Misconceptions about Child Custody in Malaysia
It is wrong to assume that a child custody always belongs to the mother. In fact, the Guardianship of Infants Act 1961 (GIA) states that a mother and a father have equal rights and authority over a child.
How Child Custody Decisions are made?
Following a divorce, the parents are encouraged to first negotiate or use mediation to decide whether it’s a full child custody, limited reasonable access or joint custody by both parents.
If the parents are unable to reach an amicable decision, the parent can apply to the Family Court for child custody. The Court will make a decision based on the “best interest of the child.”
What is a child’s best interest?
- Best interest – the welfare of the child – both physical and mental welfare, is of paramount consideration to the court.
- The wishes of the child – the court will consider the child’s wishes, if he/she is capable of expressing an independent opinion;
- Ability of the parents to raise the child – child custody may be awarded to other family members, relatives or local welfare department if it is proven that the birth parents are incapable of caring for the child.
- Other relevant factors – such as the relationship between the parents and the child.
Extra facts: There is a presumption that where the child is below 7 years old, it is in the child’s best interest to be under the care of the mother. This presumption is rebuttable depending on reasonable circumstances. The father of the child would have to prove that his spouse is an unfit mother.
