CUSTODY AND GUARDIANSHIP

A. INTRODUCTION

Guardian : Refers to the person who has powers over a child’s

upbringing, care, discipline and religion, but not necessary
have physical control on that child. Custody may be awarded
to another person, and his consent will only be sought in case
of marriage, or conversion to other religion, etc..

Custody : Refers to the state of having certain rights on the child, usually
the person whom was awarded with custody have physical
care and control of the child but this is not always true.

Access : Right of a parent who have been deprived of the custody/ care
and control of the child to visit the child.

Case Law Wakeham v Wakeham

Facts Due to the desertion by the wife, the husband was granted the
custody of their younger son. The wife seek to vary the order
and the court transferred the custody to the wife. The husband
appealed against the decision.
Held In this case, the custody must be given to the husband but the
care and control of the child shall be vested on the mother.
Award of the custody to the husband is to recognise his
innocent part, but nevertheless, the welfare of the child must
be considered. Thus, the care and control must be given to the
mother provided that the husband is entitled to voice his view
in the upbringing of the child.

B. STATUTES GOVERNING CUSTODY OF CHILD

(i) Guardianship of Infants Act 1961 (“GIA”)

Section 1 This Act only applies to the states of Peninsular Malaysia

only.

Section 2 This Act only applies to those who have not attained age of
majority. For Islam, the age of majority is 18 years old. For
non-Muslim, the age of majority is 21 years old.

Section 3 The guardian of the person of an infant shall have the custody
of the infant, and shall be responsible for his support, health
and education.

Section 4 A guardian has control on the child’s property and shall deal
with the property carefully as a man of ordinary prudence
would deal with his own property. He may do reasonable act
to realize or protect the child’s property.

Section 5 A mother shall have the same rights and authority as the law
allows to a father, and the rights and authority of mother and
father shall be equal. Both parents have equal parental rights to
 child’s custody, upbringing, and administration of its property.

Section 6 If the appointed guardian has died, the surviving parent shall
be the guardian. Nevertheless the court can appoint other
person to be the guardian or to have joint guardianship with
the surviving parent.

Section 7 If both parents died, testamentary guardian appointed by the

last surviving parent will be the guardian.

Section 8 If both parents of an infant have died without appointing a

testamentary guardian, any Magistrate, penghulu, police
officer or Protector may take the child to the Court and the
Court may appoint the child’s guardian.

Section 9 Even if a person has been appointed as guardian of the child’s

property, the Court may make orders to restrict or extend his
authority, to the extent necessary for the welfare of the child.

Section 10 The Court can make order to remove the guardian and
subsequently appoint another person to be the guardian in his
place.

Section 11 In exercising its power relating to the appointment and

removal of guardian, the Court shall have regard primarily to
the welfare of the child and consider the wishes of the parents,
if any.

Section 12 A judge may direct the custodian of the child to produce the
child in his chambers or anywhere that he appoints and make
order for temporary custody and protection as he thinks fit.

Section 13 When an infant leaves the custody of his lawful guardian, the
Court may order that he be returned to such custody. The
Court may direct an officer of the Court to seize the infant and
deliver him into the custody of his lawful guardian.

Section 15 The guardian is prohibited from transacting the property of the

child, unless with the leave of the Court. Any transaction done
without the leave of the Court will be void and the Court may
make order to restore the property to the child.

(ii) Law Reform (Marriage and Divorce) Act 1976 (“LRA”)

Section 2 Child of marriage includes:

 Child of both parties to the marriage;
 Child of one party to the marriage (illegitimate child or
legitimate child of previous marriage) being accepted
by the other party as one of the family; and
 Adopted children.

Section 87 A “child” has the meaning of “child of the marriage” as

defined in section 2 who is under the age of eighteen years.
Section 88 (1) The court may, at any time, give the custody of the child to
either parent. However, if there is exceptional circumstances
where the child is not suitable to be leave in the care of his
parents, the Court may give his custody to other suitable
person.
(2) Paramount consideration should be given to the welfare of
the child and subject to this, the court should consider as well,
if any, the wishes of the parents or wishes of the child if he is
of the age to express independent opinion.
(3) There shall be a rebuttable presumption, ie. children below
7 years old should be placed in the care of the mother. This
presumption will not apply if the change of custody will
disturb the life of the child.
(4) The court is not bound to place all children in the custody
on one person. The Court have to consider the welfare of the
children independently.

Section 89 A custodian is entitled to decide on the child’s upbringing and

education, but the court may impose condition to the custody
order such as those listed under subsection (2):-
(a) contain conditions as to the place where the child is to
reside, as to the manner of his or her education and as to the
religion in which he or she is to be brought up;
(b) provide for the child to be temporarily in the care and
control of some person other than the custodian;
(c) provide for the child to visit the parent deprived of custody
and his family at times that the Court may consider
reasonable;
(d) give the parent deprived of custody and his family the right
of access to the child at times and with frequency that the
Court may consider reasonable; or
(e) prohibit the person given custody from taking the child out
of Malaysia.

Section 91 A mother shall, in the absence of agreement or court order,

entitled to the custody of children deemed legitimate under
section 75.

Section 92 Unless the Court give order or direction, it is the duty of the
parents to maintain his or her children regardless whether or
not they are the custodian, either by providing the children
accommodation, clothing, food and education, or by paying
the cost incurred for these necessaries.

Section 95 The duration of custody lasts until the child attained the age of
18 years. The duration can be shorter if the Court set it to be
shorter or the order has been rescinded.
The duration can be longer if the child is under
physical/mental disability, and for that case, the custody will
only end after the disability ceased.

