Guardianship of Children – An Introduction
When John (not his real name) discussed divorce with his wife, Ling (not her real name), the topic naturally turned to their child, Ah Boy (not his real name).
Ah Boy was only 5 years old. In Ah Boy’s best interests, they would allow Ah Boy to stay with his natural mother, Ling. In other words, Ling would get custody of Ah Boy, with reasonable rights of access given to John.
The lawyer also suggested that guardianship of Ah Boy should be shared between them.
“What is guardianship of children?” John and Ling asked their lawyer.
“Guardianship of children is the right to decide on the major issues in your child’s life,” the lawyer told John and Ling. “To decide on which school he is going to be enrolled in. To give permission to the teacher to bring Ah Boy for a school trip. To give permission to a doctor to operate.”
“I hope you understand,” said the lawyer, “this guardianship ‘thing’ is more about your child, than it is about you.”
Ling spoke up. “I want full guardianship rights, because I might migrate.”
John, who had kept his silence, also spoke. “I want shared guardianship rights, because I want a say in Ah Boy’s life.”
The lawyer shook his head slowly. It was always a question of personal ego. He hoped John and Ling would come to think of guardianship as the rights of their child, Ah Boy, and not so much their personal rights.
Guardianship of children – Is it important?
If you have to ask whether guardianship is important, let us tell you that it is. It is important.
When you are a guardian of a child, you have a say in the child’s life. Just like John wanted to have a say in Ah Boy’s life, that is a valid point.
You see, when your child goes into the emergency ward, you need a parent or a guardian to sign off on the consent form. (See this consent guideline from Malaysian Medical Association, for example.)
When you want to enroll your child in a school, you need a parent or a guardian to consent to enroll him or her in that school. (See, for example, this enrollment and withdrawal terms from Garden International School.)
In January 2018, the Malaysian Federal Court declared that both parents’ consent must be obtained before a child’s religion can changed to Islam. A technical point arises from the case in question (M Indira Gandhi v Riduan). Did the child’s conversion take place during the term of the marriage, or after the divorce?
If both parties had divorced but retained shared guardianship rights, it may be that both had equal say over the religion of the child.
We could go on about the religion of the child in divorce, but that is reserved for a separate post.
Who can exercise guardianship rights?
Normally, it is the parents of the child who has guardianship rights over the child.
But in case of a divorce, one parent will usually get custody of the child. In that case, it is usually expected that the party with the custody of the child will have guardianship rights.
When the parties have cool heads, and are able to reason that they want the best for the child — guardianship can and should be shared by both parties.
In some cases, both parents may not be around to exercise their guardianship rights.
As an example, let’s imagine the following scenario. John and Ling were arguing over the terms of the divorce. They ended the meeting with their lawyer without coming to any concrete agreement on the terms of the divorce.
Halfway driving home, their car skidded on the slippery road, plunging them into a ditch, where their lives ended instantly.
Without John and Ling in the picture, Ah Boy’s relatives now have to decide who shall take guardianship (and custody) of the child. The relatives of the child are free to apply to court, and the court will give an order upon such terms it think best for the child.
If Ah Boy’s grandparents were still around, perhaps they might be the best party to take care of Ah Boy.
Now imagine a different scenario. Imagine that John and Ling did not die, and Ling got full custody (and guardianship) rights over Ah Boy.
Not long after the divorce was finalized, Ling was diagnosed with lung cancer, and she died six months after her initial diagnosis.
Under the law, John (the surviving parent) would automatically get guardianship over the child.
But John might need to share guardianship rights over Ah Boy with whoever Ling nominated in her will.
If John were to refuse to become Ah Boy’s guardian, Ling’s nominee (perhaps her sister, Kuan) would get full guardianship.
Section 6 and 7 of the Guardianship of Infants Act 1961 hold more details.
Contact us if you need advice regarding guardianship of children in Malaysia.