Custody & Guardianship

1 Who is a “guardian”?

A guardian is a person who has powers over a child’s upbringing, care, discipline and religion.

2 What is “custody”?

“Custody” is the right over a child, including the right to have the care and control of the child.

A parent may have guardianship over a child, while the other parent may have the custody of the child. For example, a father may be a guardian of his child, but the mother may have the custody over the child.

3 What is “joint custody”?

When both parents have ‘joint custody’ of a child, it means that both parents have a say in the child’s upbringing, but one of them physically has the child living with him [or her].

4 What is “access”?

‘Access’ is the right of a parent to visit and see a child who is in the care and control of the other parent.

Normally, if custody has been granted to a parent, the court will give the other parent the right of access. The court may specify the time of access. For example, a parent may be granted access to a child at weekends between 9am to 6pm. It could be on Sundays between, say, 7am to 7pm.

5 What is the law governing the guardianship of a child?

The law governing the guardianship of a child is the Guardianship of Infants Act 1961.

6 Can a child under the age of 18 decide his own religion?

No. Any person under the age of 18 cannot decide his own religion. His religious belief is to be decided by his father, his lawful guardian.

The Federal Constitution provides that the religion of a child under 18 is to be decided by the guardian on his behalf until he becomes an adult.

In 1990, the Supreme Court decided that the right of religious practice of a girl of 17 years of age must be exercised by the guardian on her behalf until she is 18. Until then, she cannot decide her religion on her own.

7 Who has the right of guardianship over an illegitimate child?

The mother has the rights over an illegitimate child, and therefore, the mother is the guardian of the illegitimate child.

The father of an illegitimate child cannot claim guardianship over the child. The courts will not entertain any application for guardianship of an illegitimate child.

8 Can the court decide on the custody of an illegitimate child?

No, the court will not entertain any claim for custody of an illegitimate child. Neither the father nor the mother of an illegitimate child can apply for an order of custody.

Copyright Johore Bar