Section 96 The Court can vary the order if it is proved that the order was
given due to misrepresentation or mistake of fact or there has
been a material change in the circumstances.
Section 100 When considering any question relating to the custody or
maintenance of the child, the Court may take the advice of the
person who is trained or experienced in child welfare, but in
not bound to follow such advice.

Section 101 The Court can issue an injunction to restrain the child from
being taken out of Malaysia or gives leave for the child to be
taken out of Malaysia.

Section 103 The Court can grant an injunction against molestation during
the pendency of any matrimonial proceedings or on or after the
grant of a decree or divorce, judicial separation or annulment.

Laws that Govern Muslims

Laws that govern Muslims are GIA, Islamic Family Law Enactments of the States and
Islamic Family Law (Federal Territories) Act 1984 (‘the IFLA 1984’).

LRA does not apply to custody of/by Muslims, only GIA applies. Generally, all
provisions of GIA is applicable to Muslims if the State Legislature had adopted it in
the state enactment. However, if the provisions in the Act are contrary to Islam or
custom of Malays, they shall not apply to:-
(i) a person under 18 years old who he himself or his father professes Islam; and in
the case of illegitimate child, if the mother was professing Islam; and
(ii) a person converted to Islam, he had completed 18 years of age at the time he
converts or if he had not, he converted with the consent of his guardian.

Case Law Myriam v Mohamed Ariff

Facts This was an application for the custody of two infants, a girl
aged 8 years and a boy aged 3 years. The applicant, the mother
of the infants, had been divorced by the respondent, the father
of the infants. At the time of the divorce, the Kathi had
recorded a consent order giving the custody of the infants to
the respondent. Since the divorce the applicant had remarried a
man not related to the infants. It was contended by the
respondent inter alia (a) that the applicant was precluded from
making the application as she had consented to the order for
custody made by the Kathi; (b) that the Guardianship of
Infants Act, 1961 was inapplicable as the infants were
Muslims.
Held (1) In the light of section 45(6) of the Selangor Administration
of Muslim Law Enactment which provided that nothing in the
Act shall affect the jurisdiction of any civil court, the applicant
was entitled to make the application, despite the consent order
made by the Kathi, and the court had jurisdiction to hear the
application;
(2) That sections 5 and 11 of the Guardianship of Infants Act,
1961 were applicable, as there was nothing to show that these
provisions conflicted with or were contrary to the Muslim
religion or custom of the Malays;
(3) That in applying the provisions of the Guardianship of
Infants Act, regard must be had to the religion and customs of
the parties concerned, but the decision need not be made in
accordance with the rules of the religion or custom except
 when it relates to or concerns a person under the age of 18
years professing the Muslim religion, in which case any
provision which conflicts with or is contrary to the Muslim
religion or custom of the Malays will not apply;
(4) That both under the English law and the Muslim law the
primary consideration is the welfare of the child and applying
this consideration in this case, the custody of the girl would be
given to the respondent and the custody of the boy to the
applicant until he reaches the age of 7 or 8 years
when either party may be at liberty to apply. The parties will
also be given reasonable access to the children and temporary
custody during the school vacations.

Application of the Statutes to Illegitimate Children

The meaning of ‘child of marriage’ in section 2 of LRA does not include illegitimate
children. Premised on that, a child of marriage must be legitimate. They can be
illegitimate prior to being brought into the family, but once they were brought in,
adoption must be made by both parties to make the children legitimate.
There is no express mention of the provisions in GIA on illegitimate children. In this
case, Civil Law Act provides that if the local provisions are silent regarding to a
matter, common law can be referred.

Case Law Barnado v McHugh

Facts R had an illegitimate child. She admitted him to the homes
where she and the Appellant had an agreement that the child
shall be maintained and educated by the Appellant for 12 years
and the child shall not be removed without her permission.
Later, R asked for the return of the child but the Appellant
refused to do so. The Court appointed Mr. W, nominated by
the mother R, as the guardian of the child. The Appellant
appealed against the decision.
Held A sort of blood relationship, though not legal, gives the natural
mother of the illegitimate child, a right to the custody of the
child.

Case Law Tam Ley Chian v Seah Heng Lye

Facts The plaintiff and defendant were married under Chinese
custom but their marriage was not solemnized in accordance
with the Law Reform (Marriage and Divorce) Act 1976 ('the
Act'). A child was born to the couple but due to some
misunderstanding, the plaintiff was evicted from the
matrimonial home and the child forcibly removed from her
care and custody. The plaintiff has applied for an order that
she be appointed guardian of the child, averring that she is the
natural mother of the child and that because the marriage was
not solemnized in accordance with the Act, the child was
therefore born out of wedlock and was illegitimate under the
law.
Held The plaintiff’s application was allowed:-
(1) The parties agreed in their respective affidavits that their
marriage was void. Therefore, the child was illegitimate.
Where a child is illegitimate, the putative father has no rights
over him under the common law.
(2) Section 24 of the Courts of Judicature Act 1964 confers
 the High Court with the jurisdiction to appoint and control
guardians of infants, which must also include illegitimate
infants.

