- 妻子反驳上述的说法，她表示可以将孩子带回太平，并在姐姐的协助下照顾孩子，确保孩子的福利受到保障。她解释脾气暴躁的原因，是由于孩子没有在身边的心理压力所导致的； 她也指被告表示她曾想堕胎的指控是不真实的，因为没有任何医药报告作为证据。
- 1961年未成年人监护法令第5(1)条文下，小孩父母在抚养权方面，双方的权利是平等的。父亲作为监护人，除非能证明父亲不再活着， 否则母亲必须说明她应该被赋予抚养权的原因。
- 其实在此个案中，无论孩子的抚养权归谁，双方都将由身边的亲人来帮忙照顾孩子。丈夫没有经济能力，还从戒毒所逃走；而妻子则需要回到太平并寻找工作。 因此其实双方的立场大致相同。
- 有一个假设，即年幼的孩子会比较适合与母亲在一起生活， 但是它只是一个假设，而不是决定性因素。 法庭首要考虑的还是孩子的福利。从孩子的福利角度来看，丈夫以及家婆对孩子的熟悉程度要好于妻子。而且妻子未能说明孩子若在太平生活时，能为孩子准备怎么样的生活条件。
- 尽管父亲被指控为吸毒者，确实没有证据表明孩子没有得到很好地照顾；也没有证据表明他试图使自己的孩子成为吸毒者。 事实上孩子一直与父亲同住。 在这种情况下，法庭认为保持孩子现状是最好的。
- This is an OS application for custody of a two-year- old child by his mother.
- The applicant is the mother of a child Barath a/l Sugumaran born on 25.01.1994, the father of the child is the first defendant. The second defendant is the mother of the first defendant.
- The applicant had stayed with the defendants in the latter’s house for about two months after the child was born. She had then left to return to Taiping, leaving behind the child in the care of the defendants to this day.
- From Taiping, the applicant had telephoned the second defendant several times to inquire about her child. Between March and July 1995, the applicant had visited her child in the defendants’ house. The applicant, however, was denied access when the first defendant was admitted to Pusat Serenti for a period of two years. The first defendant had escaped and is now a fugitive.
- After July, when the applicant wanted to see her child, she was refused access by the second defendant.
- The applicant further alleges:
(a) due to a caesarian birth and slow recovery she was forced to stay with the defendants. The second defendant did not take care of her and asked the applicant’s mother to take the applicant back to Taiping. That is why she left the child with the second defendant;
(b) the first defendant is a drug addict to such an extent he was unable to find a job, did not provide for the applicant, and he even smoked drugs in front of her; and
(c) that in February 1995, she had gone to the second defendant’s house to see her child but instead she was beaten by the second defendant and a friend of the first defendant.
- The defendants opposes the application and alleges:
(a) before the child was born she had mentioned her intention to surrender her child to her sister in Kuala Kangsar, and that she does not intend to look after the child. Her sister although married for five years is childless, and in the original appearance on 04.09.1995 had mentioned the child will be looked after by the sister;
(b) that during pregnancy she had not wanted the child, indeed wanted the unborn child to die;
(c) the applicant tried to injure the child after it was born; and
(d) that the applicant is not in a situation to look after the child:
(i) the address she has given is the house of one Supramaniam a/l Narayanan, who is married with nine children staying at that address;
(ii) there is no evidence where she stays, whether in a rented room or a house;
(iii) she works in the Selayang wholesale market and has no fixed hours;
(iv) she is prone to violence and is rough of language and manners; and
(v) there is no allegation that the child is in any way abused or ill-treated by the defendants, or that the second defendant is unsuitable. The second defendant is a 56-year-old housewife whose husband is an odd-job labourer, with sons who are working, and two adopted children, 12 and 20 years of age. The child has been taken for innoculations etc. Instead, a change of custody would uproot the child.
- The applicant’s reply is, briefly:
(a) the applicant will take the child back to Taiping. The applicant will look for a job, and she will be assisted by her sister to look after the child, and the welfare of the child is ensured under the applicant’s mother;
(b) that her bouts of violence was a result of the psychological pressure in not having her child;
(c) that she let her child drop is not true. If true there should be a medical report;
(d) there is no evidence that the applicant is abusive to children; and
(e) under Section 88 Guardianship of Infants Act 1961, the presumption is for the mother to have custody, and cases mentioned by the defendants are not applicable as they are in disputes between father and mother for custody.
- With regard to the legal aspects of this application, the starting point is the Guardianship of Infants Act 1961 (‘the Act’).
