Understanding Child Custody & Guardianship of Infants in Malaysia
1 The meaning of child custody is silent. Both in the Guardianship of Infant Act 1961 (GIA) and the Law Reform (Marriage and Divorce) Act 1976 (LRA). There are three types of custody which includes legal custody, physical custody and access or visitation rights.
Original custody of the child
2 In Malaysia, the law places both the parents in a marriage the custody of the child. The father or the mother of the child can apply to the court at any time to get the custody of the child.
Meaning of a child of marriage
3 Section 2 of LRA states that a child of the marriage means a child of both parties to the marriage in question or a child of one party to the marriage accepted as one of the family by the other party, including illegitimate child, adopted child of either of the parties to the marriage.
Who can apply for custody of a child?
4 Law Reform (Marriage and Divorce) Act 1976
4.1 Section 88(1) of LRA states that the court may by an order place a child in the custody of the father or the mother or if there are exceptional circumstances making it undesirable that the child be entrusted to either parent, the court may place the child in the custody of any relative of the child, association of objects including children welfare, or any other suitable person. This means that the parents of the child, relatives, welfare association and other person can apply to the court to get the custody of the child.
5 Guardianship of Infants Act 1961
5.1 According to Section 3 of the GIA, the guardian of the person of an infant shall have the custody of the infant and shall be responsible for his support, health and education of the infant. Section 5 of the GIA states that a mother shall also 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. This means that not only a father can be the guardian and therefore have the custody of the child, but the mother also have the same right to be the guardian and also held the custody of the children.
6 Welfare of the Child – A Paramount Consideration
6.1 Section 88(2) of the LRA also provides that in deciding where the custody of a child should be placed the paramount consideration shall be the welfare of the child and subject to this the court shall have regard to the wishes of the parents of the child and to the wishes of the child, where he or she can express an independent opinion. This is same as section 11 of the GIA which provides that a judge may in exercising the powers conferred by this GIA have regard primarily to the welfare of the infant and consider the wishes of the parent or both parents.
6.2 Although the LRA 1976 provides that the court needs to consider the wishes of the parents and also the wishes of the child, priority is given to the welfare of the child when deciding the order of custody.
6.3 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 is familiar with him, 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  2 MLJ 59, the natural mother had asked for custody of her son from the foster parents who had been taking care of him since he was 9 days old for almost two years. The High Court place the custody of the child to the foster parents because the foster parents had taken care for the infant with love and affection.
Difference between Custody, Care and Control of the Child
7 In the case of Helen Ho Quee Neo v Lim Pui Heng  2 MLJ 51, Arulanandom J. stated that there is a difference between “custody” and “care” and “control” of the child. Physical control of the child is the care and control of the child. While legal custody, includes the right to determine all questions relating to the upbringing and education of the child. In the case of Chang Ah May @ Chong Chow Peng (f) v Francis Teh Thian Sar  2 CLJ Rep 412, the Kuala Lumpur High Court gave an order for custody, care and control of the infant to the mother. According to Normi Abdul Malek, the court used the phrase ‘custody, care and control’ and not only ‘custody’ shows that custody means more than care and control only. Care and control are merely constituent element of custody.
7.1 The difference between custody and guardianship is that in guardianship it includes custody, upbringing of the child and administration of child’s property.
Presumption of custody
8 There is a presumption of custody under section 88(3) of the LRA that custody of a child below 7 years old shall be vested with the mother for the good of the child. But this presumption is rebuttable. The court needs to consider the surrounding circumstances while applying this presumption and the court is not bound to place all children of a marriage in a custody of the same person. The welfare of the children needs to be determined separately.(Section 88(4) of LRA)
Conditions of custody and right of person given custody
9 Section 89(1) of the LRA provides that the order for custody may be made subjected to such conditions as the court may think fit to impose conditions and the person given custody shall be entitled to decide all questions relating to the upbringing and education of the child. By virtue of this section, a person who has been granted custody of the child is given a right to decide the way of upbringing and education of the child as well.
Visitation or access right
10 The order may also provide for the child to visit a parent or give the parent deprived of custody the right to access to the child pursuant to Section 89(2)(d) LRA. According to Rule 76(2) of the Divorce and Matrimonial Proceedings Rules 1980 (Rules 1980), the application by the petitioner or respondent for access to a child need to be applied to the registrar and if the other party consents to the access, then the registrar can determine to what extent the access is to be given. This is the visitation or access right of the parent of the child who did not have the custody of the child.
Custody to be decided at the time of divorce/judicial separation
11 Custody for children is one of the matters that the court needs to decide at the time of the divorce or judicial separation as stated in Section 90(1) of LRA. If the respondent would like to challenge the custody of children he shall state in the acknowledgment of service of petition in Form 6 of the Rules 1980. The father or the mother of the child may apply for an order declaring either parent to be a person unfit to have custody of the child. This will cause the unfit parent not be entitled to the custody of the child. The court may still vary or rescind the order for the custody on application of interested person. And if it is reasonable and for the welfare of the child, the court can vary the terms of agreement relating to the custody of children. The order for custody of child will expire when the child reaches 18 years old.(Section 95 LRA)
12 The order of custody may prohibit the person given the custody from taking the child out of Malaysia. This is applied where the matrimonial proceeding is pending or when one parent has custody of the child to the exclusion of other. The court can issue an injunction restraining the other parent from taking the child out of Malaysia as provided in section 101(1) of LRA. This is also provided by Rule 77 of the Rules 1980.
Reference to welfare officer
13 The court shall take the advice of some person who is trained or experienced in child welfare when considering questions relating to the custody. However, the court is not bound to follow the advice given by these welfare officers.(Section 100 of LRA) Rule 78 of the Rules 1980 provides the same.
14 In conclusion, the child custody can be applied by anyone at anytime. The custody of the children of a marriage is normally be determined at the time of divorce proceedings of the marriage. The court will consider factors such as welfare of the child, the child’s best interest, conduct of the parties, financial status, wishes of the child and the parents, preservation of status quo of the child as well as physical, moral and emotional well being of the child in granting the custody to the parties. The utmost priority is the welfare and best interest of the child.
THE NATIONAL UNIVERSITY OF MALAYSIA, UNIVERSITI KEBANGSAAN MALAYSIA