C. FACTORS TAKEN INTO ACCOUNT BY THE COURT TO GIVE

CUSTODY

Case Law Khoo Cheng Nee v Lubin Chiew Pau Sing

Principles A court gives the 'best interests of the welfare' of the child the
highest priority. What the best interests of the child are in a given
situation depends upon many factors, including:
(1) The child's age, gender, mental and physical health;
(2) Mental and physical health of parents;
(3) Lifestyle and other social factors of the parents, including
whether the child is exposed, for example, to second-hand
smoke and whether there is any history of child abuse;
(4) The love and emotional ties between the parent and the
child, as well as the parent's ability to give the child
guidance;
(5) The parent's ability to provide the child with food, shelter,
clothing and medical care
(6) The child's established living pattern (school, home,
community, religious institution)
(7) The quality of school – particularly important when one
parent wishes to move
(8) The ability and willingness of the parent to foster healthy
communication and contact between the child and the other
parent.

(i) Child’s Age

Case Law K Shanta Kumari v Vijayan

Facts In this case the applicant applied to regain the custody of her
20 month old infant from her father. Except for a brief period
when she was taken away by the father the infant had been in
the loving care of her mother, the applicant. The father had
neglected the child since her birth but had taken the child away
when he visited her without the mother's knowledge or
consent.
Held (1) In deciding the question of custody under Section 11 of the
Guardianship of Infants Act 1961, it is imperative for the court
to note that no parent enjoys an earlier or superior right over
the child and that the welfare of the infant should be the
paramount consideration. The care, comfort and attention as
well as the wellbeing and happiness of the child are relevant
matters to be considered. The Court may also look to the
conduct of the parties and decide which of the two houses can
offer the child the better security and stability;
(2) Even going on the assumption that both parents are equally
capable of providing the care, comfort and attention to the
infant, the courts have always leaned in favour of the mother
being given custody of young infants;
(3) In this case it is in the interest and welfare of the infant that
she should continue to remain in the custody of the mother.
 ---------------------------------------------------------------------------
Even going on the assumption that both parents are equally capable of
providing the care, comfort and attention to the infant, the Courts have
always leaned in favour of the mother being given custody of young infants.
The reason is very obvious. An infant of tender age is by nature more
physically and spiritually dependant on its own mother than anyone else.

In Kades v Kades (1961) 35 ALJR 251 the High Court in a joint judgment
stated:

"What is left is the strong presumption which is not one of law but is
founded on experience and upon the nature of ordinary human
relationships, that a young girl, should have the love, care and attention of
the child's mother and that her upbringing should be the responsibility of
her mother, if it is not possible to have the responsibility of both parents
living together."

In Re Orr [1973] 2 DLR 77 Muloch C.J. commented:

"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 …"

Similarly in Myriam v Mohd Ariff [1971] 1 MLJ 265 Abdul Hamid J. (as he
then was) when considering the custody of a 3-year old infant said:

"To my mind, it would not be in the interests and welfare of this infant that
he should be denied of the natural mother's love, care and affection. It is
proper that he should be in the custody of the applicant until at least he
reaches the age of 7 or 8 years at which time either party may be at liberty
to apply."

(ii) Child’s Gender

Case Law Khoo Cheng Nee v Lubin Chiew Pau Sing

Facts The petitioner applied for the dissolution of her marriage to the
respondent and, inter alia, for custody of her two children aged
seven and ten respectively together with monthly maintenance
of RM1,000 per child. In his reply, the respondent also prayed
that the marriage be dissolved but that the custody of the
children be given to him. For the better part of the children's
lives, they have been with their mother. Amongst other
allegations, the respondent has alleged that the petitioner was
living in immoral circumstances with different men, and was
therefore unsuitable to have custody of the children. The
petitioner admitted to the relationships with different men and
also that her financial position was precarious.
Held Granting custody of both children to the petitioner but the
respondent is to remain legal guardian:-
(1) The wishes of the parents as to custody are in opposition
to one another, therefore the welfare of the children was the
paramount, although not the sole, consideration. Here, the
court was concerned with the custody of two children. Where
the question to be decided is the custody of more than one
child, under s 88(4) of the Law Reform (Marriage and
Divorce) Act 1976 ('the Act'), the welfare of each child must
be considered separately. In this case, the two children were of
 the same sex with only three years age difference which
explained their closeness to one another. It would only add to
their trauma of having feuding parents for the two children to
be separated at this juncture. Therefore, the interests of the
children were best served if they were not separated in any
custody decision.

(2) Under the second part of s 88(3) of the Act, it is

undesirable to disturb the life of a child by changes of custody.
A party seeking an order for custody away from the children's
current arrangements must show that what he or she offers
better benefits the welfare of the children. The court must
evaluate whether the improvement to the welfare of the child
is sufficient to justify disturbing the life of the child by that
change of custody. It has to be shown there will be positive
advantages accruing for the welfare of the children by that
change. Those advantages must be real and not merely
promissory or speculative. Here, the children for the better part
of their lives had been with their mother and the advantages
suggested by the respondent remained speculative. He should
therefore establish a stable home before making an
application.

(3) Dubious as the petitioner's conduct may be, the only

concern was what exactly the children was exposed to, and
whether it was contrary to their welfare. Adultery, although
frowned upon by our society, by itself is not a sufficient
ground to disqualify a mother from having custody of her
children. Merely that another person has emerged in the
petitioner's life was not necessarily by itself bad for the
children.

(4) If custody were given to the respondent, he would take the

children to Kota Kinabalu. The petitioner's ability to utilize
any access order was very limited given her financial
circumstances. If custody were given to the petitioner, the
respondent having better financial resources, would be better
able to exercise his access rights.

