The Guide to Child Custody, Care and Control, and Access in Singapore
- Child Custody
- Differences between child custody and care and control
- Types of child custody orders
- How the type of child custody order is determined
- Care and Control
- Who is given care and control?
- Types of access orders
- How does the Court decide the type of access order to grant?
- Quantum of access
Child custody is sometimes one of the most contentious issues in a divorce. A “child” is defined in the Women’s Charter as a child of a marriage who is presently under 21 years of age. The main statute governing child custody in Singapore is the Guardianship of Infants Act, which is supplemented by the Women’s Charter along with the Administration of Muslim Law Act. The law of custody applies to every person in Singapore, regardless of whether one is Muslim or non-Muslim.
Differences between child custody and care and control
Child custody should be distinguished from care and control of the child. Child custody grants the custodial parent(s) authority in making major decisions regarding their child. Some of these decisions include matters concerning education, religion and health conditions of the child.
On the other hand, care and control is only given to one parent, who will be involved in the child’s day-to-day matters. The other parent not given care and control will be granted access to the child for certain periods.
Types of child custody orders
There are generally 4 types of child custody orders given in Singapore Courts.
1. Sole custody order
Under this order, the parent granted custody of the child will be the sole decision-maker for major decisions concerning the child.
This order is usually given where the couple’s relationship has deteriorated to such an extent that they are acutely acrimonious towards each other, and communication has broken down irretrievably. Avenues for reconciliation, such as counselling and mediation, have been exhausted and unsuccessful.
In such cases, it is clear that the lack of co-operation amongst the parents would have a detrimental effect on the child.
Another possible reason why this order is given is that some parents would “give up” custody of the child to the other parent, in order to gain a better deal for other ancillary matters.
In some exceptional cases, sole custody orders are given where one parent was found to have abused the child previously.
2. Joint custody order
Under this order, both parents are the decision makers for major decisions concerning the child. Hence both parents should communicate with one another and reach a consensus when making key decisions. This gives them an equal say in the upbringing of the child.
Increasingly, the Singapore courts are giving more joint custody orders than sole custody ones. This is because the Courts recognise that the presence of both parents in the life of their child is pivotal to his/her development. Parenthood is a lifelong responsibility and commitment, and does not end with the marriage.
Joint custody orders also send a message to the parents that neither parent has a better right to the child, hence encouraging them to co-operate with each other.
3. Hybrid order
Under this order, one parent will be granted custody over the child. However, the custodial parent must consult the non-custodial parent on matters pertaining to the welfare of the child.
4. Split custody order
Under this order, custody of one or more siblings is granted to one parent, while custody of the other siblings is granted to the other parent. This type of order is uncommon as the Court would usually allow siblings to stay together to provide emotional support for each other.
When a custody or care and control order is in force, no person, except the parent with custody/care and control, can take the child who is the subject of the order out of the country. The exceptions to this are when the non-custodial parent has the consent of the custodial parent or the leave of the Court to do so. This is set out in section 126(3) of the Women’s Charter. In any case, the child cannot be taken out of the country for more than one month.
How the type of child custody order is determined
In deciding the type of custody order, Judges in Singapore will apply a standard known as the “welfare principle”, where the Court will look at the best interests of the child to determine the optimal arrangement.
The child’s welfare should be understood broadly – it is not only measured in terms of money or physical comfort, but also in terms of the child’s moral, religious and physical well-being along with his/her ties of affection to the parent. Where necessary, the Judge may ask for social service reports or counselling sessions to assess the child’s and parents’ state and the type of custody order suited for them.
Commonly used reports include the Social Welfare Report. Social Welfare Reports are usually ordered by the court for disputes over which parent should have custody of the child, and are prepared by officers from the Ministry of Community Development and Sports. These officers will speak the child and observe the child’s interactions with his/her parents. The report will not be shown to the parties involved – it will only be used by the judge.
There are several non-exhaustive factors that a Judge may take into consideration in determining the type of custody order:
- The primary caregiver of the child during his/her formative years
- The current living arrangements
- The child’s wishes
- The parent’s wishes
- The age of the child
- The parents’ financial ability
- Presence of family support
However, it should be noted that the Court would not prioritise the parents’ wishes and likings above the welfare of the child. Also, the parent with a higher financial ability does not necessarily give him/her an edge in custodial arrangements.
