[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.
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
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.
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:
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
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.
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:
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.
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:
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
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:
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
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 Chelliah, all three daughters (aged 4, 6 and 9) were given to their mother because the judge said:
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
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]