(5) The maintenance and upkeep of the children should be the

shared responsibility of both the petitioner and the respondent.
Accepting the respondent's salary as RM3,000, a generous
budget for the children would be 30%. Considering the funds
needed for air fare to visit the children, the sum available for
the children would be about 20% of his salary. The respondent
should thus pay maintenance of RM300 per child per month.
The court will normally favour the parent who will best
maintain stability in the child's surroundings. There is no set
standard as to what constitutes 'stability', but a judge looks for
continuity in a child's life. To the degree possible, a judge will
try to maintain continuity in, for example, a child's school,
community and religious ties.

(iii) Child’s Wishes

Case Law Kanagalingam v Kanagarajah
Facts In this case the respondent had applied for an order that a writ
of habeas corpus be issued directing the appellant to produce
the respondent's daughter Rathika before the court to be
delivered to him as the lawful father and guardian of the
infant. The girl was over 18 years of age and had left her home
to go through a form of marriage with the appellant. No
consent of the respondent was obtained for the marriage. The
application was made under Order 54 of the Rules of the High
Court, 1980. The learned Judicial Commissioner who heard
the application made an order directing that the girl be put in
the care of her aunt, Mrs. Sivarajah, for a year or six months or
longer pending further application. The respondent appealed.
Held (1) The application was rightly made under Order 54 of the
Rules of the High Court, which is the provision setting out
how the power of the High Court under section 25 of the
Courts of Judicature Act, 1964, should be exercised;
(2) In this case no affidavit by the person restrained or
statement that the person restrained is unable to make the
affidavit was produced; but this was an irregularity which did
not nullify the proceedings;
(3) In this case the learned Judicial Commissioner failed to
consider the wishes of the infant, which was a factor relevant
to the determination of the welfare of the infant and to enable
him to decide whether the respondent had made out a case for
the issuing of directions in the nature of habeas corpus;
(4) In this case the infant was over eighteen years of age,
intelligent and capable of making up her own mind as to what
she felt best in her own interest;
(5) The infant should therefore be freed from all restraint and
be at liberty to choose where she wishes to go.

Case Law Manickam v Intherahnee

Facts In this case the respondent had left the matrimonial home and
had taken her younger child Anand, aged 4 years, to live with
her. The elder boy, Nantha, remained with the appellant, his
father, in Johore Bahru. The appellant had taken a second
wife, with whom he had a child. The respondent applied for
custody of both the children. The learned Judicial
Commissioner allowed her application and the appellant
appealed.
Held Appeal dismissed, on the following grounds:-
(1) The learned Judicial Commissioner had acted on the right
principles, having in mind always that the paramount
consideration is the welfare of the child;
(2) In this case the elder child being only 8 years of age at the
time of the hearing and then in the custody of the appellant and
his family could not reasonably be expected to express any
independent opinion on his preferences;
(3) Although by the order the child would be uprooted from
the surroundings and from relatives to whom he had grown
accustomed since 1977, the learned Judicial Commissioner in
this case was correct in considering the wishes of the
 unimpeachable parent;
(4) The care and attention of the natural mother can reasonably
be expected to be superior to that of a stepmother particularly
one who has a child of her own and with every prospect of
additions to the family.

Case Law Re KO (an infant)

Facts In this case, the parties, husband and wife, were married in
1976 and had a child from the marriage. The husband was a
director of various family companies in Penang while the wife
was a senior executive in a company in Kuala Lumpur. As a
result of their careers, they had to live separately, the husband
with the child in Penang and the wife in Kuala Lumpur. There
were exchange visits on alternate weekends. The relations
between the parties deteriorated and eventually the wife
applied for the custody of the child. At the hearing, the learned
judge, in addition to hearing the parties and their witnesses,
had the benefit of reports from two welfare officers and expert
opinion on Chinese custom and he also interviewed the child.
Held Granting custody to the mother:-
(1) In considering the question of custody of the child, the
welfare of the child should be the paramount consideration.
(2) Bearing in mind all the factors in the case and the
submissions of counsel, the court concluded that custody, care
and control of the child ought to be awarded to the wife,
subject to reasonable access, including staying access to the
husband, substantially during the holidays.
---------------------------------------------------------------------------
I might add that at the conclusion of the hearing and with the consent of
counsel on both sides, I had interviewed the child in chambers, with the
assistance of Mr Lim, the senior court interpreter, since I considered that
the child's own views would be relevant to his welfare, because, for
example, he may not settle well in an environment which he dislikes. But, I
reminded myself that how influential an infant's wishes are will clearly
depend upon the extent to which they coincide with his best interests in the
opinion of the court. InG v G (1982) 12 Fam Law 184, Dunn LJ said that it
was extremely dangerous to place decisive weight upon the wishes of
children at the age of twelve who were extremely suggestible and reluctant
to upset their parents and are very protective towards them.

