Divorce : Child Custody Care & Control

Custody, care and control of the children of the marriage

When a couple makes a decision to end the marriage, naturally the next issue that comes into the place is the custody, care and control of the children of the marriage.

In Malaysia, the law that governs the issue of the custody, care and control of the children of the marriage is the Law Reform (Marriage and Divorce) Act 1976. This statute, specifically provisions contained in Sections 88 and 89 caters for the issue of custody, care and control of the children of the marriage.

Either of the parent of the children of the marriage can apply to the court to obtain the custody, care and control of the children of the marriage and upon such application, the court will consider the children’s welfare and well-being as paramount importance. This includes taking into account the children’s wish and the parent’s wish as well and other circumstances that factor into the welfare and well-being of the children. In considering these, the court will effectively look into the mental, emotional and physical well-being of the child, the child’s own wishes where he or she is in a position to express his or her opinion freely. Of course, this is provided that the child is able to do so without being influenced by the parent, relatives or anyone else in a position to do so to the child.

In most cases, the court is also quite careful in taking to consider not to change the status quo of the child’s current living circumstances as any change may drastically impact upon the well-being and welfare of the child.

What is the meaning of custody, care and control?

Custody generally means the physical custody of the child, while care, in its natural meaning means the responsibility of taking care of the child’s essential needs. Control is the right to decide on matters pertaining to the child’s upbringing.

In usual circumstances, the court will grant joint custody, care and control of the children to both parents; taking into account the factor that the children ought not to be deprived by either of their parent as in most cases, the children had grown up and spent a good deal of their childhood with both of their parents. However, this varies from case to case and the court will consider each and every case based on its own facts and evidence presented before it.

Where a specific case warrants a sole custody, care and control of the child, the court may grant right of access to the parent whose been deprived of the custody, care and control of the child. Right of access allows a parent to see the child at a designated place and time; for example, an overnight weekend access to the child whereby the parent can take the child to stay with him or her over the weekend and return the child back to the other parent once their access ends.

The Law Reform (Marriage and Divorce) Act 1976 provides that for a child under the age of seven, the custody, care and control of the child vests on the mother of the child. However, this is a rebuttable presumption by which if the father (upon his application to court for custody, care and control of the child) is able to prove to the court that the mother is unfit to care for the child, then the court will grant the father the sole custody, care and control of the child.

Children’s maintenance

Whereupon a parent commences an application in court to obtain custody, care and control of the children, the said parent has the right to seek to demand the other parent to pay for the maintenance of the children. In most cases, it is the mother of the children who seeks such a relief from the court to compel the father of the children to pay a sum every month for the children’s maintenance. This is to assist the mother (or the father, as the case maybe) to support and share the costs of upbringing the children.

Guardianship of the children

In deciding the issue of custody, care and control of the child, the court will also decide on the issue of guardianship of the child. Essentially, right of guardianship accords the parents the right to decide upon the child’s fundamental needs, specifically on matters pertaining to the child’s education, health and religion. In most instances, the right of guardianship is granted to both of the parents as the parents, regardless of the issues and animosity between them, share the responsibility of taking care and looking after their child until the child attains the age of eighteen, whereupon the child is considered to be an independent adult to make decisions on their own.