CHILD CUSTODY IN MALAYSIA PDF

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Summary

This paperwork discusses how child custody in Malaysia plays a role. Besides, examine the factors that are taken into consideration in child custody battle with cases and laws....

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LAC 2583 FAMILY LAW (NON-MUSLIM MARRIAGES) SEMESTER II 2020/2021

LECTURER’S NAME: DR. CHE ZUHAIDA BINTI SAARI

CHILD CUSTODY IN MALAYSIA

TLB7 // KLB 2

PREPARED BY: NAME

MATRIC NO.

WAN NUR A’AINA FARHANA BT MEOR AMIR HAMZAH

1192122

SITI NURAISHAH MOHAMMED KHIR BT ABDUL RAHIM

1192123

TABLE OF CONTENTS 1.0 INTRODUCTION.....................................................................................................................2 2.0 MEANING OF CUSTODY.......................................................................................................2 2.1 WHO MAY APPLY FOR CUSTODY?.................................................................................4 3.0 MEANING OF CHILD.............................................................................................................5 4.0 JURISDICTION OF THE COURT..........................................................................................6 5.0 TYPES OF CUSTODY.............................................................................................................8 6.0 DIFFERENCE BETWEEN MUSLIMS AND NON-MUSLIMS’ CUSTODY......................10 7.0 FACTORS USED TO DETERMINE THE CUSTODY OF CHILDREN..............................10 7.1

THE WISHES OF THE PARENTS AND THE CHILD................................................12

A) PARENTS’ WISHES......................................................................................................12 B) WISHES OF THE CHILD..............................................................................................13 7.2

CHILD’S WELL-BEING...............................................................................................14

7.3

REBUTTABLE PRESUMPTION..................................................................................15

A) TENDER AGE DOCTRINE...........................................................................................15 B) PRESERVING THE STATUS QUO...............................................................................16 7.4

WELFARE OF MORE THAN ONE SIBLINGS...........................................................17

8.0 CUSTODY OF ILLEGITIMATE CHILDREN.......................................................................18 9.0 COMMON MISTAKES MADE BY PARENTS IN FIGHTING CUSTODY BATTLE........19 10.0 CONCLUSION & RECOMMENDATIONS:.......................................................................21 REFERENCES..............................................................................................................................22

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1.0 INTRODUCTION Battle for custody is usually one of the major disputes arising after divorce. Each party, in most cases, the mother and father of the child tries to convince the court that he or she should be given custody instead of the other. Nonetheless, the law provides that the interests or the welfare of the child shall be the paramount consideration and not the interests of the disputing parties. Many factors are considered by the court in determining the welfare of the child based on two important laws which govern matters pertaining to custody in Malaysia are the Law Reform (Marriage and Divorce) Act 1976 (LRA) and Guardianship of Infant Act 1961(GIA) as well as common law cases. In general, application for children’s maintenance under these statutes could be at any time. In the Supreme Court’s case of Saraswathy v Palakrishnan1 the court held that there was no need for a divorce petition to be filed under Section 93 of the LRA 1976 before maintenance order could be made in favour of children. This paper highlights each of the factors considered by the court in order to bring about the ultimate purpose of the law of custody that is the welfare or interest of the child.

2.0 MEANING OF CUSTODY Neither the GIA nor the LRA gives any exact definition of the word ‘custody’. The Interpretation Act 1967 is also silent regarding this matter. However, Section 89(1) of the LRA provides that: (1)

An order for custody may be subject to such conditions as the court may think fit to

impose and subject to such conditions, if any, as may from time to time apply, shall entitle the person given custody to decide all questions relating to the upbringing and education of the child. The above section explains that, subject to certain conditions specified in the custody order, a person who is given custody of a child shall have the right to determine all questions relating to the upbringing and education of the child. From this section, it can be understood that the meaning of custody is not limited to the care and control of the child but also includes the right to determine the upbringing of the child or what is 1 [1986] 2 MLJ 127