Case Law Chan Bee Yen v Yap Chee Kong

Facts In this custody case, the wife had earlier obtained an ex parte
order granting her custody of her son aged seven years old.
The husband applied to set aside the ex parte order, contending
that the child had been very happy all along staying in the
matrimonial home along with the child's grandparents and that
the wife would not be able to provide the child with a proper
house to live in. The husband also contended that the child had
a blood abnormality which needed special care and attention.
Held The husband's application was dismissed:-
(1) It is established law that the paramount consideration in a
custody case is the welfare of the child, but this is not the sole
consideration though it is predominant. Also, the wishes of an
unimpeachable parent prevail over those of the other, subject
to the said paramount consideration of welfare.
(2) Having regard to the age of the child, being under seven at
 the time of judgment, the rebuttable presumption mentioned in
s 88(3) of the Law Reform (Marriage and Divorce) Act 1976
that it is for the good of the child to be with his mother would
also fall for consideration.
(3) The court found that both the husband and wife loved the
child but the mother did so more than the father. The husband
appeared to have spent his spare time after his work not only
in keeping the infant company, but also in indulging in his
hobbies of cultivating Japanese miniature trees and rearing pet
dogs. To the wife, her love for the infant now, since her
separation from the husband and losing almost all that the
marriage stood for, could have intensified and the child has
now represented the only meaningful thing in life to her.
(4) As regards the change of residence on granting custody to
the wife, it was not a matter of the mother being away from the
infant for some time and had suddenly come in from the cold
to claim him. The mother had been staying with the child till
the father took the infant back from a school to which the wife
had sent the infant. This situation was not as grave as
'uprooting' and any unhappy effects of such change of
residence would be much more mercifully transient especially
since the court later granted the husband daily access in
respect of the infant.
(5) As for the wishes of the infant, the court did not conclude
that the child's opinion of preferring to stay with his father was
independent or reliable as the court's impression of the child
being coached on what to say could not be at all ruled out.
(6) About the two homes, ie the more luxurious home of the
paternal grandparents compared with the relative poverty of
the maternal grandmother's home, this situation would be
improved as the wife had booked a low-cost flat to which she
would shift with the child and her mother.
(7) Regarding the blood abnormality which the infant was said
to have, the mother could probably be affected similarly, and if
this was so, other things being equal, the mother having had to
take care of herself by avoiding those drugs over the years
could have more experience and been more knowledgeable
than any of her in-laws or the husband.
(8) As to the conduct of the parties, the husband was certainly
aware of the desirability of providing a matrimonial home
away from his parents and any failure to take such a step was
conduct which was questionable, and the wife's complaint on
this score was entirely justified. The complaint of the failure to
provide a separate home for the wife had tipped the balance in
favour of the wife when the court considered the question
whether the wife was an unimpeachable parent in this case.
(9) After considering all the circumstances and the
predominant factor of the child's welfare, the court granted
custody to the mother with daily access to the father for certain
hours.

(iv) Child’s Physical and Mental Health

(v) Child’s Religious Upbringing

Case Law Chua Thye Peng v Kuan Huah Oong
Facts In this case the paternal grandparents of the infant claimed
custody of the child aged 7 months. The parents of the child
were killed in an aircrash and had left the child with the
maternal grandmother of the child before they left. The
applicants claimed that in accordance with Chinese customary
law as well as under the provisions of the Guardianship of
Infants Act, 1961, they were entitled to be appointed the
guardians of the child. The father of the child was a Buddhist
and the paternal grandparents were also Buddhists. The
maternal grandmother was a Methodist although her husband
was a Buddhist.
Held (1) In considering the application under the Guardianship of
Infants Act, 1961, the court should have regard primarily to
the welfare of the infant and only consider the religion and
customs of the parties concerned provided they were
consistent with the welfare of the infant;
(2) Although the welfare of the infant is of paramount
importance, it is not the exclusive and only consideration. The
use of the word "primarily" in section 11 of the Guardianship
of Infants Act implies that there are other circumstances that
are to be considered in the process of consideration and
weighing;
(3) In this case both sides were unimpeachable and of the
highest moral character and there was not much to choose
between the two households; apart from considerations of
Chinese customary law for which regard should be given in
this case, the infant's paternal grandparents would be the more
proper persons to bring him up as a Buddhist which would
have been the wishes of his parents if they were alive;
(4) It would therefore be for the child's benefit and welfare in
the long term view, that custody, care and control of the infant
be given to the applicants, his paternal grandparents, subject to
liberal access by the respondent and her husband at all
reasonable times.

(vi) Parent’s Ability to Provide Food, Shelter, Clothes And Education

(vii) Parent’s Ability to Give Care and Guidance to the Child

Case Law Teh Eng Kim v Yew Peng Siong

Facts In this case the respondent (mother of the infant), applicant in
the court below, had obtained a divorce on the grounds of the
appellant's (her husband's) adultery. She applied for the
custody of the children of the marriage and for permission to
take the children to Australia. In her application she stated that
she was intending to marry one Lawrie Howell, an Australian
national. The husband, appellant, had committed adultery with
the former wife of Lawrie Howell and she was living with
him. The husband stated that he intended to marry her.
Arulanandom J. held (1) normally the court would be reluctant
to allow the children to be taken out of the jurisdiction but
from the facts of this case it was apparent that if the children
 remained in Malaysia they would have to live with their
stepmother for whom they decidedly had no affection; (2) in
this case the welfare of the children could be best served if the
applicant had custody, care and control of the children and was
able to take them to Australia. On the appeal it was argued that
while care and control of the children should be given to the
respondent, custody should be given to the appellant as he
wished to have a supervisory role of deciding the children's
future and education. Alternatively it was argued that there
should be an order for joint custody.
Held The appeal was dismissed:
(1) There was nothing in this case to show that the learned trial
judge had acted on wrong principles and therefore there were
no grounds to show that his discretion had been wrongly
exercised;
(2) In the circumstances a joint custody order was
inappropriate;
(3) The learned trial judge was correct in holding that the
parties had agreed that the net proceeds from the sale of the
joint property should be equally divided between them.
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The question is, what is best in the interests and welfare of these children?
I think the overall interests must prevail over everything else. Many
different views can be said about the overall interests, but with children of
the ages of Alban, Kathleen and Bernard, the maintenance of a stable and
secure home in which they can enjoy love and affection seems to me the
most important thing right now. The first two are of school age and their
future in life and society depends greatly upon their capacity for study and
concentration. The question then arises which of the two new households
can give them a stable and secure home. This is not a case in which the
answer should depend upon comparing two individuals, but upon two
households. In considering which of the two competing groups can give
stability and security to these children, the respondent wife started with the
immense advantage that after separation she has had the custody, care and
control of the children and they had thriven under her care and control.
They seemed happy with her and they did not want to stay with their father.
They seemed never really happy with him. They did not like the woman
with whom the father is living with and they hated her daughter who was
living with them. All these things show that they appeared to have a strong
attachment to their mother and are emotionally far more relaxed and
stable with her than with their father and the other woman. A remarkable
feature of the respondent's case is the support she had had from her
present husband who swore an affidavit in strong support of her
application. His affidavit speaks for itself. To my mind this demonstrates a
willingness on his part to discharge the duties of a surrogate father. The
woman with whom the appellant is living did not appear to fulfil the role of
a surrogate mother, beyond a bold statement by the appellant that she
knew the children well and that she would continue to provide the children
with the necessary care, comfort and attention. She swore no affidavit. I
think that is one other factor which had influenced the learned judge in
committing custody to the respondent. Since the welfare of the two children
is of paramount consideration, I agree with the learned judge that their
future lies with her in Australia. A new family unit has been created in
which the children have enjoyed proper care and attention and it is in their
best interests that they remain where they are.

