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5 reasons divorced parents may lose child custody in Malaysia

2020-01-21 Default avatar Christina Wong

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This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner whatsoever.

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[Note: This article applies only to non-Muslim divorces. Child custody for Muslims will be handled by the Syariah court]

Divorce is an emotionally-draining process that no one ever wants to go through, and it’s not a rarity in Malaysia. In 2018 alone, there were 10,087 divorce cases between non-Muslim couples in Malaysia. And during the divorce proceedings, arguments can heat up when deciding who gets what from the marriage, and things just get messier when children come into the picture. But unlike property, which can be split 50/50, child custody is not just about being fair to the parents—the child has to be considered too.

[READ MORE: How do Malaysian courts decide which parent gets child custody after a divorce?]

In one of our previous articles, we gave an overview of child custody. Now to dive deeper into this topic, we’ll look into 5 reasons why one parent may not get child custody after a divorce.

 

1. If the child doesn’t want that parent

GIF from tenor.com

Believe it or not, children can choose who to live with. This is because Section 88(2) of the Law Reform (Marriage and Divorce) Act 1976 prioritises a child’s needs above everything else.

“In deciding in whose custody a child should be placed the paramount consideration shall be the welfare of the child...”

However, the children must be old enough to choose which parent they want to follow, as how Section 88(2)(b) of the Law Reform (Marriage and Divorce) Act 1976 puts it:

“...the court shall have regard...(b) to the wishes of the child, where he or she is of an age to express an independent opinion.”

How old is old enough? There isn’t a fixed age for this because the important thing is that the child can decide independently. This means that they must choose which parent to follow without being influenced by any outside party such as a family member.

The case of Yong May Inn v Sia Kuan Seng shows how influence can make a parent lose the child. In this case, the children were three girls aged 12, 10 and 8, and they chose their father because their paternal family members taught them to hate their mother. Because of this, the judge decided that they were influenced to choose their father, and the girls were given to their mother instead.

So, a child can choose, as long as they are not influenced by any family members.

 

2. If the parent sleeps with a married person

GIF from gfycat.com

Picture a situation where Ah Chong and Barbie have a child, and they subsequently divorce. After that, Ah Chong starts having an affair with Cindy who is still married. In this situation, Ah Chong MIGHT lose child custody. We say “MIGHT” because, truth be told, there is no fixed approach for this situation and judges decide this issue on a case-by-case basis.

You get custody

In the case of Goh Kim Hwa v Khoo Swee Huah, the father, who was staying with his mistress, was given custody over his son because:

“...Gary, the eldest, without any hesitation, chose to be with the [father] as he considers that his future lies with him and he is content to keep the present arrangement...”

This shows that despite the mistress’s presence, the fact that Gary chose to be with his father was a good enough reason for the court to allow the father keep him.

You don’t get custody

However, there are times when these parents lose child custody. One such situation is seen in the case of Wong Chen Foh v Lo Yu Kyau, where the mother, who was staying with a married man, could not keep her children because the judge said:

“...in the interest of the infants they should be removed from their present undesirable and unsatisfactory environment.”

Clearly, there are times when judges will decide that such situations are not conducive for the child. So, a parent can keep the children ONLY if the judge decides that the children’s interests is best protected by this parent.

 

3. If the children gets step-siblings or half-siblings

GIF from gfycat.com

The story of Cinderella may be closer to reality than you think, and judges take extra precaution to ensure that the children of divorced parents are not neglected by their stepparents as how Cinderella was.

So if the parent remarries someone who already has a child, or gives birth to a new child from this second marriage, he might not be able to keep any children from the first marriage.

To put this into context, let’s use the case of Manickam v Intherahnee to explain. Here, the father remarried and had a child with his new wife. Then, his son from his first marriage was given to his ex-wife because the judge said:

“...care and attention of the natural mother can be reasonably expected to be superior to that of a step-mother, particularly one who has a child of her own and with every prospect of additions to the family.”

Since a child’s welfare is the most important factor to consider, their feelings towards their stepparents and step-siblings is not taken lightly. And to ensure that sufficient care and attention is still showered over them even after the divorce, a half-sibling from the new marriage will be the reason this newly-married parent will lose custody.

 

4. Young girls are normally given to their mother

GIF from tumblr.com

Some readers might have instinctively known this, but here’s a case to confirm that. In Sivajothi a/p K Suppiah v Kunathasan a/l Chelliahall three daughters (aged 4, 6 and 9) were given to their mother because the judge said:

“...(a) the children being three young girls of tender age require the personal and intimate care of the mother as they grow up;
(b) matters relating to puberty, problems relating to menstruation, physical, psychological and emotional changes can best be attended to by the mother and not by the father;
(c) the mother's touch and physical proximity in time of illness;
(d) there is no substitute for the natural love and affection of the mother...”

Judges are more inclined to agree that there are certain things that a mother can give her daughters, which a father cannot. From a mother’s familiarity with female puberty to her personal touch in a young girl’s tough times, it is very often the case that a mother is the more suitable parent for her daughters.

 

5. If GRANDPARENTS are of a different religion

GIF from gifswithsound2.blogspot.com

In cases where both parents are dead, grandparents would be given child custody. We know that this isn’t choosing between parents per se but it is still a fight to keep the children so we decided to include it in this list.

This scenario happened in the case of S Thaiyalnayagam v G M Kodaguda. Here, the Christian maternal grandmother and the Hindu paternal grandmother fought for child custody after the children’s parents died in an accident. The judge gave custody of the children to the Christian grandmother because they were brought up as Christians before their parents’ death.

As sensitive as the issue is, having the same religion as the child may be the reason why one grandparent is more suitable than the other.

The tapao note: The question of who the children should live with is a very delicate issue because a wrong decision can adversely affect their mental, emotional and psychological growth. So everything that will affect them will be considered and decided on a case-by-case basis in court to secure their best interests.

[This article was written by referring to ‘Resolving Child Custody Disputes: The Law & Practice In Malaysia (2012)’ by Dr Mehrun Siraj]

Tags:
law reform (marriage and divorce) act 1976
adultery
religion
child custody
child’s views
stepchildren
young girls
grandparents
step-siblings
half-siblings
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About the Author Christina Wong

The red-headed intern juggling between this internship and CLP.

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