Who is a child?
A child of the marriage is generally a person under 18. The duration of maintenance is a separate question and may extend beyond 18 in particular circumstances.
Children & child maintenance
HomeTopic 1 of 6
Topic 1
Custody and joint responsibility
Who may have custody?
The Court may place a child with the father, mother, or—exceptionally—another suitable relative, association, or person. The answer is not determined simply by which parent asks.
What does custody mean?
Custody concerns responsibility and authority for the child, not only where the child sleeps. An order may include conditions about residence, upbringing, and parental arrangements.
Can custody be shared?
Joint custody can preserve both parents’ involvement in important matters. It does not automatically require the child to spend exactly half their time with each parent.
Legal referenceSections 87 and 88(1)+
Who is a child?
“Child” has the meaning of “child of the marriage” as defined in section 2 who is under the age of eighteen years.
Section 87 supplies the definition used in Part VIII. Section 88(1) gives the Court power to place a child with either parent or, in exceptional circumstances, another suitable relative, child-welfare association, or person.
Case note: The scanned commentary discusses Lee Wei Yen v Halim Berbar [2011] 1 LNS 417 when distinguishing custody from broader parental responsibility and guardianship.
Topic 2
Care, welfare, wishes, and stability
Care and control
This concerns ordinary day-to-day life: the child’s principal home, supervision, school routine, meals, transport, activities, and practical care.
The child’s wishes
The wishes of a child able to express an independent opinion may be considered, but there is no simple rule that a child chooses at a fixed age. Welfare remains paramount.
Children below seven
There is a rebuttable presumption that being with the mother is for the good of a child below seven. It is not automatic and may be displaced according to the circumstances.
Routine and continuity
Consider where the child lives now, who provides care, the existing routine, the proposed change, and whether that change would cause unnecessary disruption.
Brothers and sisters
The Court is not required to place every sibling with the same person. Each child’s welfare may be considered separately.
Parents’ wishes
The parents’ wishes are relevant, as may be the child’s independent wishes, but both remain subject to the overriding welfare principle.
Legal referenceSection 88(2)–(4)+
“The paramount consideration shall be the welfare of the child.”
Section 88(2) makes welfare paramount and, subject to welfare, directs attention to the parents’ wishes and the wishes of a child old enough to express an independent opinion.
Section 88(3) contains a rebuttable—not automatic—presumption concerning a child below seven and specifically mentions the undesirability of disturbing the child’s life through custody changes. Section 88(4) requires each sibling’s welfare to be considered independently.
Topic 3
Access and maintaining relationships
Access enables a parent without day-to-day care to maintain contact and a relationship with the child. There is no universal timetable.
Conditions can be included
A custody order may regulate residence, upbringing, access, and how arrangements between the child and parents will operate.
Travel and relocation
Taking a child outside Malaysia can raise separate issues. A disputed permanent relocation should not be treated as an ordinary access question and may require legal advice.
Legal referenceSection 89+
Orders may contain practical conditions
Section 89(1) permits custody orders to be made subject to conditions. Section 89(2) specifically identifies residence, education, religion, temporary care and control, visits, access at reasonable times and frequency, and a prohibition against taking the child out of Malaysia.
An access arrangement is therefore not limited to naming the parent with custody; an order may explain how the arrangement is to operate.
Topic 4
Child maintenance and reasonable needs
Parental responsibility
A parent does not automatically stop having maintenance responsibility because the child lives with the other parent. Contribution depends on the applicable agreement, order, means, and circumstances.
What maintenance covers
Maintenance includes reasonable needs such as accommodation, clothing, food, and education, assessed with regard to the responsible parent’s means and station in life.
No universal formula
There is no universal 10%, 20%, RM amount, or automatic 50/50 rule. The child’s needs and the parents’ circumstances matter.
Ways to contribute
An arrangement may combine a regular payment with expenses paid directly, such as education, childcare, healthcare, or other child-related costs.
Build the child’s actual expense picture
- Identify reasonable needs.
- Record what each parent currently pays.
- Identify expenses after divorce.
- Consider each parent’s means and circumstances.
- Agree how the needs will be met.
Legal referenceSections 92–94+
Duty, Court orders, and security
A parent must maintain or contribute to maintaining the child, whether the child is in that parent’s custody or another person’s custody.
Section 92 expressly refers to reasonable accommodation, clothing, food, and education, having regard to the parent’s means and station in life, or payment of their cost.
Section 93 sets out the Court’s maintenance powers, including a corresponding power to order a woman to pay or contribute where reasonable having regard to her means. Section 94 permits the Court, in its discretion, to order security for maintenance.
Topic 5
Duration, higher education, disability, and changes
The later applicable event
Child maintenance does not necessarily end at 18. The order may continue until the child turns 18, completes further or higher education or training, or the relevant physical or mental disability ceases—whichever applicable event occurs later.
Tertiary education and training
Further or higher education includes tertiary pathways such as college or university. Relevant vocational or other training may also be covered, with maintenance potentially continuing until that education or training is completed.
Physical or mental disability
Where the child has a relevant physical or mental disability, maintenance may continue beyond 18 until that disability ceases, subject to the applicable order and circumstances.
Changing an order
The Court can vary custody or maintenance orders. Employment, income, schooling costs, needs, or living arrangements may be relevant, but an existing order does not change automatically.
Legal referenceSections 95 and 96+
Duration and variation
Section 95, as amended: the current framework addresses age 18, physical or mental disability, and further or higher education or training. The applicable later endpoint matters. The older wording reproduced in the scanned commentary predates the education amendment and should not be used by itself.
Do not state that every child-maintenance order automatically ends on the eighteenth birthday.
Section 96 allows the Court to vary or rescind a custody or maintenance order where it was based on misrepresentation or mistake of fact, or where there has been a material change in circumstances.
Topic 6
What should parents discuss before a Joint Petition?
Do you agree on joint custody or another arrangement and on responsibility for important decisions?
Where will the child principally live, and how will the normal routine work?
How will contact, weekends, holidays, occasions, collection, and return operate?
What are the reasonable expenses, what contribution is proposed, and which costs will be paid directly?
Legal mapPart VIII of Act 164+
- Section 87: meaning of child.
- Sections 88–91: custody powers, conditions, fitness, and particular custody rules.
- Sections 92–95: maintenance duty, Court powers, security, and duration.
- Section 96: variation or rescission of custody and maintenance orders.
The exact proposed terms and evidence required depend on the family’s circumstances.