During divorce proceedings in Singapore, one of the many issues that the Court has to decide are those relating to the custody, care and control of the child. Custody is the power to make various significant decisions in the child’s life such as education, religion and emergency medical decisions. Care and control of the child determines which parent will make decisions regarding the child’s day-to-day matters.
The child will live with the parent who has care and control. It is not always that after the divorce, one parent is removed from the child’s life. The courts will in most cases try to maintain both parties’ involvement in the child’s life. The Courts will usually do this by granting the party which does not have care and control a degree of access, depending on the facts of each case. The overarching principle the Courts use to decide on issues of custody, care and control is that the welfare of the child is paramount.
Welfare of Child is Paramount
The overarching principle applied by the Courts in deciding on custody, care and control of the child is that the welfare of the child is of paramount consideration. This is a principle that applies under Civil law as well as Syariah law.
The parents’ wishes and desires are secondary, and the child’s best interest and well-being is the dominant consideration. This principle is elucidated clearly in section 3 of the Guardianship of Infants Act: “Where in any proceedings before any court the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income thereof is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration and save in so far as such welfare otherwise requires the father of an infant shall not be deemed to have any right superior to that of the mother in respect of such custody, administration or application nor shall the mother be deemed to have any claim superior to that of the father.”
This has also been recognized under Syariah law. In the case of Jasmin Ismali Frost @ Melor bt Ismail v Adam Alexander Frost @ Adam Frost (Appeal No. 45/2014), it was noted that “Islamic law requires that the parents must place the best interest of the child before their own”. This principle has shifted the Syariah Court’s consideration in various ways. For example, traditionally it is recognized that the right of custody of a child following divorce goes to the child’s mother, provided that she is a Muslim, of sound mind and trustworthy.
The mother is entitled to custody of her son until he reaches seven years of age and her daughter until she has attained puberty. This right to custody continues though she is divorced from the father unless she remarries in which case the custody belongs to the father. In incorporating the above principle, the Syariah Court’s take into account not just parent centric considerations but child centric considerations as well. This is illustrated in various child custody issues in relation to Muslim families, with examples from cases which the decisions of the Syariah Court are appealed in the MUIS Appeal Board.
Greater Consideration to the Welfare of the Child
Parents must provide the Syariah Court with all the relevant and material facts that would enable the Syariah Court to make a decision that is in the best interest of the child. It has been recognised by Syariah Court that generally, at a tender age of 2 years old, the child’s interest would be better served if that child stays with the mother. However, as the child grows up, the father has the obligation to nurture the child’s growth according to Islamic principles. The father may then be granted greater access time to the child.
Further, it is important for the father to have more contact with the child. It is not in the interest of the child to be constantly kept at a distance from the father. The father should, therefore, be able to forge a closer link and rapport with the child. Traditionally, adultery has been given significant consideration in deciding custody. The Syariah Court would give significant weight against the party committed adultery in considering care, custody and control. However, in Appeal Case No 28/2010, the MUIS Appeal Board awarded care and control of the children to the mother despite her having an affair.
It was held that the affair had no bearing on the wife’s suitability to be a good caregiver to the children. This underlines the shifting focus where the child’s welfare being of utmost importance. In some cases, the Courts would even override the child’s wishes if it finds that it has to decide otherwise in the welfare of the child. Once the child is about seven years of age, he or she can express his or her wishes as to which parent he or she prefers to live with.
In Appeal Case No 15/2010, the children had expressed their wishes to stay with their father. The Syariah Court initially granted care and control to their father. However, the MUIS Appeal Board reversed the decision and held that although the children would prefer the father’s laidback attitude towards their upbringing, it would not be in their best interest if there is an absence of structure to inculcate discipline. The wishes of the children are still an important consideration when deciding who would get care, custody and control. However, the ultimate determinant will still be the welfare of the children in the circumstances of the case.
Thus in conclusion, the paramount principle of the best interest of the child will play a determinative consideration in awarding custody, care and control even in cases in the Syariah Courts. In such a shifting legal landscape, it is important to get legal help which is cognizant of the nuances of each individual case.
How We Can Help
Filing for a divorce and divorce procedures in Singapore are delicate issues and may be too technical for you to fully understand alone. We understand that going through such an event in your life is difficult and emotional. Worry not, at I.R.B. Law; we have experienced divorce lawyers who are well versed in family law proceedings in Singapore.
We will be able to guide you through the process and explain to you each and every stage of your divorce or your separation. Do contact us to receive advice on how your divorce proceedings can be best handled so that you can focus on getting back up on your feet. Our first consultation is usually free as we wish to focus on you and not on your wallet. Do not hesitate to reach out to us at [email protected] or call us at 6589 8913 to schedule an appointment with one of our experienced lawyers today.