“Subject to s 10, the father of an infant shall be the guardian of the infant’s person and property:
Provided that the court or a judge may make such order as it or he thinks fit regarding the custody of the infant, and the right of access thereto of either parent, and may vary or discharge such order at any time on the application of either parent.”
“The guardian of the person of an infant shall have the custody of the infant, and shall be responsible for his support, health and education.
“Subject to s 10, where an infant has no father living, the mother of the infant shall be the guardian of his person and property:
Provided that the court or a judge may appoint some other person to be the guardian of the infant’s person and property, or either of them to act jointly with the mother.”
- The father, as guardian, would normally have custody of the child, unless the mother can show the father is no longer alive; or if he is still alive, grounds why she should have custody. In making any order under the powers conferred upon it by the Act, the court or judge is charged by Section 11 as follows:
“The court or a judge, in exercising the powers conferred by this Act, shall have regard primarily to the welfare of the infant and shall, where the infant has a parent or parents, consider the wishes of such parent or both of them, as the case may be.”
- In cases where parents fight over custody, it is common to throw allegations at one another. However, whether one parent has wronged the other is not the concern in deciding what is in the best interests of the welfare of the child. It is not the role of the court or judge to reward or punish either parent by awarding custody to one parent or the other. The primary concern is the welfare of the child. The court is obliged only to consider the wishes of the parents. 一方父母对另一方做错了什么，是于决定哪方能给小孩最好的福利无关。最主要的考量是小孩的福利。法官也只会考量双方父母对照顾小孩的意愿。
- The term ‘parent’ is not defined in the Act. That it means the natural father or mother is clear since the Act makes no reference to or recognizes any other form of relationship. Hence, the grandparents or uncles and aunts have no special claim or rights as the natural parents; although the fact of blood relationship may be grounds for consideration in weighing applications against persons less closely related or not related at all. In taking consideration of the wishes of the parents, the first defendant is as much a parent as the applicant.
- It is clear in this case, no matter into whose custody the child is given, the grandparents and relatives play a role in helping to look after the child. The first defendant who is the father relies on the second defendant as grandmother to look after the child. The applicant also relies on her mother and her sister to help look after the child. While it is averred the first defendant has no job and is a fugitive, the applicant also speaks of returning to Taiping and looking for a job. Hence, on the question of who will actually look after the child, and having a job, both parties are in roughly similar position.
- There is generally a presumption that a young child is better off with its mother than father. It is, however, only a presumption and not on its own necessarily a decisive factor. It must be weighed together with all other factors relevant to the question of the primary consideration, which is the welfare of the child.
- From the point of view of the welfare of the child, the familiarity and certainty of what the child is used to now, living with the first and second defendant is preferable to the unfamiliarity and uncertainty of life in Taiping. The applicant in making her application failed to show in certain terms what kind of living conditions the child will have in Taiping. There is indeed no evidence that the child is not well looked after or cared for by the defendants. Although the father is an alleged drug addict, there is no evidence he seeks to make his child a drug addict. The child in fact had always stayed with the defendants, who are the natural father and the paternal grandmother respectively. The child is living in the house the father ordinarily resides, and it cannot be said he has no custody. Nothing has been put before the court which can be compared with to show that the welfare of the child is better attended to in Taiping with the mother. In such circumstances, the status quo should remain.
- The onus is on the applicant to show that the applicant offers such significant improvements or advantages to the welfare of the child as to warrant a change of custody, and justify the disturbance from change of environment that such a custody order would visit upon the child, particularly one of very tender years.
- This order that the application is denied is really one for the status quo to remain because the applicant has failed to provide evidence in her application that the welfare of the child will be better looked after if she is given custody.
- Hence, the application is denied, with the further order that the applicant be given reasonable access to her child. Regarding the fact of the current guardianship and therefore custody of the child being in the hands of the father, a further order is made that the grandmother be appointed as additional guardian which the court feels better safeguards the welfare of the child.
Source: Thavamani Deve a/p Govindasamy v. N Sugumaran a/l Neelmehan & Anor  4 MLJ 195. High Court Shah Alam. Abdul Wahab Patail JC
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#坐月#家婆没有照顾她 #吸毒者 #双方的错与孩子的抚养权无关 #不会将孩子的抚养权判给一方来惩罚对方 #公公婆婆没有争争抚养权的权利 pg14 #公公婆婆照顾小孩 pg15 #亲戚照顾小孩 pg15 #双方的情况都是大同小异 pg15 #更换环境 #更换新环境 pg17 #证据证明小孩没有被照顾好 #没有好好照顾小孩
#抚养权归父亲 #抚养权归丈夫 ##抚养权归男方