Custody battles of children in a separation or divorce proceeding can get very ugly when both father and mother want sole custody of their child/children. The Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”) provides that “child” has the meaning of child of the marriage who is under the age of eighteen years of age.
The ideal situation would be where both parties come to an amicable agreement as to who has custody of the children or conclude that there shall be joint custody of the children. Custody involves the legal custody, physical care and control over the children.
If no agreement has been reached then the courts have the power to make an order for custody. The court may place the child in the custody of either parent or in exceptional circumstances any other relative of the child or of any association the objects of which include child welfare or to any other suitable person.
The court in making such an order will consider the welfare of the children and will take the following factors into consideration (Section 88 LRA 1976):
- To the wishes of the parents of the child; and
- To the wishes of the child, where he or she is of an age to express an independent opinion.
In B Ravandran s/o Balan v Maliga d/o Mani Pillai m 2 MLJ 150, there was no dispute between the parents that the two youngest children remain with the mother. However, each wanted custody of the two elder children. The judge in considering the issue of custody considered the wishes of the two elder children. While the eldest child was able to form an independent opinion, the judge was of the opinion that the second eldest was influenced by the father. The judge also took into consideration the fact that the father who was a busy businessman could not effectively spend time with the children, neither could the unmarried niece attend to the children indefinitely and that the father’s mother due to her age could also not tend to the children. Since all the children stayed with the mother all these years, the judge also took this into consideration, not to disrupt the children’s environment. In that regard, custody was granted to the mother allowing the father visitation rights.
There is a rebuttable presumption that it is for the good of a child below the age of seven years to be with his or her mother (Section 88(3) LRA 1976). In order for the father to gain custody of children below seven years of age, the father will need to prove that his spouse is an unfit mother. In Amar Kaur Ram Singh v Najar Singh Sagar Singh  2 CLJ (Rep) 261, the mother who had a history of suicidal tendencies and violent behaviour sought custody of her six children who were staying with their father. The court dismissed the mother’s application on the grounds that the mother was mentally unstable and the paramount consideration is the welfare of the children and the ability of the relevant parents to take care of the children. It was also shown that the children were in positive physical, mental and emotional state in the care of the father.
An order for custody under Section 89 LRA 1976 may be subject to such conditions as the court may think fit to impose, entitling the person given custody to decide the upbringing and education of the child. An order for custody may contain the following conditions:
- the place the child resides, the manner of their education, and religion;
- temporary custody of child with another person;
- provide for the child to visit the non-custodian and members of the family;
- provide right of access of the child to the non-custodian; and
- prohibiting the child from being taken out of the country.
Regardless, it does not mean that the parent who was not granted custody relinguishes his duty as a parent to support the children. It shall be the duty of the parents to maintain or contribute to the maintenance of the children whether they are in their custody or the custody of any other person the court sees fit to place. Maintenance of the children include medical expenses, education, accommodation, clothing, and food, as may be reasonable having regard to the parents means and station in life.
Child custody can be applied by either party but the utmost priority is the welfare and best interest of the child.
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