Most divorced spouses frequently engage in another battle known as a custody dispute. The Law Reform (Marriage and Divorce) Act 1976 (“LRA”) and the Guardianship of Infant Act 1961 (“GIA”) are two major acts that address custody issues in Malaysia. When determining which parent should be granted custody of a child, both acts stipulate that the kid’s best interest or well-being shall take precedence.
This is in line with Article 3 of the United Nations Convention on the Rights of Child 1989, which provides as follows:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the child’s best interests shall be a primary consideration.”
In contested child custody cases, the court will assess what is best for the children despite the good intentions of both parents and their competing desires. While making a custody determination, the court will consider several criteria with the ultimate objective of safeguarding the child’s welfare or interests.
No statute has yet provided the exact definition of the term “custody”. The word “custody” is not defined in either GIA or LRA, Section 89(1) of the LRA, however, provides that:
“an order for custody may be subject to such conditions as the court may think fit to impose and subject to such conditions, if any, as may from time to time apply, shall entitle the person given custody to decide all questions relating to the upbringing and education of the child.”
The above part of the law says that a person given custody of a child has the right to make all decisions about their upbringing and education as long as they are not against the custody order. So, custody is more than caring for and controlling the child. It also includes the right to decide how the child will be brought up and how their education will be planned.
The case of Mahabir Prasad v Mahabir Prasad outlined the factors that must be considered to decide on child welfare.
“Indeed, to decide on the question of the welfare of an infant as of paramount importance, it is necessary to take into account such matters as the conduct of the parties, their financial and social status, sex and age of the child, the child’s wishes, confidential reports by social welfare officer……”
Section 11 and subsection 88(2) of the GIA and LRA stipulate that the parent’s wishes are statutory requirements when deciding custody. These clauses show the value of parental wishes in custody disputes. Therefore, the question arises regarding how closely the court will listen to the parent’s preferences and wishes. The parents’ wishes will have practical significance only if they coincide with the interests of the children.
The courts will consider each parent’s wishes, but that does not mean they will be granted. Parents’ wishes will be evaluated, but their rights as parents will be superseded if their wishes jeopardise their children.
In Chuah Thye Peng & Anor v Kuan Huah Oong, it was determined that instead of the maternal grandparents, the infant’s paternal grandparents should be given custody since they would raise him as a Buddhist, which would have been the parent’s wish if they were still alive.
The LRA has made it a requirement that the court factor in the preference of a child who is old enough to have an independent opinion regarding which parent should have custody of the child. Section 88(2) of the LRA requires the court to consider the following:
(b) the child’s wishes, if they are old enough to have an independent opinion
The court in Teh Eng Kim’s case followed the guidelines outlined in Section 88(3) of LRA, which provide that the wishes of children older than seven (7) years are reasonable and that children of such an age are presumed to be old enough and able to communicate their wishes. As a result, the court followed the wishes of two children, ages ten (10) and fifteen (14), while formulating their custody verdict.
Yet, when assessing the child’s wishes, the court recognises that those wishes may be influenced by the actions of others (i.e. the parents and the relatives). In Chan Bee Yen v Yap Chee King, the court believed that the child’s preference to stay with his father was not an autonomous opinion and, as a result, was unreliable, as there was a potential that the boy was being manipulated and persuaded by his father and his family.
Children, as well as parents, can suffer mental and emotional scars as a result of divorce. A child’s optimal growth and physical, moral and emotional development can only be achieved in a setting that provides safety, love, security and support. Hence, the court will apply a broad interpretation of “welfare” while making a custody order. This covers the physical, moral and emotional well-being of the children.
A child’s health and development are greatly aided by safe and stable home life. In the case of Lee Soh Choo, the mother could not convince the court that she had a safe and suitable environment for the kid to live in if she were awarded custody.
However, the law also stresses the importance of meeting the child’s moral and emotional needs, as seen in L v. S, where it was decided that although both parents could provide a proper physical environment for the child (based on the homes they offered), custody should be awarded to the mother because she was better able to care for the child in the light of the child’s best interests. At the same time, the father was a bad-tempered and violent person.
The cases above show that the court places a weight on the child’s physical, moral and emotional well-being, but both LRA and GIA contain nothing about this factor. It has been proposed that this factor be included in the act to stress the necessity of this factor in determining the child’s interest.
Regarding child custody, the status quo refers to the parents’ agreement before the custody hearing. In dealing with the retention of the status quo, courts typically consider the following factors:
1. The length of time spent by the child with the familiar person.
2. Whether the status quo change would provide better or significant improvement to the child’s welfare.
3. Medical evidence submitted by the disputing parties.
4. Surroundings and the way of life that the child is accustomed to
To a certain extent, the parents’ conduct will impact custody cases. The court will often look out for violent, dangerous, irresponsible behaviour, which undoubtedly will affect a child’s interest. In L v S, the court came to the opinion that it would not be in the best interests of the child to be brought up by the father, who was a person of a ‘volatile and uncontrollable temper with a propensity to resort to impulsive, violent and dangerous behaviour.’ The court will also examine the parents’ physical and mental fitness as these will mirror their ability to look after their children.
Section 100 of the LRA provides that the court is required to seek the opinion of the welfare officer as a point of reference whenever it is reasonable to make a judgment in a custody dispute. The reports and recommendations of the Welfare Department and opinions of the welfare officer may or may not be followed by the court. Still, they are considered valuable sources of information in arriving at a fair and speedy decision.
Some of the facts that the welfare officer would be expected to research include the following:
When parents fight over custody of their children, the well-being and future of the children are both put in jeopardy. In consideration of this, the court will exercise its authority and discretion in assessing what is in a child’s best interests by considering the elements outlined above. Nonetheless, the welfare of the kids will always be the main objective in a custody dispute, which is true in every court worldwide. However, no two marriages are alike. Hence, each case will be treated and evaluated based on its facts.