N A H H A H

N A H H A H

The statutory presumption in s88(3) favouring placement of a child of tender years with her mother was not rebutted because psychiatric and evaluation reports did not establish that the mother was unfit; the child's welfare as paramount consideration required placement of 4‑year‑old LIN with her mother while older siblings remain with the father given their expressed wishes and significant age gap; joint custody was inappropriate due to acrimony; accordingly sole custody of LIN awarded to Plaintiff and sole custody of VIN and HIN awarded to Defendant with access provisions and no maintenance to Plaintiff for LIN.

Citation
WA-24F-141-04/2022 (Mahkamah Tinggi)
Parties
Plaintiff (anonymised): NAH; Defendant (anonymised): HAH
Court
High Court
Jurisdiction
Malaysia
Judgment Date
25 March 2024
Case Number
WA-24F-141-04/2022 (Mahkamah Tinggi)
Procedural Posture
Originating Summons (family Law Custody) / Final Judgment
Outcome
Plaintiff awarded sole custody, care and control of LIN; Defendant awarded sole custody, care and control of VIN and HIN; both parties granted access to children not in their custody; no child maintenance awarded to Plaintiff for LIN.
Legal Topics
Custody, Access, Child Maintenance, Mental Health Evaluation, Tender Years Doctrine, Judicial Interview of Child
Source Language
Malay/English
Family Law Child Welfare Guardianship Matrimonial Law Custody Access Child Maintenance Mental Health Evaluation +2 more

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Parties

NAH

Plaintiff (anonymised)

HAH

Defendant (anonymised)

Procedural Posture

Originating Summons (family Law Custody) / Final Judgment

Legal Issues

  1. 1 Whether Plaintiff entitled to sole custody, care and control of youngest child LIN
  2. 2 Whether defendant rebutted statutory presumption in section 88(3) that a child under seven should be with mother
  3. 3 Whether the child(ren) should be interviewed by the Judge

Ratio Decidendi

The statutory presumption in s88(3) favouring placement of a child of tender years with her mother was not rebutted because psychiatric and evaluation reports did not establish that the mother was unfit; the child's welfare as paramount consideration required placement of 4‑year‑old LIN with her mother while older siblings remain with the father given their expressed wishes and significant age gap; joint custody was inappropriate due to acrimony; accordingly sole custody of LIN awarded to Plaintiff and sole custody of VIN and HIN awarded to Defendant with access provisions and no maintenance to Plaintiff for LIN.

Court Disposition

Plaintiff awarded sole custody, care and control of LIN; Defendant awarded sole custody, care and control of VIN and HIN; both parties granted access to children not in their custody; no child maintenance awarded to Plaintiff for LIN.

Orders

  • Plaintiff to have sole custody, care and control of LIN
  • Defendant to have sole custody, care and control of VIN and HIN