Difference Between Guardianship & Custody Law In Malaysia
Divorce is an uncomfortable topic, but unfortunately, some marriages simply do not work out. Sadly, when a marriage breaks down, that often takes a toll on the children in the marriage. With the growing number of failed marriages in Malaysia, questions of guardianship and custody of children below the age of maturity have become increasingly important.
Understandably, after a couple agrees to go their separate ways, each party would probably want to keep young children in their own care. After all, the bond between parent and child is one that is unique and strong. And that, is where most of the disputes start to develop.
When the court dissolves a marriage, orders are made as to who gets the guardianship, custody, care and control of the children. In a custody battle, this is the endgame. While they do not carry the exact same meaning, “guardianship” and “custody” are however nearly indistinguishable in a legal sense, and their application in divorce proceedings typically go hand in hand together.
The Law On Guardianship & Custody In Malaysia
The Guardianship of Infant Act 1961 (“GIA”) and the Law Reform (Marriage and Divorce) Act 1976 (“LRA”) has, to a certain extent, provided some coverage on these concepts, which can help us better understand the differences between guardianship and custody of a child of marriage, and in a divorce proceeding, who is entitled to which.
Under the GIA, a guardian shall have the custody of the child and shall be responsible for his support, health and education of the child. Also, the guardian shall have the control and management of the child’s property in the interest of protection or proper realisation of that property on the child’s behalf.
It is implied that guardians are in charge of making decisions about the child’s religious belief. So, while they are still legally married and living together, the law recognises both parents as the guardians of the child, and consequently, both parties shall share equal rights to the custody of the child.
In cases where the biological parents are out of the picture or unable to assume this role, the Adoption Act 1952 (Rev 1981) (“AA”) defines the term “guardian” as “any person or body of persons other than its natural parents, who has custody of the child”, whereas the Registration of Adoptions Act 1952 (Rev 1981) (“RAA”) defines the word to mean “the person having the legal right to the custody of the child”.
We can see that the common element running through all these legislative provisions is that the guardian has the custody of the child. Custody may range from the literal care, control and access to the child, such as the accommodation or living arrangements, up to the authority to determine all questions relating to the upbringing and education of the child.
Therefore, the custody of a child is comprised of legal rights and responsibilities for raising a child and personal supervision of the child’s upbringing, especially the right to keep the child in the custodian’s home.
This sounds rather familiar. As it turns out, there is no clear line of distinction of guardianship and custody with legal terminology. In a general context, a guardian may be regarded as that person who is vested with the parental rights and duties over a child, someone who has the ultimate say in the child’s long-term welfare.
There is an apparent overlap of the rights over the child’s upbringing. Nevertheless, a guardian’s role is in broader terms, so the standard interpretation of the law is that a guardianship includes custody as well as the upbringing of the child and administration of child’s property. However, reality shows us that parents tend to focus on acquiring custody rights so that they can continue living with their children.
While a guardian would normally have the custody of a child, that is not always the case. In a divorce order, depending on the circumstances of the situation, and more importantly in consideration of the welfare of the child, it is possible for the care and control of the child to be accorded to another person who is not the guardian. That person may merely possess the right to the daily care and control of the child, and the guardian retains the authority to partake in deciding on matters that are significant for the child.
The LRA states that the court may order for joint guardianship and custody of the parents, or sole guardianship and custody to either the father or the mother, or guardianship to one parent and custody to the other, which are common arrangements in many divorce proceedings. In exceptional circumstances where the parents are found unfit to care for the child, the court may even grant custody to third parties such as the relatives of the child or welfare associations.
Although it is difficult at times to separate the two concepts of guardianship and custody, we can infer that under normal circumstances, the latter is a facet of the former and involves only the concept of actual care, control and access. A custody battle can be intense and emotionally charged affairs, especially for the children, hence the welfare of the child is always a primary concern for the courts in deciding a custody order.
Parenting is a lifelong commitment that starts with having a child, and does not end along with the divorce. If there are issues of childcare arising in a divorce application, it is always better to seek professional legal help to settle matters efficiently and effectively.
By Nicole Lee Yu Chen of TYH & Co.
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