How to Vary a Child Custody Order in Singapore
Dealing with child custody and care and control matters is possibly one of the most contentious and acrimonious parts of divorce proceedings.
However, even after the court has granted custody and care and control orders (collectively known as “custody orders” in this article), there might be situations in which you feel that the court should vary the custody orders that it has granted to better protect the interests of the child.
This might happen, for example, where the other parent is no longer as interested in the welfare of the child, or where there is new evidence demonstrating that the parent is abusive toward the child that he or she has custody of.
This article therefore aims to inform divorced parents who feel the need to be more involved with their child and want to know how their child custody orders can be varied accordingly.
This article will cover:
What is the Difference Between a Child Custody and Care and Control Order?
You must first note the difference between issues pertaining to custody and those relating to care and control. 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 healthcare of the child.
On the other hand, care and control is given to only one parent, who will be involved in the child’s day-to-day matters. Such day-to-day matters will include taking care of the child’s daily needs, fetching him or her from schools, and providing a safe environment for the child to grow in. The other parent not given care and control will be granted access to the child for certain periods.
When Will the Court Vary Child Custody Orders?
Under section 128 of the Women’s Charter, the court may at any time vary or rescind any of child custody orders. However, before the court does so, it must be satisfied that at least one of the three conditions is met:
- Either the initial custody order was granted based on misrepresentations made by one party;
- The custody order was granted based on a mistaken set of facts that the divorced parties considered to be true at the time the initial order was made; or
- There was a material change in circumstances from the time the initial order was made.
1. Misrepresentation or mistake of fact
Courts will generally be willing to make a variation of the custody orders where the initial orders were based on some misrepresentation made by one party, or if the order was granted based on a mistaken set of facts.
For example, the court may vary a custody order where a spouse had given the impression to the court that he or she was going to quit her full-time job, but he or she actually does not. This is because the court may have made the initial order on the basis that the spouse would have more time and capacity to take care of the child if he or she was not working.
2. Material change of circumstances
The courts are known for taking a systematic and practical approach in deciding whether there has been a material change in circumstances. Whether there has been such material change will necessary depend from situation to situation, though there may be a certain set of non-exhaustive factors to determine when a change is said to be of a material nature:
- When a parent changes his or her job such that his or her financial capabilities to care for the child have been significantly affected as a result of the change;
- When a parent has been suffering from an illness that forces him or her to spend less time with the child;
- When a parent may be relocating to another country; and
- When a parent has been abusive toward his or her child during the time the child was living with the parent.
In considering whether there has been a material change of circumstances, the court is also aware of the fact that the relationship between a parent and a child can strengthen or diminish over a period of time. Thus, there need not be one particular identifiable event that signals there has indeed been such a change of circumstances.
It is possible that over a period of time, the circumstances between the child and parent may sufficiently change such that the child may want to spend a larger amount of time with the parent that he was not initially close to. This too would amount to a material change in circumstance.
Ultimately, in deciding whether to vary a custody order, the courts will have the welfare of the child as the main consideration. A child’s welfare will not be only measured by 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’ situation and the type of custody order suited for them. Thus, in situations where the variation of the custody, and care and control order is unlikely to assist the child to grow in a healthy and suitable environment, the courts will decline to make such an order.
How to Vary Custody Orders in Singapore
An application to vary child-related orders pertaining to matters of custody and care and control is to be made by way of summons filed in the suit in which the original order was made.
The summons needs to be accompanied by an affidavit that explains why it would be in the best interests and welfare of the child to vary the orders that were initially made.
The affidavit in support of the summons must include the following information:
- The names, current ages and dates of birth of each child that is subject to the custody order;
- The existing orders relating to custody, care and control and access;
- A table of past variations of custody, care and control and/or access (if any);
- The applicant’s proposed care plan for the child, including proposed shelter and education-related arrangements;
- If the applicant intends to move overseas with the child after the order is varied, to state the proposed care plan and the proposed access arrangements for the parent left behind;
- If the applicant is an undischarged bankrupt, an explanation how that party intends to financially provide for the child; and
- The applicant’s explanation as to why the proposed variation, instead of the status quo, would be in the best interests and welfare of the child.
Note that an affidavit will have to be filed even if the other party consents to the variation.
There is no limit to the number of times a custody or care and control order can be varied. However, do note that the courts will not take kindly to spurious applications being made to vary such orders when there is no proper basis for doing so.
In such situations, the courts may find that the party is trying to abuse the process of the courts in applying for such variation. They may even award costs penalties against the party making such an application.
The court’s decision on matters pertaining to variation of custody, and care and control orders are appealable, and can be appealed. Any appeals arising from the Family Justice Courts will rise to the General Division of the High Court, and any further appeal arising from the decision of the General Division of the High Court will rest with the Appellate Division of the High Court.
An appeal from the Appellate Division of the High Court to the Court of Appeal will be allowed only where the appeal will raise a point of law of public importance.
What to Do If an Ex-Spouse Does Not Comply with the Variation Order
Even if you have successfully obtained a court order to vary the custody arrangement, there might be instances in which your ex-spouse remains uncooperative to let you have custody, or care and control, of your child. In such scenarios, here are some options on how you may enforce such orders:
1. Try to work it out with your ex-spouse
Your ex-spouse may co-operate with you if you take the effort to reach out to them personally. It may also be advisable to bring in a neutral third-party, such as a family mediation centre or counsellor, to communicate with your ex-spouse effectively.
The session can be useful to explain to your ex-spouse the effect of the variation order and how they will not be removed from the lives of their children completely.
2. File for contempt of court
You can also opt to file for contempt of court proceedings against your ex-spouse if he or she refuses to comply with the variation order. However, note that it may take some time for you to successfully file and prosecute such an action. This is because it may take anytime from 6 weeks to 3 months for the court to decide on the merits of such an application.
Additionally, you may have to produce compelling evidence to show that your ex-spouse was intentionally disobeying the court order for custody, care and control matters.
The punishment for contempt of court is a fine up to $20,000 and/or jailed up to 12 months.
Filing for contempt of court proceedings in itself will not assist you in enforcing the child custody order. However, your ex-spouse may be less willing to disobey the order when they take into account the adverse consequences of not complying with such an order.
Do note that if you pursue this line of action, you are more likely to aggravate the relationship between you and your ex-spouse, and this may not be advisable in the long run.
Ultimately, you may want to consider approaching one of our divorce lawyers to decide whether it is best to seek a variation of a child custody or care and control order.
This is because you want to make sure that there is a sound basis for you making such a request so as to ensure that the court recognises that you are making a meritorious application. The divorce lawyer can also assist you in preparing for the application of the variation by preparing the relevant forms that you will have to file in court.
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