Children: custody and maintenance

Civil law: who has custody

The court can at any time order that a child be in the custody of the father or the mother. Where exceptional circumstances make it undesirable to entrust the child to either parent, it can place the child with another relative, an association whose objects include child welfare, or any other suitable person.

Law Reform (Marriage and Divorce) Act s 88(1)

Subject to the child's welfare, the court has regard to the wishes of the parents, and to the wishes of the child where the child is old enough to express an independent opinion.

Law Reform (Marriage and Divorce) Act s 88(2)

It is presumed, until shown otherwise, that it is for the good of a child under 7 to be with the mother, but in deciding whether the presumption applies the court has regard to the undesirability of disturbing a child's life by changes of custody.

Law Reform (Marriage and Divorce) Act s 88(3)

A custody order can give the parent without custody the right of access to the child at the times and frequency the court considers reasonable, and can prohibit the person with custody from taking the child out of Malaysia.

Law Reform (Marriage and Divorce) Act s 89(2)

Civil law: maintenance

Except where an agreement or court order provides otherwise, each parent has a duty to maintain or contribute to the maintenance of their children, whoever has custody, by providing reasonable accommodation, clothing, food and education having regard to their means and station in life, or by paying the cost.

Law Reform (Marriage and Divorce) Act s 92

The court can order a man to pay maintenance for his child if he has refused or neglected to provide reasonably for the child, has deserted his wife and the child is in her charge, during matrimonial proceedings, or when placing the child in someone else's custody.

Law Reform (Marriage and Divorce) Act s 93(1)

The court can also order a woman to pay or contribute towards her child's maintenance where it is reasonable having regard to her means.

Law Reform (Marriage and Divorce) Act s 93(2)

Unless the order is for a shorter period or has been rescinded, a custody or maintenance order ends when the child turns 18. Where the child has a physical or mental disability, or is in further or higher education or training, it ends when the disability ends or the education or training is completed, whichever is later.

Law Reform (Marriage and Divorce) Act s 95

The court can vary or rescind a custody or maintenance order on the application of any interested person, if it was based on a misrepresentation or mistake of fact, or there has been a material change in circumstances.

Law Reform (Marriage and Divorce) Act s 96

Islamic family law in the Federal Territories: custody

The mother is, of all persons, the best entitled to custody of her infant children, both during the marriage and after it ends, subject to the qualifications for custody.

Islamic Family Law (Federal Territories) Act s 81(1)

A person entitled to bring up a child can exercise the right of custody (hadhanah) if she is a Muslim, of sound mind, of an age to give the child the care, love and affection it may need, of good conduct from the standpoint of Islamic morality, and lives where the child will not face moral or physical risk.

Islamic Family Law (Federal Territories) Act s 82

The mother's right of custody ends when a son turns 7 or a daughter turns 9, but the Court can, on her application, let her keep custody until a son turns 9 or a daughter turns 11.

Islamic Family Law (Federal Territories) Act s 84(1)

After that, custody passes to the father, and a child who has reached the age of discernment (mumaiyiz) can choose to live with either parent, unless the Court orders otherwise.

Islamic Family Law (Federal Territories) Act s 84(2)

The Court can at any time place a child in the custody of any of the persons the Act lists, or, in exceptional circumstances, of any other person or a child welfare association. The paramount consideration is the welfare of the child.

Islamic Family Law (Federal Territories) Act s 86(1), (2)

Islamic family law in the Federal Territories: maintenance

Except where an agreement or order of Court provides otherwise, a man has a duty to maintain his children, whoever has custody, by providing reasonable accommodation, clothing, food, medical attention and education having regard to his means and station in life, or by paying the cost.

Islamic Family Law (Federal Territories) Act s 72(1)

Unless an agreement or order of Court provides otherwise, if the father is dead or his whereabouts are unknown, or if and so far as he is unable to maintain them, the person liable under Hukum Syarak has a duty to maintain or contribute to the maintenance of the children.

Islamic Family Law (Federal Territories) Act s 72(2)

The Court can order a man to pay maintenance for his child if he has refused or neglected to provide reasonably for the child, has deserted his wife and the child is in her charge, during matrimonial proceedings, when placing the child in someone else's custody, or when permitting him to practise polygamy.

Islamic Family Law (Federal Territories) Act s 73(1)

Unless the order is for a shorter period, has been rescinded, or is for a daughter who has not married or a child who cannot maintain themselves because of a mental or physical disability, a maintenance order ends when the child turns 18. The Court can extend it so the child can pursue further or higher education or training.

Islamic Family Law (Federal Territories) Act s 79