Common Myths About Child Custody in Malaysia

Myth 1: Mothers always get custody

Many fathers think they have no chance, and some mothers think the result is certain. Neither is right. Under Section 88(1) of the Law Reform (Marriage and Divorce) Act 1976, the court decides custody based on the child’s welfare.

Section 88(3) does say a child under seven is presumed better off with the mother. But the presumption is “rebuttable”, which means the father can overturn it with evidence that the child would do better with him.

For children aged seven and above, there is no presumption at all. The court looks at both parents equally: the child’s bond with each, how stable each home is, and who can best meet the child’s needs.

Myth 2: A child can choose at 12

There is no rule that lets a child pick a parent at 12, or at any other age. Neither the LRA 1976 nor the Guardianship of Infants Act 1961 says so.

Under Section 88(2)(b), the court considers the child’s wishes if the child is old enough to give an independent opinion. It is one factor among several.

The court asks how mature the child is and why they prefer one parent. A child who prefers the parent with fewer rules or more gifts may not be choosing what is best for them.

Myth 3: A custody order is permanent

Custody orders can be changed. Section 96 of the LRA 1976 lets the court vary or cancel a custody order if there has been a material change in circumstances, or if the order was based on a mistake or misrepresentation.

Examples of a material change:

• a parent moves to another state
• a big change in a parent’s health or finances
• new evidence of neglect or abuse
• the child’s needs change as they grow

Myth 4: The richer parent gets custody

Money is one factor, but far from the most important. The paramount consideration under Section 88(2) is the child’s welfare: emotional wellbeing, stability, the parent-child bond and who handles daily care.

A parent who earns less but is closely involved may well be preferred over a wealthier parent who is often away.

The court can also order the other parent to pay maintenance (financial support) for the child under Section 93. So the parent with custody can still get help with costs.

Myth 5: A remarried parent is favoured

Some parents fear the court will prefer the parent who has remarried. It does not automatically prefer a two-parent home.

Under the Guardianship of Infants Act 1961, the focus is the child’s welfare, not the parent’s marital status. A stable, loving single-parent home can be just as suitable, or more so.

A new spouse matters only if they affect the child, for better or worse. The court looks at this on the facts, not as an automatic advantage.

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