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sometimes referred to as legal custody. 2 It seems such a definition was adopted by the courts in various cases even before the LRA came into force. In the case of Chang Ah May @ Chong Chow Peng (f) v Francis Teh Thian Sar,3 the court made an order allowing the custody, care and control of the infant to be committed to the mother. In both cases, the courts used the phrase ‘custody, care and control’ and not the word ‘custody’ simply to show that custody means more than care and control only and that care and control is merely a constituent element of custody. In Winnie Young v William Lee Say Beng,4 the court, however, used the term physical custody as defining what normally means care and control of the child when the court said that ‘the custody of the child be given to the defendant, but the arrangement was that the physical custody of the child was with the defendant’s parents.’ Custody of children is also provided in Section 88 (1) of the LRA which states that, “the court may at any time by order place a child in the custody of his or her father or his or her mother or, where there are exceptional circumstances making it undesirable that the child be entrusted to either parent, any other relative of the child or of any association the objects of which include child welfare or to any other suitable person.” However, the provision of Section 5 of the GIA is quite ambiguous. It is not very clear whether the legislator tries to give the meaning of custody as understood under the LRA or otherwise. Section 5 provides: (1)

In relation to the custody or upbringing of an infant or the administration of any

property to or held in trust for an infant…, a mother shall have the same rights and authority as the law allows to a father… The ambiguity arises due to the fact that the provision seems to distinguish the word custody and upbringing of the child as two separate things. This is because there appear to be three separate items in the section i.e., custody, upbringing and administration of property. If this is what intended by the legislator, the word custody might confine to care and control or ‘physical

2 The term legal custody was used in the case of Tang Kong Meng v Zainon bte Md Zain & Anor. [1995] 3 MLJ 408 at p 415. 3 [1991] 1 CLJ 309 4 [1990] 1 MLJ 123

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custody’ only. Nevertheless, the GIA is similar to the LRA, originates from English law and as has been highlighted before, English cases will be of highly persuasive value in interpreting the law. Most probably the meaning of custody in the GIA will be similar to that in the LRA, taking into account the cases that have been discussed above which were very much influenced by English cases. Thus, it seems here that the word ‘custody’ seems to vary in meaning in different statutes. Even though the common practice seems to refer to it as carrying the meaning of ‘legal custody’, in some cases, for example, adoption cases as shown above it connotes only physical custody. Thus, it is suggested that these uncertainties should be removed by providing a clear definition of the word ‘custody’ in the relevant statutes.

2.1 WHO MAY APPLY FOR CUSTODY? The question here is who gets the custody of a child. In Malaysia, parents are entitled to the custody of their children. Section 88 (1) clearly provides that a father or the mother may be entrusted with the custody of the child. Only when the parents are determined to be unfit by the court, a relative of one of the parents would be appointed. The relative could be the paternal or maternal grandparent, aunt, uncle or even older siblings. In cases of severe child abuse be it physical abuse or neglect, a child welfare center could be vested with the custody of the child. In exceptional cases, the foster parents or babysitter who are found to have been caring for a child could be given custody. An analysis of reported custody cases showed that custody was awarded in the following percentage, mothers (67%), fathers (27%) and non-parents (4%). While Section 5(2) of the GIA provides “the mother of an infant shall have the like powers of applying to the court in respect of any matter affecting the infant as are possessed by the father." By referring to the case of Amarapathi a/p Periasamy v Muniandy al Periasamy,5 the Federal 5 [2006] 5 MLJ 126

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Court concluded that the right to apply for custody as provided under Section 88 of the LRA is only limited to the parents of the children of the marriage. Thus, other persons other than parents have no right to apply for custody under LRA. The court observed: The factual matrix of the current appeal does not fit within the subsection's scope. The child's original parents are not fighting for custody instead, her aunt and her father are at conflict. The appellant cannot claim to fit into the shoes of a parent as the 1976 act makes no provision as to the custodial right of a foster parent which the appellant claims to be. The Federal Court also held that GIA does not have the jurisdiction to hear cases from other than parents. Having established that both LRA and GIA do not apply to third party, the important question arises how can the rights of other persons be protected? Other persons may include grandparents as can be seen in the cases of Chuah Thye Peng & Anor v. Kuah Huah Oong6 or other relatives such as an aunt as illustrated in the above case.