If you are concerned about how child custody will be decided in your divorce, you may want to approach one of our experienced divorce lawyers for advice. This is especially if your divorce is a contested one, and you know that your spouse will be fighting over custody of your child.
Care and Control
An order of care and control determines which parent the child should live with. The parent given care and control of the child will be in charge of handling the child’s daily necessities, such as the child’s meals, bedtimes and transport arrangements. Such an order is nearly always necessary when parents separate.
The other parent (who will not have the child living with him/her) will be granted an order to have reasonable access to the child (see below). Convincing evidence is required for a court to deny a parent of reasonable access to the child.
It is possible to attach a “penal notice” to an order of care and control. A penal notice attached to an order of care and control can list out specific terms and responsibilities which the parent living with the child has to abide by, such as allowing the other parent access to the child at a specific time and manner. Unreasonably failing to comply with these terms will immediately allow the parent who has breached the term to be committed where the court finds it appropriate.
Who is given care and control?
In Singapore, care and control is awarded to mothers in most cases. It is often an uphill task for fathers to fight for full care and control of the child.
Unless the mother agrees to the father’s request, or the child is at an age where he/she is able to express clearly to the Court his/her desire to stay with the father, it is highly unlikely that the Court will award care and control to the father.
In exceptional cases where the mother is found to be abusive, or neglectful of her children, the Court may order an evaluation report by the Family Court counsellor before coming to a decision.
Alternatively, fathers who desire for care and control of the child may consider pursuing an order for shared care and control. Under shared care and control, the time spent with the children will be split amongst both parents equally. Nonetheless, to succeed in obtaining care and control, the father must have been the primary caregiver of the child prior to the divorce.
Shared care and control is also unlikely to be granted where school going children are involved, given the inconveniences of travelling between 2 homes frequently.
Hence it can be seen that it is an extremely onerous task for fathers to fight for and obtain care and control. Nonetheless, it is not entirely impossible as there have been cases where care and control was given to the father.
Access is granted to the parent who is not given care and control of the child, typically the fathers. The starting point of access orders is the presumption that the child should have access to the non-custodial parent as such access is beneficial for the child.
Hence the contention often lies in the quantum of access to be given. This is especially since the Women’s Charter does not stipulate the amount of access time a parent should be given with his/her child. Instead, it merely states that the parent without care and control of the child should be granted access times that would be considered fair and reasonable. Hence it is left to the Court’s discretion to decide what is “fair” and “reasonable”.
Types of access orders
Access orders are typically unsupervised, which allows the parent to spend time with the child without a third party present supervising the session.
Supervised orders are usually given for reasons such as to protect the child from potential physical or emotional abuse, or to assess the relationship between the child and the non-custodial parent.
How does the Court decide the type of access order to grant?
In determining the type of access orders to be given, the Court may order for Access Evaluation Reports where necessary, especially when both parents are disputing the access times.
Access Evaluation Reports are prepared by the Family and Juvenile Justice Centre’s counsellors, and they will help the Court resolve disputes over access to the child (such as how long should access be, and whether it should be supervised, etc.). These reports are also confidential and will only be for the Judge’s use.
Quantum of access
Parents are encouraged to try and work out amongst themselves the days, time and place of such visitation times. If a mutually agreeable arrangement is reached, this would expedite divorce proceedings and minimise the emotional damage to the parents and their children.
A non-exhaustive list of factors that the Court will take into consideration when determining the quantum of access are:
- The child’s needs
- The child’s wishes
- The non-custodial parent’s previous contact with the child
- The history of the relationship between the non-custodial parent and the child
Ultimately, the Court will look to the welfare and best interests of the child in determining the amount of access time to be given. Examples of access periods include weekday access, weekend access, school holiday access and public holiday access.
After access orders are handed down, some parents face the issue of being denied access to the child. However, the current state of the law in Singapore does not adequately address such an issue. If you face this difficulty, you may want to approach one of our divorce lawyers for help.
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