How a father can obtain custody of an illegitimate child?

In this world, children can be divided into three categories such as legitimate,
illegitimate and legitimated child. Out of this 3 categories Illegitimate child is the most
unfortunate one where he is degraded by his own status and is denied of his rights because of
his status. An illegitimate child is a child which conceived and born out of a lawful wedlock
and is considered as filius nullius or son of nobody. That means parentage which is a legal
relationship between children and parents created by their birth in consequences of a legal
marriage contract entered by the parents does not exist. However, an illegitimate child can be
legitimated by statute or by procedure.
Paternity is a father-child relationship which only established through marriage and it
plays a great role in establishing legitimacy of a child. Without paternity a child is deemed to
be illegitimate. It is very important to ascertain a new born childs legitimacy to make sure
his rights are established. The childrens right in general is as follows: The rights to life and
equal life chances, the rights to parentage and legitimacy, the rights to fosterage, the rights to
custody, the rights to maintenance, the right to succession and inheritance and the rights to
socialization and general care.
The Guardianship of Infants Act 1961 (GIA) has provisions empowering the court to
appoint a guardian over the person and property of a child. The Act states that a mother and a
father have equal rights and authority over a child. The court exercises its powers based
primarily on the welfare of the child and shall consider the wishes of a parent and it applies to
both legitimate and illegitimate children. A guardian is the one who has powers over a childs
upbringing, care, discipline and religion.
Custody refers to the state of having certain rights over a child, which rights may
include care and control of the child. A parent may be granted custody of a child whilst the
other parent may be granted its care and control. Parents may be granted joints custody, in
which case both parents have a say in the childs upbringing but one of them physically has
the child living with either one of them. When a parent has physical custody of a child, the
other parent will be granted the right to access.1

1 Mimi Kamariah Majid, Family Law in Malaysia, Malayan Law Journal Sdn Bhd,
Malaysia, 1999, p252.

After a breakdown of a marriage, a parent or any other relative of the child, any child welfare
association or any suitable person may apply for the custody of a child of the marriage. When
it comes to deciding the custody, the welfare of the child is given full consideration. So, the
court has to regard to the wishes of the childs parents and when the child is of an age to
express his or her opinion and that is taken into consideration. A child below the age of 7 is
believed will be in good hands if the mother gets the custody however the decision is in the
hands of courts since the facts and situations in every cases varies gradually. When there are
more than one child, the welfare of the children is taken into consideration individually not as
a whole.
The case of Wakeham v Wakeham2 can be referred. In this case the husband was
granted a divorce on the grounds of desertion by the wife and the English court had granted
custody of both the children to the husband. The wife applied to have the order varied. The
court varied the order and granted the custody of the children to the mother. The husband
appealed. In the Court of Appeal, LJ Denning stated that the usual order in cases similar to
this is that the father, the innocent party, will be given the custody of the child or children but
the care and control is left to the mother. His Lordship also quoted that the paramount
consideration for the court is the welfare of the child. But that is not the only consideration.
The fathers view is also entitled to consideration of the court and that is why the order for
custody should be given to him although for practical reasons, solely on practical reasons, the
mother may have the care and control.
Therefore, we could see that even though the welfare of the child is paramount
consideration that has to be looked into but there are also other factors that must be
considered. The court will decide on what is best for the children after taking into account all
the considerations.

2 [1954] 1 WLR 366