Joint Custody or Sole Custody in Malaysia: What the Courts Are Actually Deciding in 2025 and 2026

"I don't want to take the children away from him. I just don't want to lose them."

A mother said that to me in my office. A few weeks later, a father sat in the same chair and said something that sounded like the opposite, but came from exactly the same place. He said he was not trying to take the children from their mother. He just did not want to become a visitor in his own child's life.

Two parents. Same fear. Two completely different sets of words.

I see that same split every time I look at what people type into Google before they ever call a lawyer.

Fathers search "can I get joint custody of my children".

Mothers search "can I get sole custody".

It is worth sitting with that for a moment. Before a single document is filed, before either parent has spoken to a lawyer, they have already been handed a script. The father assumes the most he can ask for is a share. The mother assumes she has to claim the whole thing or risk losing everything. Neither of them chose that script. They absorbed it from their families, from friends who went through a divorce badly, and from an internet full of articles written for a different country.

Hence, I went and read the most recent reported custody decisions from our own courts, from 2025 and 2026, to see what the position actually is.

What I found is that the courts are having a very different conversation from the one happening in the search bar.

A note before I go further. This article deals with non-Muslim marriages under civil law, specifically the Law Reform (Marriage and Divorce) Act 1976 and the Guardianship of Infants Act 1961. Custody in the Syariah courts operates under a separate framework.

Parenting and partnership are two separate things. The court knows the difference.

Both search terms are asking the wrong question

The father asking "can I get joint custody" usually does not want a share of decision-making. What he wants is to see his child on a Wednesday and put him to bed on a Saturday.

The mother asking "can I get sole custody" usually does not want to erase the father from the child's life. What she wants is for the children to stay in the home they know, with her, without being uprooted.

Both of them are describing care and control. Neither of them is describing custody. And because they do not know the difference, they walk in asking for the wrong thing, and sometimes fight for two years over something they were never actually in dispute about.

Custody and care and control are not the same thing

This is the single most useful thing you can understand before you speak to anybody about your children, and the 2026 High Court decision in Lai Bing Sen v Tran Thi Quynh Lien [2026] MLJU 2410 sets it out more clearly than any case I have read in years.

Custody is the bundle of rights and responsibilities to make the significant decisions in a child's life. His education. His religion. His medical treatment. His general upbringing. It is the authority to decide, not the right to be present.

Care and control is the day-to-day physical charge of the child. Who he lives with. Who packs his school bag, who takes him to the clinic at 2am, whose house he wakes up in.

Access is the time the other parent spends with the child, which can include staying access, meaning overnight and weekend stays.

The two can sit with one parent, or they can be split. In Lai Bing Sen, the High Court in Melaka held that joint custody ordinarily refers to the sharing of decision-making, and that this is entirely compatible with care and control being placed with one parent and access to the other.

Read that again, because it dissolves most of the fear on both sides.

Joint custody does not mean the child is shuttled between two homes. It means both parents keep a voice in the decisions that shape his life.

Sole care and control does not mean the other parent has been written out. It means the child has one settled base.

A father can have joint custody and still not have the children living with him. A mother can have care and control and still be sharing custody. In my opinion, if more people understood this from the get go, a significant number of custody disputes in this country would end at the first mention.

What the law actually says

Two provisions do most of the work:-

Section 88(2), Law Reform (Marriage and Divorce) Act 1976. In deciding custody, the paramount consideration is the welfare of the child. Subject to that, the court has regard to the wishes of the parents, and to the wishes of the child where he or she is of an age to express an independent opinion.

Section 88(3). There is a rebuttable presumption that it is for the good of a child below the age of seven to be with the mother.

I want to be straight with you about that presumption, because a lot of content online quietly leaves it out. It is real, and for children under seven it matters. However, it is rebuttable, which means it can be displaced by evidence, and it goes to care and control rather than to who makes decisions about the child.

Then there is section 3 of the Guardianship of Infants Act 1961, which the High Court in Amy Lee Wai Yee v Norbert Fernandez [2025] MLJU 4876 went out of its way to remind both parents of. Both parents bear equal responsibility for the support, health and education of their children. The law draws no distinction between the rights and duties of a mother and those of a father.

That is the actual starting point. Not the one in the search bar.

What the 2025 and 2026 cases show

I should say plainly that there are not many recent reported Malaysian decisions dealing directly with joint custody. Three are worth knowing.