3.0 MEANING OF CHILD Child can be defined as a young human being below the age of full physical development. The age requirement of a child varies and is subject to any specific legislation and areas of law. For instance, the minimum age of a child to consent differs from the age of a child under adoption or to determine a criminal liability. Therefore, there is no definite definition of a child, and it has been used for persons under the age of fourteen, sixteen and sometimes eighteen years old. Art 1 UNCRC defines a child by stating that “For the purpose of the present Convention, a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier”. In Malaysia, definition of child is provided under Section 2 of the Child Act 2001. It covers a person under the age of eighteen years and in relation to criminal proceedings, the person must attain the age of criminal responsibility as prescribed under Section 82 of Penal Code which is10 years old. As the conference focuses on the welfare of the child, the definition of a child 6 [1978] 2 MLJ 217

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under Malaysian law is pertinent. Meanwhile, the Age of Majority Act, 1971 in its Section 2 states that “the minority of all males and females shall cease and determine within Malaysia at the age of eighteen years and every such male and female attaining that age shall be of the age of majority.”. A child is therefore a person who is under the age 18 years. Besides, Section 87 of the LRA states that “child” has the meaning of “child of the marriage” as defined in Section 2 who is under the age of 18 years. Section 2 of the LRA states that “child of the marriage” means: 1.

a child of both parties to the marriage in question; or

2. a child of one party to the marriage accepted as one of the family by the other party; and 3. “child” in this context includes an illegitimate child of, and a child adopted by, either of the parties to the marriage in pursuance of an adoption order made under any written law relating to adoption. A child of marriage can be categorised into three groups based on the section provided above: 1. Accepted child - If A and B are parties to a valid marriage, the child of the man A, who is accepted as one of the family by the woman B is regarded as a child of marriage. 2. Adopted child - If C adopts a child under the Adoption Act 1952 by an adoption order during C’s marriage to D, the child will be regarded as a child of the marriage. 3. Adopted illegitimate child - similarly, if C has his own illegitimate child born before a registered marriage whose mother is his former girlfriend, E or his current spouse, D, C can adopt the child by an adoption order under the Adoption Act 1952 prior to or during his marriage to D. Upon C’s marriage to D, the child will be regarded as child of the marriage.

4.0 JURISDICTION OF THE COURT The court's jurisdiction to deal with custody cases is conferred by both the GIA and the LRA. Section 5(2) of the GIA provides that,

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“... the mother of an infant shall have the powers of applying to the court in respect of any matter affecting the infant as possessed by the father.” Section 2(1) of the same Act defines 'court' as 'the High Court or a Judge when sitting in open Court.’ Section 88(1) of the LRA further states, “The courts may at any time by order place a child in the custody of his or her father or his or her mother....”. Section 2(1) of the same Act defines 'court' as 'the High Court or a judge thereof or, where a President of the Session Court has jurisdiction by virtue of subsection (2), the Session Court or President of that Count In practice, it seems that so far, all custody cases have been dealt with by the High Court. Section 23 and 24 of the Courts of Judicature Act 1964 (hereinafter referred to as CJA) also provide the court the jurisdiction to deal with custody cases. Extent of power of Malaysian Court to grant relief in divorce, custody and access cases is provided also in Section 48 of LRA which reads: (1)

Nothing in this Act shall authorize the court to make any decree of divorce except: (a)

where the marriage has been registered or deemed to be registered under this Act; or

(b) where the marriage between the parties was contracted under a law providing that, or in contemplation of which, marriage is monogamous; and (c) where the domicile of the parties to the marriage at the time when the petition is presented is in Malaysia. The Court is deemed to have a jurisdiction to hear the petition for divorce and application for custody and access if either combination of provision in sub-sections (a) and (c) or sub-sections (b) and (c) are satisfied. In an international or mixed marriage, for example, if a Japanese man marries a Malaysian woman and the Malaysian woman or her Japanese husband chooses to file a divorce petition or a 7

custody or access application in a Malaysian court, Section 48 of the LRA must be achieved. The following scenarios could occur: I.

