Custody and care of children are often sensitive and contentious issues in divorce. When the Singapore Family Justice Court makes decisions around these issues, it will always consider the children’s best interest. Section 125(2) of the Women’s Charter makes it clear that the paramount consideration when deciding on custody, care and control orders must be the welfare of the child.
The parents’ wishes are not more important than the children’s welfare. The court will take many factors into account before granting the orders.
If you are going through a divorce, you should understand your rights as a parent and the factors that the court will consider when granting custody, care and control orders in Singapore.
There are three main areas of rights and responsibilities where the court will make orders.
- Custody of the children.
- Care and Control of the children.
- Access to the children.
The law relating to child welfare orders
In Singapore, three statutes govern child custody. The primary statute is The Guardianship of Infants Act, supplemented by the Women’s Charter and the Administration of Muslim Law Act.
The Women’s Charter defines a “child” of a marriage as a child under the age of 21 years old.
The law applies to everyone in Singapore, regardless of faith or religion.
What is the difference between custody and care and control?
Child custody refers to the right to make major decisions relating to the child’s upbringing and welfare. It will include decisions regarding education, religion, and healthcare. Custody may be given to one parent or jointly to both parents.
Care and control refers to making decisions about the child’s day-to-day matters and activities. The child will live with the parent who has care and control over the child. Care and control are given to one parent. The other parent will usually be granted access to the child.
Types of custody orders
There are four types of custody orders.
Under a sole custody order, the parent who is granted sole custody makes all the significant decisions in the child’s life. Sole custody is often granted where the relationship between the parents is acrimonious, and they don’t communicate with each other. In such cases, their lack of communication and co-operation may have a detrimental effect on the child if they have joint custody. Decisions about major events in the child’s life may be delayed or complicated if the parents cannot co-operate.
The court may also grant sole custody where other alternative resolution options (such as mediation or counselling) have been unsuccessful.
The parent with sole custody will then be the sole decision-maker regarding the child’s upbringing and welfare. That parent has the exclusive discretion to make major decisions in the child’s life.
The court will also consider sole custody if there is a history of abuse or one parent agrees to give the other parent sole custody.
Generally, sole custody orders are not granted often.
Joint custody is the most common custody order in Singapore. When the court grants joint custody, both parents will make major decisions on behalf of the child. The Singapore court encourages co-parenting. It recognises the benefits to the child if both parents are involved in the child’s upbringing and significant decisions that will contribute to the child’s development and character.
If the parents can discuss and agree on decisions, the court is likely to grant joint custody. Joint custody gives both parents an equal say in their child’s upbringing, even though one parent might have care and control over the child.
Custody orders are not just about which parent has the right to make major decisions. The court also wants both parents to accept and execute their responsibilities for the upbringing of their child. Parenting does not end when the marriage ends.
A hybrid order gives one parent custody of the child. However, that parent must discuss certain decisions about the child’s welfare with the other parent. It could include decisions about which school the child will attend, their religious upbringing, or relocating with the child.
A split custody order splits the custody of siblings between the parents. One parent will get custody of child A, whilst the other parent will get custody of child B.
Split custody is highly unusual since the court is reluctant to split up siblings. The court will only grant a split custody order if it is in the best interests of the children.
Can I take my child overseas if I don’t have custody of my child?
Yes, but you need the consent of the parent who has custody or the court’s permission before you can take the child out of Singapore. You may not take the child out of the country for more than a month.
How does the court decide who gets custody?
The court considers the “welfare principles” when deciding who gets custody or what type of order to grant. This means the court considers the best interest of the child.
Best interest does not only refer to financial or physical factors. The court will take many factors into account, including:
- the child’s moral, religious and physical welfare;
- the child’s relationship with each parent;
- current living arrangements;
- the child’s primary caregiver during the formative years;
- the child’s wishes, if the child is old enough;
- the parents’ wishes;
- the age of the child;
- the parents’ financial ability; and
- the presence of additional family support.