Lai Bing Sen v Tran Thi Quynh Lien [2026] MLJU 2410, High Court, Melaka

The most recent authority. The court held that where neither parent is alleged or shown to be unfit, the continued involvement of both parents in the significant decisions concerning the child's education, health and upbringing is ordinarily in the child's interest, and that the law does not require that one parent be excluded from that role upon divorce.

Joint custody was granted. Care and control remained with the father, where the child had his settled home and schooling, and the mother received generous and defined staying access at her residence in Melaka, at weekends and during the school holidays.

Two other points from this case are worth carrying with you.

First, the court rejected a vague order that the child "reside with each parent respectively", describing it as an agreement to share rather than a workable order. Open-ended arrangements simply move the fight to a later date, and it is the child who pays for those fights. If you are proposing an arrangement, propose one that can actually be obeyed and enforced.

Second, on joint custody the court built in a practical mechanism for deadlock. The parent with day-to-day care was given an immediate casting vote in matters of health and emergency, where waiting for a court would be too slow to help the child, while education and religion were reserved so that either parent could seek the court's directions. Joint custody was kept genuinely joint, without leaving the child stranded in an emergency.

Amy Lee Wai Yee v Norbert Fernandez [2025] MLJU 4876, High Court, Shah Alam

Four children. The judge personally interviewed all four of them and took into account what they said about where they wished to live and about their relationships with each parent. The court stated that hearing directly from the children gave valuable insight into their emotional well-being, and that those interviews heavily influenced the outcome.

The court also refused to separate the siblings, holding that the children relied on one another for comfort and companionship, and that breaking that bond would unsettle the emotional stability they had found in each other.

Joint guardianship and custody went to both parents. Physical care and control went to the father. The mother received weekend access including overnight, from Friday 5pm to Sunday 6pm.

The reasoning on joint custody is the part I would want every parent to read. The court said joint parenting is more advantageous because it reminds parents that their obligation to co-parent is shared and continuing, and that it deliberately left the door open for the children to maintain and strengthen their bond with their mother.

Wong Shu Fung v Alaric Lau Hon Phung & Anor [2025] MLJU 4868, High Court, Shah Alam

Both children were above the age of seven, so the section 88(3) presumption did not apply.

The court found no compelling grounds to withhold joint guardianship and custody from either parent, holding that it is the children's right to have the care and affection of both parents, and that parents should be encouraged to cooperate so that the children can equally enjoy the love and support of both. The court said this goes some way to protect children from the fear of losing one of their parents.

Custody was shared. Care and control went to the father. The mother received unsupervised access on alternate weekends.

The line from this judgment that I keep coming back to is that access is fundamentally the right of the child, and not of the parents. That is a very different way of thinking about a weekend.

Reading the three together

Four things stand out.

One. Divorce is not treated as a reason to remove a parent from a child's life. Where neither parent is unfit, the courts appear increasingly willing to keep both parents in the decision-making seat.

Two. Welfare now clearly includes emotional and mental well-being, not just physical care. In Amy Lee the court weighed the children's distress, their anxiety, and their need to rebuild a sense of security. In Wong Shu Fung the court considered the potential emotional harm and the impact on the children's mental health. Who has the bigger house is not the question.

Three. The child's own voice carries real weight. The Act does not fix an age. In my experience, from around ten upwards a child's expressed views start to matter meaningfully, and by twelve they matter a great deal. This is also why coaching a child is so dangerous. Judges speak to children directly, and they can tell.

Four. The court is willing to give a damaged relationship a second chance. In both of Justice Julie Lack's decisions the parent who did not receive care and control was given structured access precisely so that trust could be rebuilt over time, rather than being permanently pushed out over past difficulties.

And here is something I noticed reading them together, which I want to put carefully. In all three cases, care and control went to the father. Three reported cases is a small number and I would not read a swing of the pendulum into it. What I would say is this: once a child is past seven, the assumption that the children automatically stay with the mother is not the court's starting point. It has to be shown.

So can a father get joint custody in Malaysia?

Yes. On the recent authorities, where he is not shown to be unfit, joint custody is a realistic outcome rather than a long shot.

However, joint custody is not the thing most fathers are actually asking about. If what you want is your child living with you, that is care and control, and it is a separate and harder application that turns on stability, continuity, your actual involvement in the child's daily life, and, if the child is old enough, what the child says.

So can a mother get sole custody in Malaysia?

Yes, but it is not the default, and it is not usually what a mother needs.