Case Law Tan Sew Yok v Ng Keng Huat

Facts The petitioner was lawfully married to the respondent and
lived in Pontian, Johore. On 18 July 1978 the petitioner gave
birth to their first and only child who was about ten years old
 at the time of the hearing of this application made by the
petitioner. One month after the birth of the child the petitioner
left the matrimonial home together with the child and lived
separately from the respondent at the house of the petitioner's
parents in Pekan Nenas, Johore. According to the petitioner
she moved out because of the respondent's adulterous lifestyle.
In 1981 the petitioner reconciled with the respondent and she
and the child went back to the matrimonial home in Pontian.
Their relationship underwent some strain because, according
to the petitioner, the respondent went back to his old lifestyle.
They also frequently quarrelled during which the petitioner
complained of being assaulted by the respondent. In 1984 the
petitioner moved back with the child to her parents' home
where the child stayed until she was removed by the
respondent on 17 July 1987 during a quarrel. The petitioner
then instructed her solicitors to file for divorce. The divorce
petition has not been heard and in the meantime she made this
interlocutory application for custody of the child, maintenance,
and injunction against assault by the respondent.
Held The petitioner's application was allowed:-
(1) After having considered the totality of the evidence and the
submissions of counsel, it was decided that the child must be
returned to the mother's custody, the reason being that the
child had been cared for by the petitioner for the last nine
years before he was forcibly taken away from the petitioner.
Both mother and child in those formative years had developed
strong bonds. The child must have derived comfort from the
closeness of his mother. In caring for the welfare and comfort
of the child, she had done it almost single-handedly especially
at the time when she did not get any help from the respondent.
There was therefore no reason to think she would not be able
to do it now.
(2) As to attention to be given to the child, the petitioner is
now self-employed and would be staying at home doing her
tailoring. The court accepted that the father must be at work
much of the time as a used-car salesman. No doubt he had
cared for the child for almost two years up to the day of the
hearing of this application, but it is not difficult to see from the
evidence the constraints he has that work against the interest
and welfare of the child. As a salesman, he had to leave the
child with a friend to be cared for. It is not difficult to see that
this arrangement can never be substituted for the motherly
care, love and affection as has been shown by the petitioner.
(3) As for the finance of the respondent, the court found in
favour of the petitioner who was earning more than the
respondent. The respondent's capacity to finance the child is
dependent on his mother's grant of $1,000 per month which
would not be given if the child is no longer with the
respondent.
(4) The court made an order in terms of the petitioner's
application granting custody, care and control of the child to
her with reasonable access to the respondent; maintenance of
$200 per month for the child with liberty to either party to
apply; an interim injunction restraining the respondent and/or
 his agent or servant from assaulting or threatening and/or
abusing the petitioner; and costs in the cause.

(viii) Parent’s Lifestyle and Social Background

Case Law Re Satpal Singh (an infant)

Facts The appellant and the 1st respondent were married according
to Sikh religious rites at 234-A Tanjong Pagar Road on the 6th
of January, 1952. There was one child of the marriage — the
infant Satpal Singh — who was born on the 17th of
November, 1952.

On the 28th of December, 1952 some 40 days after the birth of

the child the 1st respondent left the applicant's house taking
the infant with her and went to her parents' home at 234-A
Tanjong Pagar Road. She has not returned to live with her
husband and the infant has been in her custody and care and
that of the 2nd respondent ever since.

It was contended that it is the custom amongst Sikhs for the

mother, some 40 days after the birth of her child, to take the
child out to her parents residence for a short period for the
purpose of carrying out certain ceremonies in connection with
the birth and of showing the child to their relatives and friends.
Held "Welfare" referred to in section 11 of the Guardianship of
Infants Ordinance must be taken in its large signification as
meaning that the welfare of the child as a whole must be
considered. It is not merely a question whether the child will
be happier in one place than in another but his general well-
being. The welfare of the child, both moral and physical,
should be the paramount consideration in awarding the
custody of a child of tender years.
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According to the evidence the boy is at present living with his mother and
Gurdial Singh in a small cubicle on the first floor of 234-A Tanjong Pagar
Road together with their nine-month-old baby and the possibility that they
may have more children cannot be overlooked. In the next cubicle to them
is the 1st respondent's mother and two brothers, the elder of whom was
convicted of theft in the 7th Magistrate's Court on the 15th of October,
1956.