The court may request a Custody Evaluation Report from social services and counsellors. The counsellor will assess the circumstances, the child and both parents before suggesting a type of order. The counsellor may also observe the interaction between the child and the parents. The report is confidential and only for the judge to help make a decision.
Section 130 of the Women’s Charter allows the court to have regard to advice given in such reports, but the court is not bound to follow the advice.
What the parents want or like, will not necessarily be the determining factor for the court. Neither will the fact that one parent is better off financially or better educated than the other. Singapore citizenship is also not a guarantee to get custody if the other parent is not a citizen. The court will always look at what arrangement is in the child’s best interest before making a custody order.
Care and control orders
The care and control order determines with which parent the child lives. That parent is the primary caregiver and in charge of the child’s day-to-day life. That parent is also responsible for the child’s daily care and necessities – getting the child to and from school, extra-mural activities, meals, bedtime, playdates, etc.
The court may attach a “penal notice” to the order specifying specific terms and responsibilities that the care and control parent must comply with. Failure to abide by these terms without reasonable justification will be penalised. If you are worried that the parent with care and control will deny you access to your child, you can ask the court to attach a penal notice to the care and control order.
Who gets care and control of the children?
Many people feel that it is difficult for a father to get care and control of children because the perception is that mothers are typically the primary caregivers.
In most cases, the Family Justice Court gives care and control to the mother, unless:
- there is a history of abuse or neglect by the mother;
- or a court-appointed counsellor recommends otherwise;
- the mother agrees to give the father care and control; or
- the child is of the age where they can express their wishes clearly and states their wish to live with the father.
Parents can also ask for a shared care and control order where both parents get an equal amount of time that the child stays with them. The court will only grant a shared care and control order if it is in the child’s best interest and the arrangements are practicable. The father must also show that he was the primary caregiver before the divorce.
The court will be reluctant to order shared care and control where children are still in school, the parent’s relationship is acrimonious, or they have different parenting styles.
Nonetheless, it is not impossible for a father to obtain care and control.
The parent without care and control will usually be granted an access order to have reasonable access to the child. It is commonly accepted that spending time with both parents is in the child’s best interest and important to their welfare.
The law, however, does not specify the type of access or the amount of time the child must spend with the non-custodial parent. The Women’s Charter merely says the non-custodial parent should be granted “fair and reasonable” access. It is for the court to decide what is fair and reasonable in the circumstance of your case.
What factors will the court consider when deciding on the types and quantum of access?
The court will consider all relevant information, including:
- The needs of the child.
- The child’s preferences.
- The amount of time the parent without care and control previously spent with the child.
- The relationship between the child and the parent without care and control.
- The child’s welfare and wellbeing.
- Practical arrangements.
The court will always encourage parents to discuss the issues and agree on mutually acceptable arrangements that serve the children’s welfare.
Parents may agree on or request specific orders to cover access during specific days or times such as school and public holidays, Christmas, birthdays, overseas holidays, etc.
Typically, access will be unsupervised unless there are reasons to protect the child from potential physical or emotional harm. In that case the court will order supervised access.
The court may request an Access Evaluation Report to assist the court to resolve disagreements between the parents regarding access. It can also help the court in deciding what is best for the child’s wellbeing. How long should access be? Should it be supervised?
Ultimately, the court will make an access order that will serve the welfare of the child best.
Can the court include conditions when making child welfare orders?
Yes, section 126 of the Women’s Charter grants the court the power to include any conditions the court may think fit to impose when making custody or care and control orders.
It could include conditions relating to:
- where the child resides;
- the religion they are brought up in;
- visitation to the other parent or family of a deceased parent; or
- whether the child may be taken out of Singapore.
If you are going through a divorce and are worried about your child’s welfare or your rights to have access to your child, you should speak with a divorce lawyer as soon as possible. It is essential to understand your rights and responsibilities to serve your child’s best interests.