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Divorce Guide

Can Grandparents Get Custody of a Child in Malaysia?

When the court may give a grandchild's custody to a grandparent, and what you would need to show.

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3 min readUpdated 7 Oct 20262 sourcesLaw Reform (Marriage and Divorce) Act 1976Guardianship of Infants Act 1961
Contents

Can a grandparent apply for custody?

Yes, but grandparents have no automatic right to child custody. The court starts with the parents.

Section 88(1) of the Law Reform (Marriage and Divorce) Act 1976 lets the court place a child with the father or mother. Only where there are exceptional circumstances that make it undesirable to leave the child with either parent can it place the child with another relative, such as a grandparent, or another suitable person.

The Guardianship of Infants Act 1961 also treats the child’s welfare as the most important point. A grandparent will usually need to show a real, existing bond with the child and a serious reason for applying.

When do courts give custody to grandparents?

Only where there are strong reasons not to leave the child with a parent. Examples include:

  • both parents are unfit because of abuse, neglect, addiction or imprisonment
  • the parents have died or cannot be found
  • the child has lived with the grandparents for a long time, and moving them would harm their welfare

The court looks at the bond between grandparent and child, and whether the grandparent can offer a stable home.

What does the law say?

Section 88(2) of Act 164 makes the child’s welfare the paramount (most important) consideration. Subject to that, the court considers the parents’ wishes, and the child’s wishes if the child is old enough to give an independent view.

Section 11 of the Guardianship of Infants Act 1961 lets the court appoint a guardian for a child whose parents have died or are unfit. Guardianship (legal authority over the child’s upbringing) is different from custody (who the child lives with), but it is another route a grandparent can use.

How do grandparents apply?

You file an application in court, usually with the help of a family lawyer. It includes an affidavit (a sworn written statement) setting out the facts and why custody should go to you.

Be ready to show that:

  • you are closely involved in the child’s life
  • you can give a safe, stable home
  • the parents cannot or will not do so

School records, medical records and statements from teachers or social workers can support this.

The court may ask a welfare officer to visit and report on the child’s living conditions. That report carries a lot of weight. The process can take several months.

What to think about before applying

Try to reach an agreement with the parents first. Mediation or negotiation can avoid a court fight, and an agreed order approved by the court can be enforced just like one made after a contest.

Think honestly about caring for the child for years to come. The court will look at your age, health and finances.

Looking to engage a divorce lawyer? If you are a grandparent worried about your grandchild and unsure whether you have grounds to apply for custody, request independent lawyer contact via WhatsApp: Request Lawyer Contact. For general information, use our guides and tools.

Frequently asked questions

Do grandparents have an automatic right to custody in Malaysia?
No. A grandparent must apply to the court and show that living with them is best for the child's welfare.
Can grandparents apply if both parents are still alive?
Yes, but it is hard. Under Section 88 of Act 164, the court can give custody to another relative only where exceptional circumstances make it undesirable for the child to be with either parent.
What evidence should grandparents prepare?
Evidence that you have been caring for the child, that the parents are unfit or unable to care for them, and that living with you is best for the child. School and medical records and statements from teachers or social workers can help.

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