I am satisfied that when the 1st respondent went to live with Gurdial Singh
at Lorong 18 Geylang in 1955 the boy was left with the 2nd respondent and
spent the greater part if not all of that period under her control. The 2nd
respondent has throughout, in my view, exercised a powerful and
dominating influence in this matter.

I am bound to say that both the respondents and Gurdial Singh created a
very unfavourable impression on my mind both in the witness box and from
my observation of them during these proceedings and I found their
evidence most unsatisfactory and unreliable. It was contended by Counsel
for the respondents that the applicant was mentally deficient. I do not
agree. I do not think he is very intelligent or mentally alert but he is
certainly not mentally deficient. He was very nervous in the witness box but
that I am satisfied was due entirely to his temperament and to the unusual
position in which he found himself.
 I considered that he was an honest and truthful witness and I formed a
favourable impression of him and the witnesses called on his behalf. I have
no hesitation in accepting their evidence.

Now section 11 first requires me to "have regard primarily to the welfare

of the infant." I have to consider his welfare in the terms of his general
well-being in life, not merely for the present but for the future.

In the case of Allen v Allen 54 TLR 418 which was applied in Willoughby v
Willoughby (1951) P 184 it was held that the word "welfare" in section 1 of
the Guardianship of Infants Act, 1925, to which I have already referred,
means physical as well as moral welfare and that merely because a woman
has once committed adultery, it cannot be said she is not a fit person, vis-
[/a]-vis one who has not, to have the care and control of a child.

Even if the ceremony of marriage between the 1st respondent and Gurdial
Singh was invalid and she is and has been living in adultery with him then
on the authority of the cases to which I have referred that would be no
reason for depriving the mother of the care and control of the boy and I
accordingly do not take it into consideration. Secondly the section requires
me to "consider the wishes of the parents". Now the father has, through no
fault of his own, been deprived of the custody, care and control of his son
by the wrongful act of the mother in deserting her husband without cause
and taking the boy away with her. The father has throughout exercised
considerable patience and in my opinion behaved with commendable
moderation and restraint and I attach considerable importance to his
wishes in these circumstances. He is in a position to give his son the benefit
of a comfortable and substantial home in surroundings vastly superior to
those under which he is now living together with all the advantages of
security, education and healthy family associations which he is not, in my
opinion, at present enjoying or likely to enjoy.

In the interests of the child alone and having regard primarily to his
welfare, both moral and physical, I have come to the conclusion that the
sooner he is removed from his present environment, which I consider in
every respect both undesirable and unsatisfactory, the better.

(ix) Parent’s Arrangement for the Child

Case Law Lee Soh Choo v Tan Ket Huat

Facts The applicant and the respondent in this application for
custody were married on June 7, 1980 and from this union, a
daughter was born on December 2, 1980 and a son on May 3,
1982. Since 1982, the applicant and respondent had been
experiencing matrimonial problems which resulted in the
present application by the applicant/wife seeking custody of
the two children.
Held The application was dismissed:-
The applicant should be granted access to the children every
Sunday from 9 a.m. to 6 p.m and should circumstances change
that warrant a change in custody, the applicant will be at
liberty to apply.

Observation: there is no substitute for a mother's love and

attention, especially when the children are of tender years but
where a mother like the applicant has shown that she will not
be able to devote her full attention to them and will greatly
rely on others to do so, in the interest and welfare of the
children, their custody should continue to remain with the
 respondent. A change at this point of time would be too
upsetting to them especially so in this case where the applicant
is still quite undecided whether to send them to her mother in
Kedah or to leave them with her brother and his wife in Kuala
Lumpur.

(x) Parent’s Ability to Visit the Child

Case Law Loh KonFah v Lee Moy Lan

Facts In this case the learned trial judge after hearing the parties,
gave the respondent, the mother, custody of her three infant
children with unrestricted access to them at all times by the
appellant as the father (ante p. 88). In 1970 the respondent and
the children by mutual agreement had moved to Singapore
where they have lived ever since. The appellant visited the
family regularly till 1973 when he stopped visiting them
entirely. The appellant wanted his wife and children to return
to Malaya but the respondent refused. In 1974 the appellant
commenced proceedings in Ipoh for the custody of his
children. The learned trial judge refused his application and he
appealed to the Federal Court.
Held Having regard to the evidence before him it could not bes aid
that the learned trial judge had wrongly exercised his
discretion. The learned judge was quite right in taking the
view that so long as the marriage subsisted between the parties
and there were no obstacles in the way of the appellant visiting
his children at any time the mother should have the custody. It
was not possible in this case to say that the learned judge had
either given weight to irrelevant or unproven matters or
omitted to take into account matters that were relevant. It
could not be said therefore that the decision of the learned
judge was improper, unjust or wrong.

