the child is below 7 years old, the court will usually give custody to the mother. If the child is above 7 years old, the court will decide based on the child’s welfare and what is best for the child. The court will consider the child’s safety, needs, and relationship with each parent. If you want to learn more about how a father can improve his chances of winning custody, you can read our guide on how fathers can win custody in Malaysia.
Conclusion
In simple terms, guardianship (also known as legal custody of the child) is where the guardian(s) shall have final say on all important decisions towards the upbringing and welfare of the child. On the other hand, custody (also known as physical custody) is where the custodian shall have responsibility on actual physical care of the child.
A custody battle can be intense and emotionally charged affairs, especially for the children, hence the welfare of the child is always a primary concern for the courts in deciding a custody order.
Parenting is a lifelong commitment that starts with having a child, and does not end along with the divorce. If there are issues of childcare arising in a divorce application, it is always better to seek professional legal help to settle matters efficiently and effectively.
