Custody doesn’t automatically mean sole guardianship, Court of Appeal rules

 Bench restores divorced mother’s joint guardianship despite upholding father’s custody of their 13-year-old son.

A three-member Court of Appeal bench said that courts must justify removing a parent’s legal role as guardian.

PUTRAJAYA:

The Court of Appeal has ruled that awarding a child’s custody to one parent after a divorce does not automatically entitle that parent to sole guardianship, saying the two serve different legal purposes.

A three-member bench led by Justice Faizah Jamaludin said that while a child’s welfare remains the overriding consideration, a court must separately justify removing a parent’s legal role as guardian.

“The court must also ensure that the order made is no wider than what the welfare of the child requires.

“A variation order must be practical, proportionate and child-centred. It should not unnecessarily extinguish the parental role of either parent,” she said.

Faizah made the remarks in a judgment partly allowing an appeal by a human resources manager against a Seremban High Court order granting her former husband, a businessman, sole guardianship and custody, care and control of their 13-year-old son.

Justices Ahmad Fairuz Zainol Abidin and Ong Chee Kwan were also on the bench.

The couple divorced in 2018 under a consent order granting them joint guardianship. The woman was awarded custody, care and control of the child, while her former husband was given access and ordered to pay RM1,200 a month in child maintenance.

Last year, the High Court varied the arrangement after finding there had been a material change in circumstances, transferring custody, care and control, as well as sole guardianship, to the former husband.

The Court of Appeal agreed that the child’s expressed wish to live with his father, his emotional distress and the breakdown of the previous arrangement justified transferring custody, care and control to the father.

However, it held that the High Court erred in removing the woman’s role as guardian, saying custody relates to a child’s day-to-day care, while guardianship concerns major decisions involving matters such as health, education and religion.

The judges said there was no finding that the woman was unfit to remain a guardian. They added that while the evidence justified changing the child’s primary residence, it did not warrant excluding her from important decisions affecting his future.

The court therefore restored joint guardianship while allowing the father to retain custody, care and control.

It said the father could make routine day-to-day decisions, but major decisions involving the child’s education, religion, serious medical treatment, passport applications, overseas travel or change of residence should, where reasonably practicable, be discussed with the mother.

Either parent may return to the High Court if they are unable to reach an agreement.

The court also upheld the High Court’s order requiring the father to bear the child’s educational expenses, granting the mother overnight access on alternate weekends, and directing that the child’s original documents remain with the ex-husband as he has day-to-day care of the child.

J Gunamalar and Ching Jee Joo appeared for the woman, while K Indran Karuppiah and J Annapurani represented the man. - FMT