In the failure and dissolution of a marriage, the care and custody of and the access to children become key concerns of spouses who are going their separate ways. Much stress and anxiety arise; the stakes are irreducibly personal. Important and strategic decisions need to be taken; urgent steps and applications have to be made to protect the interests of the parties. A clear and confident understanding of how the welfare principle is actually applied, how the tender years presumption is engaged and rebutted, how the courts approach joint custody and shared care, and how an order, once obtained, is enforced, varied, or protected against breach becomes critical.

This book provides direct and practical guidance on key factors to be considered in handling a child custody matter. Throughout, readers are reminded of the welfare of the child, which is the paramount principle which determines the decision of the court when making custody, access and maintenance orders. The relevant statutory provisions are addressed, and the key case authorities summarised. Pre-emptive steps to prevent the relocation of children overseas are discussed and the use of port alert orders as well as other enforcement measures are explained.

The valuable information provided in this guide includes advocacy and strategy in custody proceedings, a clear account of procedure from the filing of custody proceedings to judgment, measures to handle domestic violence, and instructive checklists and drafting tips. The useful chapter on mediation, collaborative practice and alternative dispute resolution in custody proceedings offers ideas for the resolution of custody conflicts away from the courts.

The deep dive into all relevant matters concerning the determination of the custody of children meets an important need of family law practitioners, counsellors, judges, disputing parties and all those interested in the welfare of children following a contested custody dispute.

Key Features

• Focused treatment of issues relevant to the determination of custody, access and maintenance.
• Practical advice on matters encountered in actual practice.
• Summaries of key child custody authorities.
• Advice on pre-emptive measures to restrain removal, protect against molestation and ensure meaningful access.
• Instructive checklists and quick reference guide.
• Forms and precedents including specimen non-molestation injunction order, access schedule and consent parenting plan.
• Outline of legal aid in Malaysian family proceedings.

Table of Contents

1. Family Law in Malaysia: The Constitutional and Legislative Architecture
2. The Power of the Court to Make Custody Orders
3. The Welfare Principle: Foundation, Dimensions and Application
4. Factors in the Judicial Determination of Custody
5. The Tender Years Presumption: Mechanics, Rebuttal and Application
6. Joint Custody, Care and Control, and the Architecture of Shared Parenting
7. The Right of Access: Principles, Drafting and Enforcement
8. Hadhanah: Custody in Muslim Families
9. Child Maintenance: The Financial Framework
10. Domestic Violence, Injunctions and the Custody Assessment
11. Variation of Custody Orders
12. Enforcement of Custody and Access Orders
13. International Child Abduction: Prevention and Recovery
14. Procedure in Custody Proceedings: From Filing to Judgment
15. Custody Orders Subject to Conditions
16. Advocacy and Strategy in Custody Proceedings
17. Welfare of Each Child Considered Independently: Sibling Issues
18. Current Issues and Reform Directions in Malaysian Child Custody Law
19. Injunctions in Custody Proceedings: Restraint of Removal, Non-Molestation and Ouster Orders
20. Mediation, Collaborative Practice and Alternative Dispute Resolution in Custody Proceedings
21. Comparative Perspectives: Custody Law in Australia, England and Singapore
22. The Child at the Centre: A Concluding Reflection
23. A Practitioner's Checklist and Quick Reference Guide
24. Forms and Precedents: A Practical Reference
25. Appendix – Legal Aid in Malaysian Family Proceedings