Child Custody, Care and Control and Access

The fundamental question that a court asks itself when making a decision affecting a child is whether that decision will promote the child’s welfare. The concept of ‘welfare’ is not narrow: it has to be considered in the widest sense and is not to be measured by money or physical comfort only. The child’s moral and religious well-being must be considered and his relationships with his siblings and other relatives. In addition, it is important to maintain the ties of affection the child enjoys: see ABW v ABV [2014] SGHC 29.

The decision as to what is in the best interests of any particular child depends on the circumstances of the individual case and the individual child. However, this does not mean that that decision is subjective for the judge hearing the case. Rather, several relevant circumstances should be taken into account when arriving at a decision. The stability factor is but one such circumstance. Others include:

  • The need for both parents to have an involvement in the child’s life;
  • Which parent shows the greater concern for the child;
  • The maternal bond;
  • The child’s wishes; and
  • The desirability of keeping siblings together.

The degree to which anyone factor or the other is to be given pre-eminence is not fixed but depends entirely on the facts of each case.

What is Custody?

The term “custody” means the right to make major decisions on the welfare and upbringing of the children in the following areas:

  • Medical issues like whether the child is to be hospitalized ;
  • Educational issues like the choice of school, choice of enrichment classes, choice of course in school, choice of subjects, whether the child is to attend a particular school trip or outing, or tuition;
  • Religious issues like what religion the child should follow.

A parent with custody of a child has the legal authority to make decisions in “major” areas of the child’s life, namely religion, education and medical issues.

Broadly speaking, there are 4 types of custody orders:

  1. Sole custody: only one parent has the decision-making power to the exclusion of the other parent. This is rarely ordered as this may cause an imbalance in the child’s relationships with each parent.
  2. Joint custody: both parents have custody over the child, which means that the parents make decisions together.
  3. Hybrid custody: one parent has custody over the child but has to discuss with and/or get consent from the other parent on all or some major decisions.
  4. Split custody: in the case of more than 1 child, the children could be split up amongst the parents. For example, Parent A could have custody over Child 1 and Child 2, while Parent B has custody over Child 3. This type of order is rarely made as the courts usually see siblings as an important source of support for each other.

The current starting point is joint custody as the courts wish to encourage a productive co-parenting relationship between the parents. Joint custody is also important in sending a message to the child that both parents are still present in their lives and working together to bring up the child despite the breakdown of the marriage.

What is Care and Control?

Care and control is the right to have the children live with you and to make everyday decisions about them.

For practical reasons, care and control normally lie with one parent. This means the child will live with that parent.

The non-custodial parent who does not have care and control of the child will have access to the child. Access can be reasonable, liberal or supervised. It is common for access to be “reasonable.”

It is a parent’s duty to maintain the child until the child reaches adulthood, whether or not he has custody. Similarly, a parent’s right to have access to his child is sacrosanct and will be jealously guarded by the Court. Only in very extreme circumstances will access be taken away from a parent, e.g. where there is violence. In the case of alleged violence, the Court may still give supervised access.

Access

For the non-custodial parent, there is a lot at stake on the issue of access. The main contentions arising out of the issue of access are the frequency of access and length of access.

In addition to deciding access on weekdays and weekends, access arrangements should also include special occasions such as public holidays, school holidays and Chinese New Year. Access arrangements may be precise in acrimonious cases or use generic terms like “reasonable access” or “liberal access” to allow for greater flexibility. The degree of specificity depends on whether the parents have a communicative relationship. As a starting point, the courts are likely to order “reasonable access” for the non-custodial parent to facilitate their parent-child relationship. The definition of “reasonable access” depends on many factors relating to the child, such as the child’s age, level of education, and current relationship with the non-custodial parent. “Liberal access” means that access arrangements are not fixed, and the non-custodial parent spends time with the child on a flexible basis. This may be ordered where the parents have an amicable relationship and are both open-minded about the issue of access.

Most access orders provide unsupervised access where the non-custodial parent is free to spend time with the child without third-party supervision. However, there are some instances where the courts may order supervised access, such as when the courts identify that there is a risk of abuse against the child and there is a need to protect against that risk.

At PKWA Law, our team of child custody lawyers strongly believe that parents should co-operate with each other when it comes to parenting the child. A child needs both parents’ love, and attention and parents should take care to ensure that their divorce does not affect the child adversely.

Author

Low Jin Liang

Deputy Co-Head, Family & Divorce Practice Group

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