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Imagine this: A mother of two young children aged 2 and 5 wants to leave her husband but is worried about who would be entitled to custody of her children. She worries that the Court would not grant her custody of her children as she is a housewife and unemployed. Are her fears justified?

At the end of the day, the Court’s paramount consideration is the welfare of the children.

The power is granted to the Court to make orders for custody under Section 88 of the Law Reform (Marriage and Divorce) Act 1976 (“LRA”) whereby it may be in the interest of the child that custody be given to either the father or the mother (or, in exceptional circumstances, to another party where it is undesirable for the child to be entrusted to either parent). In deciding, the Court shall also have regard to:

  • the wishes of the parents of the child; and
  • the wishes of the child, where he or she is of an age to express an independent opinion.

Nevertheless, there shall be 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) of the LRA). This means that for children below the age of 7, the law will assume unless proven otherwise, that it is better for the mother to be granted custody. This was echoed in the case of Re Orr [1933] 2 DLR 77:

In the case of a father and mother living apart and each claiming the custody of a child, the general rule is that the mother, other things being equal, is entitled to the custody and care of a child during what is called the period of nurture, namely, until it attains about seven years of age, the time during which it needs the care of the mother more than that of the father.

In that particular case, the Court addressed the issue as to whether the fact that the mother was unemployed would rebut the presumption:

The care and supervision that a mother who is not out at work can give to her infant is an important factor for consideration in all custody cases. In this case, the fact that the mother is not employed should not be held against her but rather held in her favour as she will be able to devote all her time and energy to the tender loving care of the infant during the vital period of nurture. The father ought to remember and be reminded that he is legally and morally obliged to maintain the infant, irrespective of whoever has custody of the infant.

The custodial right was eventually granted to the mother.

In Malaysia, the case of Gan Koo Kea v Gan Shiow Lih [2003] 4 MLJ 770 involved children who were below 7 years of age. Their father applied for guardianship, custody, care and control of the children.  The Court held that on the basis of the undisputed facts, in particular, the following factors:

  • the children’s continuous stay with the wife ever since the separation of the husband and the wife;
  • the respective tender age of the children;
  • the several occasions of admitted beating of the children by the husband by using clothes hangersl and
  • the inaction or failure on the husband’s part in attending to the children after the separation,

it was eminently unsuitable for guardianship to be given to the husband. There was nothing in the undisputed facts to show that the wife was unable to provide the children with an adequate home environment. As the children were both below seven years of age, the rebuttable presumption under section 88(3) of the LRA was invoked as the children had been with the mother since the separation of the parties.

In other words, the position of the law is this:  if there are no circumstances to militate against the mother in respect of her ability to shower love and affection on the children and to look after their needs, then the presumption in section 88(3) of the LRA would be invoked to the effect that it would be good for the children below seven years of age to be with their mother, regardless of her employment status.

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