Sole custody means asking the court to remove the father from decisions about his child's education, religion and health. Courts will do that where there is a genuine reason, and unfitness, safety concerns or a real inability to co-parent are genuine reasons. What the recent cases show is that they will not do it simply because a marriage ended badly.

If what you want is for your children to stay in their home with you, ask for care and control and defined access. That is a much stronger application, and it is very often granted alongside joint custody.

I say this to clients often enough that it has become a rule of the office. Parenting and partnership are two separate things. Somebody can be a horrible spouse and still be an excellent parent, and the court knows the difference.

What actually decides these cases

It is not what either parent feels entitled to. It is what can be evidenced. On the recent decisions, the court is looking at:-

• Stability and continuity, meaning the home, the school, the routine and the people the child already knows

• Which parent has genuinely been doing the day-to-day caregiving, not just paying for it

• The child's emotional and psychological attachment, including to siblings

• The conduct of each parent, and whether one has undermined the child's relationship with the other

• Any physical or emotional harm, including corporal punishment, which the court in Wong Shu Fung said may call a parent's fitness into question

• The child's own wishes, where he or she is old enough to express an independent opinion

• Whether the arrangement being proposed is workable and specific enough to be obeyed

  
  

Bearing this in mind, the most useful thing you can do right now is not to rehearse your grievances. It is to document your parenting. School runs, medical appointments, homework, sick days, the WhatsApp messages where you coordinated a fever at midnight. It's not what you are entitled to. It's what you can secure.

Frequently asked questions

What is the difference between custody and care and control in Malaysia?

Custody is the right to make the significant decisions in a child's life, including education, religion and health. Care and control is the day-to-day physical charge of the child, meaning who the child lives with. They can be held by one parent or split between both. Joint custody with care and control to one parent is a common and workable outcome.

Can a father get joint custody in Malaysia?

Yes. In the 2026 High Court decision in Lai Bing Sen, the court held that where neither parent is shown to be unfit, both parents remaining involved in the significant decisions about the child is ordinarily in the child's interest.

Does the mother automatically get custody of a child under seven?

No. Section 88(3) of the Law Reform (Marriage and Divorce) Act 1976 creates a rebuttable presumption that a child below seven should be with the mother. It is a presumption about care, it can be displaced by evidence, and it does not decide who makes decisions about the child.

Does joint custody mean the child spends half the time with each parent?

No. Joint custody is about shared decision-making. In Lai Bing Sen the court specifically rejected an unstructured shared residence arrangement as unworkable and contrary to the child's need for stability and continuity of schooling.

At what age can a child choose which parent to live with in Malaysia?

The Act sets no fixed age. Section 88(2) requires the court to have regard to the child's wishes where he or she is of an age to express an independent opinion. In Amy Lee the judge interviewed all four children personally and their views heavily influenced the outcome. As a general guide, a child's views begin to carry real weight from around the age of ten.

If both parents agree on joint custody, will the court simply approve it?

Not automatically. Lai Bing Sen makes this clear. The court has an independent duty to satisfy itself that what is proposed is genuinely for the child's welfare. The parents' agreement is a consideration, not a conclusion.

Will the court separate siblings?

It is reluctant to. In Amy Lee the court held that the children relied on each other for comfort and companionship, and that separating them would risk unsettling the emotional stability they had found in one another.

Can a custody order be changed later?

Yes. Custody jurisdiction is protective and continuing, and a custody order is never truly final. The welfare of the child remains the paramount consideration throughout, and orders can be varied where there is a material change in circumstances.

Before you type anything else into that search bar

If you take one thing from the recent cases, let it be this. Our courts are moving towards the view that a divorce between two adults should not end a child's relationship with either of them.

That does not mean everything is shared equally, and it does not mean the outcome is the same in every home. Where there is genuine risk to a child, the court will act, and it should. However, the fear that sends fathers searching for joint custody and mothers searching for sole custody is, in a good number of cases, a fear of something that was never actually going to happen.

I am not on the mother's side or the father's side. I am on your child's side. The goal is to raise children who do not need to recover from their childhood, and I have yet to see a two-year custody fight that got anybody closer to it.

If you are trying to work out where you actually stand, and whether what you need is custody, care and control, or simply a properly defined access order, you can WhatsApp me at 012-5325660 and we will arrange a time to talk it through. Whenever you are ready.

Here we do it differently. Divorce doesn't have to be ugly all the time.

Piya Balakrishnan is the founder of Piya Law Chambers, a boutique family and matrimonial law firm in Malaysia practising under civil law. This article is general information on Malaysian law as at 2026 and is not legal advice for your situation.