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Child Custody and Divorce in Malaysia: Do I follow Mummy or Daddy?

Child Custody and Divorce in Malaysia

Child Custody and Divorce in Malaysia

The truth is, battle of Child Custody and Divorce in Malaysia is a common occurrence nowadays.

Your child might be upset that both his or her parents are going through divorce. This is inevitable.

The question that lies next is who should the child be with. Or in other words, who will have the custody of the child. Daddy or Mummy?

In a joint petition divorce (where both parties agreed to the terms of divorce), both parties can settle among themselves on who should have the custody of child. Both can even agree to have joint custody!

However, most single petition divorce (where both parties cannot agree on the terms of divorce) will revolve around the issue of child custody.

Question is, who will the Court grant the custody of child?

Under the divorce law in Malaysia, specifically the Law Reform (Marriage & Divorce) Act 1976, the Court shall presume that it is for the best interest of the child to be with his or her mother if the child is below the age of 7.

That said, the father of the child can rebut the presumption by proving to the Court that it is not true! For example, the father can prove to the Court that the mother often neglect or does not care for the child.

Essentially, the most important question the Court will ask is what is the best interest or welfare to the child? If there are more than one child, the Court will assess the welfare and interest of each child independently.

The Court might also take into account the factors such as previous lifestyle of the child, education and medical needs, each parents’ earning capacity, behavior of each parents, relationship between the child and the parent etc. before making a decision.

In conclusion, it is advised that both parties can reach an agreement on who should have the custody or even joint custody for the best of the child. This can not only save you time and trouble but your child need not go through the trouble in a Court’s trial.

Talk to our divorce lawyer if you have any issues regarding child custody and divorce in Malaysia or fill in the form below and our lawyer will get in touch with your shortly:

Our family lawyer will send you the quotation via Whatsapp/SMS in less than 2 working hours.
You may select more than 1 option and our family lawyer will advice you accordingly.
Let us know where the children is currently staying so that our family lawyer will know approximately which High Court to file the application.

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10 thoughts

  1. May I know if my husband wants the custody of my 3 months old baby, can he do so under the law? My baby son is still breastfeeding

    1. Hi Vicky,

      Under the law, there is a presumption that a child below the age of 7 is best to be with the mother.

      In your case, if you are not agreeable to allow your husband to have sole custody of your child, then it is best for you to consult a family lawyer.

  2. May I know if the mother who is a foreigner who married to a malaysian, the mother still has the advantage on the custody of their daughter?

    1. Yes Allen.

      There is a rebuttable presumption that a mother shall have the custody of the child below the age of 7 regardless of the nationality of the mother.

  3. If after 2 years not staying together is it call a divorce

    If my spouse n his family can owe utilities bill more then a thousand can I have possibilities to win

    If he bring sickness to me can it be a reason to

    If I m not working n he fight the case how many percent he can win as he don’t have a stable income and whole family smoke even in front of kids

    1. Hi Ru,

      Even if both are not staying together for more than 2 years, there is no ‘automatic’ divorce. You still need to get the High Court to pronounce the divorce.

      As to the circumstances or factors considered by the High Court on the issue of custody of children, the Court will decide based on what’s best interest for the child.

      Therefore, the outstanding of utility bills and smoking in front of kids may be persuasive in helping the Court to make a decision.

  4. As the father, what are my chances of having custody of my 8-year old son? I had given my full-time employment to take care of him for the past 5 years. He has a congenital heart problem coupled with acute anemia. He has also been assessed as a child with attention problem. My wife works full-time and only comes back home after 8pm, but she takes care of the child’s financial aspect. I sustain myself on my savings and occasionally, part-time jobs.

    1. Hi Francis,

      The Court will still assess on what is the best for the child. In your case, since the child has a medical condition, the Court will take this into consideration as well as how much medical cost is incurred and who is fit to take care the child (both financially and physically).

  5. what if my vietnamese wife ran back her country with our 3 years old daughter. we still not yet filed for divorce. anything i could do for custody my daughter? thanks 🙏

    1. Hi Yang,

      If your wife and daughter are now in Vietnam, strictly speaking, the High Court in Malaysia does not have the jurisdiction (power) to deal with the custody of the said child since the child is not physically in Malaysia. You may want to talk to your wife if both agreed to divorce in Malaysia and both of you must agree on the issue of custody (whether the child should be under the custody of you or your wife) with reasonable visitation rights to the non-custodian party. You may also want to consult a lawyer in Vietnam regarding this issue if no agreement is reached.

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