The overriding priority when deciding on the custody, care and control of children, is the welfare of the child. This is reflected in section 125(2) of the Women’s Charter. It is common for issues around custody and care of children to be contentious issues in divorce cases.
Divorces are often sensitive matters, so the Singapore Family Justice Court will rule on these cases based on what outcome is best for the child; they will consider many factors. The child’s interests are always more important than the wishes of the parents.
Anyone getting divorced should learn their rights as a parent and what factors the court will look at when granting custody, care and control orders in Singapore.
The court will rule on three main areas of rights and responsibilities:
- Child custody
- Care and control of the children
- Access to the children.
Child welfare orders and the law
Child custody is governed by three statues in Singapore, and the law applies to everyone in the country, regardless of religious belief:
- The Guardianship of Infants Act
- The Women’s Charter (which gives the definition of a ‘child’ of a marriage as a person under the age of 21 years old)
- The Administration of Muslim Law Act
Custody vs care and control – what’s the difference?
Custody of a child means the right to make significant decisions which affect the child’s welfare. These might include issues around education, healthcare or religion. One parent may be given custody, or it may be given jointly to both parents.
Care and control, on the other hand, means making decisions relating to the child’s day-to-day life and activities. Usually only one parent is given care and control. The parent who has care and control of the child is the parent the child will live with; the other parent is granted access instead.
There are 4 main types to be aware of:
This is the most common order in Singapore, and is where both parents are granted custody, so they both get to make major decisions on the child’s behalf. Courts in Singapore encourage co-parenting like this, and recognise the benefits to the child where both parents manage their upbringing, in terms of the child’s character and development.
Where parents are able to agree on decisions between themselves, courts will grant joint custody. It allows both parents an equal say in their child’s upbringing, even where only one of them has care and control of the child.
Custody orders are designed to encourage both parents to take responsibility for bringing up their child, as well as ruling on which parent has the right to make decisions. Marriages may end, but the responsibilities of parenthood do not end.
A parent who is granted sole custody makes all major decisions about the child’s life. It is often used in acrimonious divorces where communication is difficult and where the lack of co-operation has a harmful effect on the child in joint custody situations. Poor co-operation may risk major events in the child being disrupted or delayed.
Sole custody is often used where other resolution avenues have been exhausted (like counselling or mediation).
The parent given sole custody therefore has the exclusive right to make decisions on behalf of the child regarding their welfare and upbringing.
Other scenarios where sole custody is given include when one parent is abusive, or it is agreed with the other parent. However, sole custody orders are not common.
These orders are for cases involving siblings. Under split custody arrangements, one parent gets custody of child A, and the other gets custody of child B. However, these orders are unusual since the courts try to avoid separating siblings. They will only do it if it is truly in the best interests of the child.
Under a hybrid order, one parent gets custody of the child, but on the condition that they include the other parent in certain decisions, for example where they go to school, relocation issues, or their religious upbringing.
If I don’t have custody, can I still take my child abroad?
Yes, but you either need the consent of the other parent, or of the court, to do so, and the trip may not last for more than a month.
How the court decides who gets custody
The court takes into account what it thinks is in the best interests of the child. It uses so-called ‘welfare principles’ to do this, which help them decide who gets custody and what sort of order they will be granted.
The court takes into many things, not just financial considerations or physical factors:
- The relationship the child has with each parent
- The child’s current living arrangements
- The moral, physical and religious welfare of the child
- The child’s main caregiver during their early years
- The wishes of the child (if they are old enough)
- The parent’s wishes
- The financial stability of the parents
- Any additional family support that may be present.
Sometimes, to help them make a decision, the court will request a Custody Evaluation Report, from counsellors and social services. This is an assessment of the child’s circumstances and those of the parents. It may also look at how the child interacts with its parents. It’s a confidential report, and is only for the purposes of helping the judge make their ruling.
Section 130 of the Women’s Charter gives the court power to use these reports in making their decision, but does not bind the court to taking the advice into consideration.
The desires of the parents are not the main concern of the court. Neither will it matter if one parent has better education or more wealth than the other, nor is Singapore citizenship a guarantee of custody for one parent or the other. Rather, the child’s best interests are the court’s paramount concern when making custody orders.
Care and control orders
The parent who is given care and control and with whom the child will live is granted this through a care and control order. The parent given the order becomes the primary caregiver and takes charge of the everyday activity of the child, such as transport to school, extra-curricular activities, meals, playdates, bedtime, and so on.
Sometimes the court includes a ‘penal notice’ in the order, so that if specific terms or duties are not followed by the parent, they are penalised (unless they have reasonable justification for not complying). If the parent who has not been granted care and control has concerns about not getting access to their child, they can ask the court to attach a penal notice to the order.
Who will get care and control of the child?
Most often, the mother will be given care and control of the child, as they are usually the primary caregivers. It can be hard for fathers to change this, however in some cases the Family Justice Court will give it to the father, if:
- The child is old enough to say that they want to live with the father
- The mother agrees to give care and control to the father
- A court-appointed counsellor gives a recommendation to that effect
- There is a history of neglect or abuse by the mother.
Shared control is sometimes requested by the parents, so that they share equally the amount of time they have with the child. A court will only grant such an order if they think it would be in the best interests of the child and that the arrangements would be practicable. The father would also have to prove he was the primary caregiver prior to the divorce.
Shared care and control orders won’t usually be given if the child is still in school, or there was an acrimonious divorce, or the parents have sharply contrasting parenting styles.
Despite all this, it is possible for a father to be given care and control of their child(ren).
The court acknowledges that spending time with both parents is in the best interests of the child and their welfare. Therefore the court will usually grant an access order to the parent who is not given care and control.
However, the law doesn’t go as far as to dictate the amount of time the child must spend with the non-custodial parent. The amount of access time is simply described as ‘fair and reasonable’ by the Women’s Charter. The court will decide what this definition means in practice, according to the circumstances of each case.
Factors the court considers in deciding type and quantum of access
All relevant information is taken into account by the court, such as:
- The preference of the child
- The welfare and wellbeing of the child
- The child’s needs
- The amount of time the child previously spent with the non-custodial parent
- The relationship that the child had with the non-custodial parent
- Practical arrangements.
The court will always aim to establish mutually agreeable arrangements that serve the best interests of the children.
Specific orders for certain days or times may be given, for example at Christmas, on birthdays, for overseas holidays or school and public holidays.
Unless there are good reasons, access is normally unsupervised. If the court thinks the child is at risk from emotional or physical harm, they will order supervised access.
If there are disagreements between parents as to access, the court may ask for an Access Evaluation Report to be done. It may consider questions such as how long access should be for, and whether it should be supervised. But ultimately, the access order will be based on the best interests of the child and their welfare.
Conditions on child welfare order
The court may include conditions when they make a custody or care and control order, under section 126 of the Women’s Charter.
The conditions might be about:
- Where the child lives
- Any visits the child makes to the other parent, or family of a deceased parent
- Whether the child can be taken abroad
- The religion they are brought up in.
You should consult a divorce lawyer as soon as possible if you are divorcing and are concerned about your child’s welfare. They will help you understand both your rights and your responsibilities when it comes to your child.