Introduction
When people get married, children are part of the equation. When people get divorced, children are part of the situation. And courts resolve the situation by making orders for custody of children.
In another article on this site, we wrote about access to children. We described “custody” as the right of a party to have the children stay with her or him. Access is the right given to the other party to meet the children.
Custody of children aged 7 years old or less
Generally, mothers will get custody of young children aged 7 or below. This follows section 88(3) of the Law Reform (Marriage and Divorce) Act 1976 (LRA 1976). But it’s only a presumption, and a rebuttable one at that.
The court can take into consideration the facts of the case. The court will also need to take into consideration, “the undesirability of disturbing the life of a child by changes in custody.” If the father has been having custody all the while, it may be bad for the child if the wife were to get custody. And that is the situation the court can consider.
Wishes of the child
The court can consider the wishes of the child, when “he or she is of an age to express an independent opinion”. (Section 88(2)(b), LRA 1976). Hypothetically, the law allows children to decide who they want to follow.
But what age is acceptable to the court, is not stated in the LRA 1976. So, it appears that the court will treat each case on its merits. Perhaps the court will need to gauge how the child in each case understands the situation.
And again that will depend on whether the child can “express an independent opinion.”
Don’t Separate the Children?
Malaysian law allows the courts to decide, what the best arrangement for the children will be. And in the case of a family with more than one child, the courts are not compelled to give custody of all children to one party. Custody of the children may be given to the other party, if the court feels that it is better for the child. (See section 88(4) LRA 1976).
So, it is possible that an order for custody of children will give one child to one parent, and another child to another parent.
Abduction of Children
Sometimes, fathers may abduct their children when they cannot get custody or access.
In 1992, Malaysian prince Raja Bahrin visited his ex-wife in Australia to see his two children, Iddin and Shahira. During the trip, the father brought his children from their Melbourne hotel to the coast of Queensland. From there, they were boarded a boat to Indonesia, and then to Malaysia. It was abduction, and the children did not see their mother until 14 years later.
In 2009, a Malaysian Indian lady named Indira Gandhi and her ex-husband were having marital problems. They had been married for 16 years, and she had three daughters. Indira’s ex-husband took the youngest daughter away forcibly, and converted the child to Islam. Indira’s ex-husband sought an order from the Syariah court that he was entitled to sole custody of the child based on his religion. (Since his wife did not convert, she was a non-Muslim.) A court battle ensued for the following nine years. The court gave custody of the daughter to Indira Gandhi, and ordered her ex-husband to the child to Indira. The High Court in 2014 said that the ex-husband could be charged for contempt.
These are just some examples of what could happen.
The paramount consideration in custody of children
Past decisions hold that a mother should be given custody during the child’s period of nurture, until the child attains seven years. (Ref: Amar Kaur Ram Singh v Najar Singh Sagar Singh [1992] 2 CLJ 807, Yong May Inn v Sia Kuans Seng [1971] 1 MLJ 280, Sivajothi K Suppiah v. Kunathasan Chelliah [2000] 3 CLJ 175, Mahabir Prasad v. Pushpa Mahabir Prasad [1982] 1 MLJ 189; [1981] CLJ 174).
In Viran Nagapan v Deepa Subramaniam & Other Appeals [2016] 3 CLJ, [2016]; 2 AMR 1 the Federal Court held that the paramount consideration in determining the custody of a child is the child’s welfare.
The paramount consideration is not measured by money nor physical comfort only. Welfare must be taken in its widest sense to include the moral and religious welfare of the children and their physical wellbeing. (Ng Say Chuan v Lim Szu Ling [2010] 4 MLJ 796; [2010] 10 CLJ 371; Chan Eng Lim & Ors v Camille Yap [2014] 10 MLJ 35; [2013] 1 LNS 861)
Consent Orders for Custody of Children
Section 96 of the LRA 1976 provides that the court may at any time and from time to time vary, or rescind, any order for the custody or maintenance of a child, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.
A consent order can be varied: Ooi Siew Yook & Ors v Lim Bar Kee [1987] 2 MLJ 267; [1987] 2 CLJ 237. An order obtained ex parte may be set aside on the ground that the petitioner did not make a full and frank disclosure of the facts to the court: see Chong Lay Kwong v Lim Lay Kuan [2001] MLJU 137; [2001] 2 CLJ 492; PECD Bhd & Anor v AmTrustee Bhd and other appeals [2010] 5 MLJ 357; [2010] 1 CLJ 940.
Custody Order from a Shariah Court
Going back to the earlier case of Indira Gandhi, what if a husband has an order from a Shariah Court giving him custody rights over the child?
The Federal Court in the case of Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals [2008] 2 MLJ 147; [2008] 2 CLJ 1 ruled that ‘… by contracting the civil marriage, the husband and wife were bound by the Law Reform Act in respect to divorce and custody of the children of the marriage, and thus, the civil court continues to have jurisdiction over him, notwithstanding his conversion to Islam.’
The Federal Court’s decision was followed by the Court of Appeal in Viran a/l Nagapan v Deepa a/p Subramaniam (Peguam Negara Malaysia & Anor, intervener) [2015] 3 MLJ 209. The Court of Appeal held, “It does not matter that the appellant has converted and that he has a custody order from the Shariah Court. The decision of the Federal Court is clear. So long as he contracted a civil marriage and the children are born out of civil marriage, the Shariah Court has no jurisdiction. The issue raised by the learned SFC as to whether the High Court prevails over the Shariah Court did not arise.”
So, in such a case, it seems that the civil courts have precedence over the Shariah court.
Legal Disclaimer
This article was prepared to provide general information only, and was not intended to constitute legal advice. If you wish to talk with a lawyer about your case (which is recommended), please feel free to contact our office.