Malaysia Case Law: Decisions & Judgments | LexChat

Malaysia Case Law

Tender years doctrine

  • 28 Jul 2025

    JEYARINE MONICA JOAN POOBAL ROYAN KUMARESAN A/L SOUNDARARAJAN

    Citation
    BA-24F-108-05/2024 (Mahkamah Tinggi)
    Court
    High Court
    Case number
    BA-24F-108-05/2024 (Mahkamah Tinggi)

    Given the child's age (under seven), the recent Level 2 ASD diagnosis, the need for stability, continuity of therapy and preschool routine, and the Plaintiff's position as primary caregiver, the court awarded joint guardianship and custody with physical care and control to the Plaintiff; limited Defendant's unsupervised access to Wednesdays 4:00–8:00 pm and overnight access on alternate weekends (Saturday 10:00 am to Sunday 7:00 pm) with no interstate travel without prior written consent; ordered child maintenance RM1,500/month payable from February 2023 with a 5% increase every two years and…

  • 2 Dec 2024

    B O O Y O O

    Citation
    WA-24F-186-07/2024 (Mahkamah Tinggi)
    Court
    High Court
    Case number
    WA-24F-186-07/2024 (Mahkamah Tinggi)

    The court found the tender years presumption rebutted on the evidence that the Plaintiff lacked financial stability, faced pursuit by debt collectors, had a pattern of unstable relocations and depended on external support; the Child was settled in a stable environment with the Defendant and his parents; disputed allegations against the Defendant were unsubstantiated in affidavit evidence. Consequently custody, care and control were awarded to the Defendant to protect the Child's welfare, guardianship was ordered jointly, and the Defendant was ordered to pay MYR750 monthly to the Plaintiff for…

  • 25 Mar 2024

    N A H H A H

    Citation
    WA-24F-141-04/2022 (Mahkamah Tinggi)
    Court
    High Court
    Case number
    WA-24F-141-04/2022 (Mahkamah Tinggi)

    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…

  • 19 Feb 2024

    H E K I N G

    Citation
    WA-24F-113-04/2023 (Mahkamah Tinggi)
    Court
    High Court
    Case number
    WA-24F-113-04/2023 (Mahkamah Tinggi)

    Joint guardianship was awarded but custody, care and control were granted to the Respondent because the children had continuously resided with him and removal would disrupt their welfare; the presumption under s88(3) was rebutted on balance of probabilities by the established facts of primary caregiving and stability; Applicant was granted liberal access, minimal spousal maintenance (MYR250 monthly) based on means and needs, shared responsibility for children's expenses and half of the proven mobile bill (MYR1,500).

  • 21 Nov 2023

    KANNAN A/L RAJARATNAM THEVITTHRA A/P VISWANATHAN

    Citation
    BA-24F-90-04/2023 (Mahkamah Tinggi)
    Court
    High Court
    Case number
    BA-24F-90-04/2023 (Mahkamah Tinggi)

    The court granted the mandatory injunction because preserving the status quo by returning the child to the mother best served the child’s welfare under s.88 LRA 1976, there was a bona fide issue to be tried, the balance of convenience favored the mother, damages were inadequate, there was insufficient credible evidence of abuse to rebut the tender years presumption, and the AH had breached the court’s interim order.

  • 27 Mar 2023

    N O Y S I C

    Citation
    WA-24F-352-10/2022 (Mahkamah Tinggi)
    Court
    High Court
    Case number
    WA-24F-352-10/2022 (Mahkamah Tinggi)

    In absence of credible evidence of abuse, neglect or incapacity, and given the child's interest in maintaining a relationship with both parents, the court awarded sole custody, care and control to the mother but imposed joint guardianship and refused to impose supervised or severely restricted access; instead the court ordered incremental unsupervised access and conditioned overseas travel on advance notice to protect the child's welfare.

  • 26 Aug 2022

    Min Sam Joyce Choong Yian May

    Citation
    WA-24F-51-02/2021 (Mahkamah Tinggi)
    Court
    High Court
    Case number
    WA-24F-51-02/2021 (Mahkamah Tinggi)

    The court found the Child was not abducted and Malaysia had jurisdiction; the plaintiff failed to rebut the s88(3) presumption that a young child should be with her mother; given the Child's developmental needs (autism spectrum symptoms), continuous caregiving by the mother, and the acrimonious parental relationship, it is in the Child's welfare to remain with the mother; accordingly the Defendant was granted sole guardianship and custody while the Plaintiff was granted limited access; no maintenance was ordered against the Plaintiff; costs were awarded against the Defendant.

  • 22 Jul 2022

    ELAINE LEE MING LI NG YEW MING

    Citation
    WA-24F-337-11/2021 (Mahkamah Tinggi)
    Court
    High Court
    Case number
    WA-24F-337-11/2021 (Mahkamah Tinggi)

    The presumption under section 88(3) was not rebutted because there was no evidence the mother was unfit; the child's welfare favored remaining with the mother as primary carer. However, equality of parental rights and the child's interest in an ongoing relationship with both parents required joint guardianship and custody. There was no evidence of risk necessitating supervised access, so unsupervised and overnight access was ordered on an alternate-weekend basis. Maintenance was set at MYR700 monthly with a 5% biennial increment and medical and education costs to be shared equally.