What Happens at a Custody Hearing in Malaysia?

How does a custody case begin?

Under the Law Reform (Marriage and Divorce) Act 1976, a custody case usually starts when one parent files a petition or application in the High Court. It sets out the facts of the marriage, the grounds for divorce if there is one, and the custody arrangement asked for.

The parent who files must serve (formally deliver) the papers on the other parent, called the respondent. The respondent can file a reply, and sometimes a cross-petition asking for a different arrangement.

If custody is asked for apart from a divorce, an originating summons is filed under the Guardianship of Infants Act 1961. This route is used when the parents never married, or when an earlier custody order needs to change.

What are interim orders?

Before the trial, either parent can ask for an interim custody order. It decides where the child lives and how visits work while the case goes on.

These orders matter most when something is urgent, such as a worry about the child’s safety. The court looks at the current home, the child’s routine and any risks, using the same welfare test as Section 88(2) of the LRA 1976.

Interim orders are not final and can be changed if things change. But courts do not like to disturb a settled arrangement without good reason.

What happens at case management?

Case management is a series of short hearings before the trial. The judge checks both sides are ready and gives directions on documents, affidavits (sworn written statements) and witness lists.

The judge may also order a welfare report. A welfare officer visits both homes, talks to the child and reports on the family. The judge gives this report a lot of weight at trial.

The judge may also encourage mediation. If you both agree on custody, the court can record it as a consent order and there is no need for a trial.

What happens at the trial?

At trial, both sides give their evidence to a judge. There is no jury. The parent who filed goes first, then the respondent.

Each side can call witnesses, such as family members, teachers or counsellors. The welfare officer may also give evidence. The other side’s lawyer can cross-examine (question) each witness.

The judge also reads documents such as school reports, medical records, photos and messages. Section 88(2) of the LRA 1976 requires the court to consider all the circumstances, with the child’s welfare as the paramount (most important) consideration.

Both lawyers then make closing submissions. The judge usually gives a written decision at a later date.

How does the judge decide?

The judge follows the welfare principle in Section 88(2) of the LRA 1976 and Section 11 of the Guardianship of Infants Act 1961. The child’s welfare comes first.

The judge looks at:

• the child’s physical, emotional and education needs
• each parent’s ability to meet those needs
• how stable each home is, and the child’s routine and relationships
• the child’s own wishes, depending on age and maturity
• each parent’s willingness to support the child’s bond with the other parent

A parent who cooperates is often seen more favourably. Trying to turn the child against the other parent can count against you.

The order states the type of custody, the access (visiting) arrangements and any conditions. Either side can appeal to the Court of Appeal if they think the judge got the law or facts wrong.

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