How To Win Custody of Children as a Father in Malaysia
Law of Child Custody in Divorce in Malaysia
The law on custody of children is clear in Malaysia. The custody of the children shall belong to the mother if the children are below the age of 7 as stated under Section 88(3) of the Law Reform (Marriage and Divorce) Act 1976. You may have at least heard about it somehow. If that is the case, does that mean that the father stands no chance to get the custody of the children if the children are below the age of 7? More importantly, how to win custody of children as a father in Malaysia?
Before we move on, it is important to note that there is a difference between the terms of guardianship and custody in Malaysia. Read here to find out the difference between guardianship and custody law in Malaysia.
Getting Custody as a Father in Malaysia
Before we dive deeper and provide further insights, it is crucial to understand that the Court shall always focus on what will be in the best interest and welfare of the children, before deciding who shall have the custody of the children in the event of a custody dispute in Malaysia.
Under the custody law in Malaysia, the Court is bound to decide in favour of the mother in the event of a dispute if the children are below the age of 7. This is more so if there is no single piece of evidence to point to the fact that the mother is unfit as a parent or unable to take care of the children properly.
That said, how can a father gain custody of the children if the children are below the age of 7?
Proofs of Unfit Mother in Custody Battle
Essentially, in such circumstances, it is very important for the father to show and prove that the mother is unfit as a parent and has no ability to take care of the children. This can be due to various reasons. Here are few reasons where the father may be able to get custody of the children; if the father can prove to the Court that:
- the mother is abusive and this may include not just physical abuse but mental abuse as well.
- the mother has history/still taking illegal drugs and this may be a bad influence to the children.
- the mother is diagnosed with mental illness that may affect her ability to care for the children.
- the children expressed their desire and wishes to stay with their father provided that the children are able to give independent and mature opinion on their own (assuming if the children are beyond the age of 7).
- he is able to provide a more stable and better environment in the best welfare and interest of the children (assuming if the children are beyond the age of 7).
- there is any other reason to show that the mother is unable/unfit to take care of the children physically and/or mentally and it is in the best interest of the children to be under the custody of the father.
Take note that the circumstances listed here are not exhaustive and conclusive. Each case is different and the Court shall decide each case independently based on facts and evidences.
Ultimately, the Court is bound by the law to decide in favour of the mother if the children are below the age of 7 as mentioned but the above may be deciding factors to help the Court to make a fair decision.
All in all, it is always advisable to seek for a fair and amicable settlement for custody. If co-parenting is possible, it is always encouraged to ensure that the children are not deprived from the love and affection from any of the parents as this is always in the best interest and welfare of the children.
You may speak to our divorce lawyer in Malaysia to discuss and understand how to achieve a fair settlement to resolve custody dispute.
Frequently Asked Questions About Custody of Children in Malaysia
1. Can a father get custody of his child in Malaysia?
Yes, a father can get custody in Malaysia, but the court’s decision depends on the child’s age and what is best for the child. If the child is below 7 years old, the court will usually give custody to the mother unless she is proven to be unfit. If the child is above 7 years old, the court will decide based on the welfare of the child, meaning which parent can provide the best care, safety, and stability.
2. Do courts always give custody to the mother first?
In many cases, the court may start with the idea that a young child should stay with the mother, especially if the child is under 7. However, this is not a strict rule. If a father can prove that the mother is not a suitable parent or that the father is better able to care for the child, the court can decide in the father’s favour.
3. What does the court consider when deciding custody?
The most important factor the court looks at is the welfare of the child. In short, what is best for the overall child’s happiness, safety, health, and education. The court also looks at:
- The emotional and physical care each parent can provide
- The child’s needs, and
- The relationship the child has with each parent.
4. Can the child express his or her own wish in a custody dispute?
Yes, the court may listen to the child’s wishes if the child is old enough and can express a clear view. More importantly, if the child can express their own independent opinion without being influenced by any party. This does not guarantee the child gets what they want, but it can be one of the things the court considers.
5. What should a father do to improve his chances of winning custody?
A father should focus on showing:
- he plays an active role in the child’s daily life
- he can meet the child’s emotional and physical needs
- he provides a safe and stable home
It helps to gather proof such as school records, evidence of involvement in caregiving, and documentation of the child’s routine and welfare. Good legal advice is also important to present your case clearly to the court.
Get Free Divorce Consultation Now
