The Battle over Custody of a Child

The Battle over Custody of a Child

Child custody proceedings during an acrimonious divorce between parties are highly contentious in nature. Apart from divorce proceedings, there are also other applications that one may make in relation to child custody such as the applications under the Guardianship of Infants Act (Chapter 122). It is also worth noting that the law of custody applies equally to all persons in Singapore, regardless of religion.

Custody vs Care and Control

Many are confused over what the phrase “Custody, Care and Control” means and what each individual aspect of it means. This has lead to parents fighting over custody when in actuality what the parent is concerned about is the care and control of the Child and vice versa. Thus, there is a need to distinguish custody from care and control.

 

In this regard, “Care and Control” grants the parent the authority to make day-to-day decision for the child and is usually the parent whom the child lives.  “Custody” on the other hand grants the custodial parent long-term decision-making authority for the welfare of the child i.e education and healthcare related decisions.

 

At I.R.B Law LLP our team of experienced family law lawyers will be able to guide you through the process and assist in clarifying any confusions you might have regarding your matter.

Welfare of the child

The starting point in any custody, care and control proceedings is that the child’s welfare is the first and most important consideration. Parliament has provided for this in Section 3 of the Guardianship of Infants Act which is also supplemented by Section 125(2) of the Women’s Charter (Chapter 353).

 

The Courts have also held, in numerous cases, that the welfare of the child is the first and most important consideration. “Welfare” would be construed in the widest possible sense, and would involve “the general well-being of the child and all aspects of his upbringing, religious, moral as well as physical.

 

Thus the fundamental question that a Court asks itself when making a decision affecting a child is whether that decision will promote the welfare of the child. This concept of “welfare” is not a narrow one and has to be considered in the widest sense and is not to be only measured by money or physical comforts only.

 

The decision concerning the best interest and/or welfare of any particular child depends on the circumstances of each case and each child. However, this does not mean that the decision of the Judge is a subjective one. There are a number of relevant circumstances that have been taken into account when the Judge arrives at his/her decision. These include, amongst other things the following:

 

  1. Stability in the living arrangement;
  2. The need for both parents to have an involvement in the child’s life;
  3. Which parent shows greater concern for the child;
  4. The child’s wishes; and
  5. The desirability of keeping siblings together.

 

The degree to which any one factor or the other is to be given greater importance is not fixed but depends entirely on the facts of each case. It is also worth repeating that ultimately, there is only one fundamental and critical, legal principle upon which everything else depends on is that the welfare of the child is paramount and this principle ought to override any other consideration including that of the parents’ wishes. Essentially, the welfare of the child is the golden thread that runs through all matters relating to the battle over custody, care and control of the child.

Custody

The Courts generally grant 2 types of child custody orders, namely, sole custody and joint custody.

 

The Court of Appeal in CX v CY [2005] SGCA 37 (which is the leading case on child custody) has provided some guiding principles on how the Courts will decide on issues of child custody, be it sole, joint custody and in some situations, no custody orders. Similarly, these principles also apply to how care and control is decided.

 

Since the Court of Appeal decision in CX v CY, where joint custody was awarded to both parents, the Court have increasingly recognized and promoted joint parenting so that both parents could continue to have a direct involvement in a child’s life.

 

JOINT PARENTING

The Court went on to state that there is no doubt that the welfare of a child is best secured by letting the child enjoy the love, care and support of both parents. Further, a joint custody order encourages parent who does not reside with the child to continue to play a role in the child’s life. Essentially, parenthood is a lifelong responsibility and commitment, and does not end with the marriage or divorce. Joint custody orders also send a message to the parents that neither parent has a better right to the child, hence encouraging them to co-operate with each other.

 

While the Courts have increasingly granted orders for joint custody, there is this notion that there is a judicial preference for mothers to have custody of young children where all things are equal as held by the Courts prior to CX v CY. However, the Courts in CX v CY has gone on to clarify this position and has stated this is only helpful when deciding who should be granted care and control of the child (i.e day-to-day decisions and/or living arrangements) and should not be relevant to decisions involving custody.

 

Be that as it may, there are exceptional situations where sole custody may be granted such as where one parent has physically, sexually or emotionally abused the child, or where the relationship of the parties is such that co-operation was impossible even after the avenues of mediations and counseling has been explored and the lack of co-operation is harmful to the child.

 

At I.R.B Law LLP our team of experienced lawyers are able to advise and guide you through the process with an aim of resolving your matter expeditiously while keeping your costs low as we believe the access to justice should not be hindered by high legal fees and sudden bill shocks.

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