(xi) Parent’s Claim

Refer to Teh Eng Kim v Yew Peng Siong (above at vii)

(xii) Possibility of Reconcilation

Refer to Loh KonFah v Lee Moy Lan (above at x)

(xiii) Reports of Social Welfare Officers

Refer to Re KO (an infant) (above at iii)

Held Granting custody to the mother:-
(1) In considering the question of custody of the child, the
welfare of the child should be the paramount consideration.
(2) Bearing in mind all the factors in the case and the
submissions of counsel, the court concluded that custody, care
and control of the child ought to be awarded to the wife,
subject to reasonable access, including staying access to the
husband, substantially during the holidays.
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I must now touch on the status of welfare reports in cases where there is a
 contested issue regarding custody. The function of the welfare officer in
making their reports is to act in an independent capacity and in that way to
help the court. They will have to investigate the child's position thoroughly
and report objectively. The court will expect a comprehensive picture of the
matter at issue. Some of the more obvious points on which welfare officers
would be expected to investigate and make their asssessment would be:
(1) the proposed arrangements for the care of the child;
(2) the relationship between the child and the proposed caretaker or
competing caretakers;
(3) the wishes and feelings of the child;
(4) the respective merits of the parents;
(5) whether access to a particular person is desirable, and if so, the
amount of access.

In Re W (A Minor) (1982) The Times 27, the court drew attention to the
need for welfare officers charged with the responsibility of preparing a
report to assist the judge in a custody case, to seek to discharge the
responsibility even outside normal working time. It was of the utmost
importance that the welfare officer found a way of getting to know the child
in both homes, when the child was living in one home and going to the
other home on access visits.

(xiv) Living Conditions in the Parent’s House

Case Law S Thaiyalnayagam V GM Kodagud

Facts In this case the father of the children had died in a car accident
and their mother had been murdered. The maternal
grandmother applied for an order of adoption of the children
and an interim order was made for her to have custody of the
children for six months. The paternal grandmother applied to
intervene in the adoption proceedings and obtained an order
for access. She subsequently brought an application for
custody of the children to be given to her. Both the adoption
application and the custody application were heard together.
The learned Judge dismissed the application for adoption and
considered the question of custody. He interviewed the
children, who expressed a wish to live with the maternal
grandmother.
Held (1) In this case both the grandmothers can give love and
affection to the children and they are well off financially so as
to be able to provide for maintenance for the children and their
education. The children would however be happier to live and
be looked after by the maternal grandmother for the reasons
given by them;
(2) On the facts the home of the maternal grandmother would
be more conducive to their welfare than the house of the
paternal grandmother;
(3) There was no evidence that it was the wish, of the
children's parents that they be guided in the Hindu religion.
The evidence was that the mother was a Roman Catholic and
had undertaken to bring up the children in the Roman Catholic
faith;
(4) In the circumstances the maternal grandmother should
continue to have custody of the children.

(xv) Stability/ Continuity in the Surrounding of the Child

Case Law Mahabir Prasad v Mahabir Prasad

Facts The appellant had applied for the custody of his two infant
daughters, aged 7½ years and 8½ years respectively. The
appellant was a Malaysian citizen while the respondent, the
mother of the children, was an Indian citizen. They were
married in Bombay in 1972 and the infants were born there.
The appellant left India in 1974 but the mother and the infants
remained and lived in India, until 1978, when they came to
Malaysia. In January 1980 the marriage broke down. The
parties entered into a deed of separation by which custody of
the infants was given to the father, the appellant. The
respondent returned to India and subsequently filed a divorce
petition for the dissolution of the marriage and also applied for
the custody of the infants. The appellant was represented at the
hearing. The Bombay court made an interim order granting
custody of the infants to the mother pending the trial of the
divorce petition. The appellant undertook to produce the
infants on the date fixed for hearing but he failed to do so, and
the Bombay Court granted an order of dissolution of the
marriage on the ground of cruelty and awarded custody of the
infants to the mother. The appellant applied for custody of the
infants in the High Court, Kuala Lumpur but his application
was dismissed as the learned Judge was of the view that the
appellant was estopped from making the application in view of
the decision of the Bombay Court. On appeal to the Federal
Court it was ordered that the proceedings be remitted for re-
hearing before another judge. The present proceedings were
then brought before the High Court.

Ajaib Singh J. held that from all angles it was in the best
interest and welfare of the children that they live with their
mother in India and therefore the application of the appellant
for the custody of the two children was dismissed and custody
granted to the respondent.

The appellant appealed to the Federal Court.

Held The appeal was dismissed:-
(1) the welfare of the children must be the first and paramount
consideration in such cases and other considerations must be
subordinate;
(2) in this case the learned judge took the correct approach in
giving the overriding consideration of the welfare of the
children upper most in his mind;
(3) from the evidence placed before the court it cannot but be
for the children's interests and welfare that they be returned to
the mother.

(xvi) Disruptive Effect

Case Law Masam v Salina Saropa & Anor

Facts The appellant, an unmarried mother, gave her child by one
G.S. into the custody of the respondents when the child (born
28.8.70) was 9 days old. The appellant in 1972 was legally
married and wished to take the child to Australia with her
husband an Australian resident. The respondents resisted the
 claim. Proceedings were thereupon taken by the appellant but
her claim was dismissed. She therefore appealed to the High
Court. The lower court was satisfied that the mother had never
shown and had never had the slightest interest in the infant
apart from giving him some presents. The foster parents had
lavished their loving care and affection on the infant.
Held The appeal was dismissed:-
(1) the court below had made findings of fact dependent on its
having seen the witnesses and assessed the reliability of their
evidence. The appellate court was satisfied that the lower court
had exercised its discretion rightly;
(2) the first and paramount consideration was the welfare of
the child, to which all other considerations were subordinate.
These subordinate considerations include the mother's wishes
and the fact that she was the natural mother;
(3) a child's future happiness and sense of security are always
important factors and the effect of a change of custody will
often be worthy of close and anxious attention, but the fact that
change of custody may unsettle the mind of the infant is only a
circumstance to be considered and ought not to be regarded as
a complete bar to any change.