Section 48 (1) (a) - A non-Muslim Malaysian woman married a Japanese man and they have registered the marriage in Malaysia. OR

II.

Section 48 (1) (b) - A Malaysian woman married a Japanese man and they registered the marriage in Japan which country practices monogamous marriage. AND

III.

Section 48 (1) (c) - both parties must have domicile in Malaysia - the Japanese husband must have changed his domicile (of choice) to Malaysia. So, only if the Japanese husband establishes his domicile in Malaysia will the court accept his petition for divorce and determine issues of child custody, access and maintenance.

5.0 TYPES OF CUSTODY There are two types of custody which are sole custody and joint custody. The term sole custody means that only one party is given the care, control and custody of the child while the other party is given the right to access. As highlighted above, in sole custody order, only the one who is given custody will usually have the right to determine the upbringing and major decisions including religion, education and healthcare of the child. This will essentially ‘freeze’ the other parent out of any decision-making. This is obviously a very extreme situation, and it is rare for a court to impose a sole custody order. Sole custody arrangements are only ordered where one parent presents a risk or danger to the child. For example, where they are a drug user or have been convicted of child abuse or child sexual offenses. In many sole custody arrangements, the courts will allow the non-custodial parent to have visitation with their child. Again, this depends on the circumstances, and, in some cases, visitation may be denied if the court believes it is not in the best interest of the child.

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Whereas Joint custody or shared parenting is a situation where both parents continue to have an active parenting role despite the divorce. This means that even though care and control is given to one parent, the other parent retains his or her rights and responsibilities to get involved with the children's upbringing. Thus, considering the interests of the child, joint custody order may be considered as the better alternative. In some joint custody arrangements, however, the court will grant both parents physical and legal custody. This means the child will spend equal time staying with mother and father at their respective houses. Whether a court grants physical custody solely with one parent or splits it between both depends entirely on the unique facts of each case. However, there are many different options available to the courts, and they can impose a range of different restrictions on both joint and sole custody arrangements. This means that no one joint or sole custody arrangement will be the same as another. In fact, each one is ordered on the unique circumstances of a particular case. In Mohan Raj St Patmanathan v Prema Rani a/p Kandiah Ponnampalam & Anor7 case, joint legal custody was ordered by the count to both parents while care and control was given to the mother. In Karen Cheong Yuen Yee w Phua Cheng Chuen,8 the court not only ordered joint legal custody but also joint care and control of the children. The court pointed out that such an order is proper in this case as the parties lived closely from each other and there is no proven violence. Nevertheless, there are a few situations where joint custody seems to be inappropriate. In Teh Eng Kim's9 case, the Federal Court refused to grant joint custody order as applied by the father as the children and the father were living in different jurisdictions. Another reason might be attributed to the state of existing relationship of the parties as illustrated in the case of Kok Yoong Heong v Choong Thean Sang.10 Because of the bitterness and acrimony between the spouses, the court ruled that shared custody was not appropriate in this situation. Such an injunction would not be in the best interests of the children in this situation.

7 [2005] 4 MLJ 444 8 [2004] 7 CLJ 102 9 [1977] 1 MLJ 234 10 [1976] 1 MLJ 292

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6.0 DIFFERENCE BETWEEN MUSLIMS AND NON-MUSLIMS’ CUSTODY Firstly, one of the issues in child’s maintenance is the duration of custody or i.e., the maximum age of a child in which a father is still responsible over the maintenance. Under the Civil law, there is no provision which requires the parent to provide maintenance if the child is pursuing his/her tertiary education. The Islamic Family law, however, provides eighteen years old as the maximum age for a child to still be entitled to maintenance. It is also provided that if the child is pursuing his/her tertiary education, a claim for the e...