Divorce and Custody Battle

The Complete Guide to Divorce and Custody Battle: How They Affect You and What You Can Do

Divorce and custody battle can get really ugly and distressing, we’ve heard of many custody battles when it comes to a contested divorce but how does it actually work? Are you really going to lose your child if you lose the custody battle?

Your marriage has come to an end, the happily-ever-after tales was a nightmare and now you cannot wait to get rid of your spouse. You want a divorce BUT you are not ready to let go of your child to your spouse.

Getting a divorce especially when you have child is not just a simple separation between you and your spouse. We all know that child will be most affected by a failed marriage.
Now you may think, what happened to your child after the split? Who gets custody of your child after divorce?

Well, the ideal situation is always for both parents to seek mediation and come to an agreement without bringing the issue to court. In fact, through this, parents get to decide what is best for all parties and for sure, it would be less fuss and drama-free.

HOWEVER if both parents refuse to give way to one and another to settle the custody issue amicably, this is where a custody battle comes in. Make sure you speak to your lawyers on the best arrangement for your child to minimize the impact of the divorce on your child.

Let’s take a look on what are the fundamental concerns and understanding parents would need to know in a custody fight.

What is a Divorce and Custody Battle?

1. What is a child custody in divorce?

   Child custody refers to the state of having certain rights over the child, potentially including care and control of the child.

2. What are the laws governing child custody in Malaysia?

   For a divorce in civil courts, sections 88, 89 and 90 of the Law Reform (Marriage and Divorce) Act 1976 (“LRA”) and Sections 3 and 5 of the Guardianship of Infants Act 1961 (“GIA”) governed the child custody in Malaysia.

3. Are there different types of custody in Malaysia?

   Yes. Decided cases indicate that one parent may be granted sole custody of a child whilst the other aren’t may be granted its care and control. Parents may be granted joint custody, in which case both parents have a say in the child’s upbringing and education (also known as legal custody) but one of them physically has the child living with him or her (also known as physical custody). Care and control are merely constituent element of custody.

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   How Can Divorce and Custody Affect You?

4. In a custody battle, how would the court decide which spouse gets the custody of the child?

   In deciding custody, the paramount consideration is always the welfare of the Child. Subject to the welfare of the child, the court has regard to:

   1. the wishes of the parents of the child
   2. the wishes of the child, where he or she is of an age to express an independent opinion
   3. there is a rebuttable presumption;
   4. when there are two or more children of a marriage.

5. What happened where the wishes of the parents as to custody are in opposition to one another?

   Under such circumstances, court will always resort to the paramount consideration in deciding child custody, which is the welfare of the child.

6. Where adultery of one parent is alleged, will that parent lose the child custody?

   There are decided cases indicate that the fact that one parent is guilty of adultery is NOT in itself a sufficient ground of law to deprive the parent of the custody of the Child.

7. Is it true that the mothers will automatically get the custody if the child is under 7 years old?

   Not entirely true. Section 88(3) of the LRA provides that there is a rebuttable presumption that it is for the good of a child below the age of 7 years to be with the mother but in deciding whether the presumption applies to the facts of any particular case, the court has regard to the undesirability of disturbing the life of the child by changes of custody.

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   How to Handle a Divorce and/or Custody Battle in the Best Possible Way for Yourself and Your Children?

8. At what age the court considers that the child is able to express his independent opinion?

   Depends. Although generally the child of 8 years old would be able to express their independent opinion however there are cases where the court felt that a child of 10 years old is still at an age when they could not really determine what they wanted and could be easily persuaded or coached by the parent in whose custody they were in.

9. Will the court conducts interview with the Child?

   Yes, if it is necessary. As provided under the law, the court has to regard to the wishes of the child in deciding custody.

10. How do Malaysian court decides on custody when there are two or more children of a marriage?

    When there are two or more children of a marriage, the court is not bound to place both or all children in the custody of the same person but to consider the welfare of each independently. There are cases indicate that interests of the children were best served if they were not separated in any custody decision.

11. Can your spouse get the custody of your child by converting your child to Islam without your knowledge/consent?

    No. Conversion of a child under the age of 18 will now require consent of BOTH parents. As such, you are not allowed to convert your child and obtain custody in Syariah courts if your marriage is a civil marriage.

12. Does the child custody applies to child from one party of the marriage?

    Under Section 2 of the LRA, child of the marriage is defined as a child of both parties to the marriage or a child of one party to the marriage, accepted as one of the family by the other party. “Child” includes an illegitimate child of, and a child legally adopted by either of the parties to the marriage.

13. What is the duration of the custody order?

    Except where an order for custody is expressed to be for any shorter period or where such order has been rescinded, the custody order will expire on the attainment by the child of the age of 18 years or where the child is under physical or mental disability, on the ceasing of such disability, whichever is later.

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    Conclusion & Helpful Tips Regarding Divorce or Custody Battles

14. Is there any possibility to change the custody order before the child attains the age of 18 years old?

    Yes. No order relating to custody, care and control or access to children is ever permanent. It is always subject to review.

15. How do you change the custody order?

    You need to file for an application to vary the custody order in court. Contact us or your lawyer.

16. If I lose the custody battle, can I still see my child?

    Yes. Unless there is a restriction order on visitation. Generally a custody order contains varies conditions including access/visitation rights to a parent deprived of custody. Speak to your lawyer or contact us to get a proper advice on the remedy available for your case.

17. Can the custodian stopped the parent deprived of custody from exercising visitation rights despite the court order?

    The custodian is not supposed to deny visitation rights granted to a parent deprived of custody without any good reason. Speak to your lawyer or contact us to get a proper advice on the remedy available for your case.

    If you have any questions or require any additional information, please contact our lawyer that you usually deal with.

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