GuardianshipFebruary 9, 2024by William WongUnderstanding Child Custody: What Courts Consider

Divorce can be complicated, especially when it comes to deciding who gets custody of the children. Laws like the Law Reform (Marriage and Divorce) Act 1976 and the Guardianship of Infant Act 1961 lay out the legal framework for resolving child custody matters. But beyond just splitting responsibilities between parents, the focus is on what’s best for the child.

When a court has to decide on child custody during a divorce or separation, they must prioritize the child’s well-being. This involves looking at various factors that affect the child’s life. Let’s explore what courts consider when making these decisions.


Who can seek child custody?

According to Section 88 of the Law Reform (Marriage and Divorce) Act 1976, the court can grant custody to either parent, another relative, a child welfare organization, or any suitable person. Both parents have equal rights, as stated in Section 5 of the Guardianship of Infant Act 1961. 


Key factors considered by courts

The welfare of the child is the most important factor, as outlined in Section 11 of the Guardianship of Infant Act 1961 and Section 88(2) of the Law Reform (Marriage and Divorce) Act 1976. The court considers the preferences of both parents and the child, if old enough to express their opinion.

The child’s current living situation is crucial. If they’re in a stable and comfortable environment, the court may not want to change custody, as seen in the case of Masam v Salina Saropa & Anor [1974] 2 MLJ 59. 


The Presumption

Section 88(3) of the Law Reform (Marriage and Divorce) Act 1976 states a presumption that children under seven are best placed with their mother. However, this can be challenged if it’s not in the child’s best interests. Each child’s welfare is assessed individually, as stated in Section 88(4) of the same act.



Child custody laws aim to protect the child’s well-being above all else. Legal professionals must understand the laws and case law to ensure the court’s decision reflects the child’s best interests.


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