Child Custody vs. Care & Control
7.10.2022
Introduction
During a divorce, child custody is often the main issue of contention. The main statute governing child custody in Singapore is called The Guardianship of Infants Act, and it is supplemented by the Administration of Muslim Law Act, and the Women’s Charter. Under the Women’s Charter, a ‘child’ is defined as a child of a marriage who is currently under the age of 21 years old.
Custody vs Care and Control
Parents are given the authority to make important decisions for their child by way of child custody. These decisions could be, for example, around health conditions, matters of religion and education.
On the other hand, care and control is granted to just one parent, who will then take care of all matters of daily life for the child. In some cases, a court may grant access to the child to another parent, for a limited period.
The Different Types of Custody
There are four different types of custody of a child:
(1) Sole Custody Order
This is an order granted to one parent only. That parent is then authorised to make all important decisions for their child. The reasons the court will grant this decision are as follows:
- Harmonious communication between the couple is not possible;
- Child custody has been renounced by one parent to another because of other ancillary matters;
- A parent has abused the child in the past.
(2) Joint Custody Order
Authority is granted to both parents to make decisions for the child. They must both discuss the decisions and agree upon them. Thus, this order encourages the cooperation of the parents and so both of them have an equal right to decisions concerning the child.
It is more common for the Singapore courts to grant joint custody orders than it is for them to make sole custody orders. This demonstrates that the courts place great importance on the presence of both parents in a child’s life, and see this as essential for the child’s growth. Parenting does not end like a marriage can – rather, it is a lifelong obligation.
(3) Hybrid Order
One parent is granted custody of the child; they will then discuss with the non-custodial parent any matters concerning the welfare of the child.
(4) Split Custody Order
One parent is granted custody of one or more siblings, whilst custody of the other sibling(s) is given to the other parent. The courts rarely grant this sort of order, as they normally prefer the siblings to live together, in order to provide emotional support to each other.
If this order is granted, only the custodial parent may take the child overseas, unless the non-custodial parent gets permission from the custodial parent to take them abroad, or they obtain the permission of the court. They are not allowed to take the child overseas for more than one month.
How will the courts determine the type of custody to award?
A standard called the ‘welfare principle’ will be applied by the courts in Singapore. This means it depends on the child’s best interests. This principle considers not only the financial and physical comfort of the child, but also their religious, moral and physical welfare, and the child’s affection to the parent.
In some cases, social services may be asked by the courts to assess the child and the parent, and make suggestions as to the most suitable type of custody order. Usually, the courts will request a Social Welfare Report which is prepared by officers from the Ministry of Culture, Community and Youth. In preparing the report, the officer will observe the interactions between parent and child. The report will be confidential, for the judge’s perusal only, and it will not be revealed to the parents or the child.
The factors that the courts may take into account in deciding the type of custody order are outlined in the following non-exhaustive list:
- Who the main caregiver of the child was, during his or her early years
- The current living arrangements
- The wishes of the child
- The wishes of the parents
- The age of the child
- The financial capability of the parents
- The presence of family support
Note that a parent who has a better financial status does not necessarily have an advantage over the other parent. Furthermore, the court will not prioritise the parents’ preferences and wishes above the welfare of the child.
How will a court usually determine care and control?
Care and control orders decide which parent a child should live with. The parent who has been granted this order will be the main caregiver, handling all daily matters for the child, such as providing meals, transport, etc.
A reasonable access order will be granted to the parent who was not given the care and control order. The court will need valid and convincing evidence if they are to refuse to grant a reasonable access order.
A ‘penal notice’ may be attached to the care and control order in some cases. This provides specific responsibilities and terms which must be complied with by the parent. For example, this might include allowing another parent to have access to the child, for a specific period and in a particular manner. A parent who does not comply with the penal notice without reasonable justification will be penalised by the courts.
Can a father get custody of his child?
Care and control orders are normally given to the mother, in Singapore. Rarely does the court grant a full care and control order to the father, unless:
- The mother gives her consent; or
- The child is of a suitable age to give their express wish to live with the father; or
- The mother has been abusive or neglectful of her child.
Otherwise, a father can request a shared care and control order. Under such an order, both parents receive an equal amount of time with the child. The father should prove that he is the child’s main caregiver prior to the divorce. If it best serves the child’s welfare, then a shared care and control order will be granted by the court.
It’s unlikely that the court will grant a shared care and control order if it involves a child who goes to school, because of the inconvenience caused by travelling regularly between two homes. In addition, the courts will not grant this order if the relationship between the parents is acrimonious or if they have very different parenting styles.
Types of Access
Normally, access orders are not monitored. A parent will spend time with their child without supervision.
Supervised orders
There are several reasons why supervised orders are granted; often, it is to protect the child from potential physical or emotional abuse, or in order to assess the relationship between the child and the parent who was not granted custody.
Deciding on the type of access
Access Evaluation Reports
In order to decide on the type of access order to award, a court may request an Access Evaluation report, particularly where both parents disagree over the access times.
An Access Evaluation Report will assist the court in settling disagreements over child access – for example, how long the access should last and whether a supervised order may be needed, and so forth. These reports are also for the judge’s eyes only.
Quantum of access
Parents will be encouraged to reach agreement about the day, place and time of the access. This will quicken the divorce proceedings, and minimise the emotional damage to both the parents and child.
In deciding the quantum of access, the court will consider the following non-exhaustive factors:
- The needs of the child
- The wishes of the child
- The previous interactions of the non-custodial parent and the child
- The relationship history between the non-custodial parent and the child
Ultimately, in deciding the quantum of access to award, the court will consider the best interests and welfare of the child. The types of access periods are weekday access, weekend access, and access during school holidays or public holidays.
Following the award of the access order, some parents then have the problem of being denied access to their child. Unfortunately, this problem is not sufficiently addressed by the present Singapore law. Someone encountering this problem should seek professional help from a lawyer.
