Child custody is often the main issue for contention during a divorce. The Guardianship of Infants Act is the main statute governing child custody in Singapore and it is supplemented by the Women’s Charter and the Administration of Muslim Law Act. According to the Women’s Charter, the definition of a “child” is a child of a marriage who is presently below 21 years old.
Differences between Custody vs. Care and Control
Child custody gives parent(s) authority to make important decisions for his/her child. The important decisions are, for instance, health conditions, education and matters of religion.
Care and control, on the other hand, is granted to only one parent and this parent shall take care of all the daily matters of the child. The court may grant another parent access to the child for a specific period.
What Are The Different Types Of Custody?
There are four types of child custody:
(1) Sole Custody Order
A parent granted with a sole custody order is authorised to make all important decisions for the child. This order is granted to only one parent. The court grants this order due to the reasons as follows:
- The couple is unable to communicate with each other in a harmonious manner.
- A parent renounces the child custody to another parent for the sake of the other ancillary matters.
- A parent had abused the child before.
(2) Joint custody order
Both parents are granted with authority to make major decisions for the child. Both parents must discuss and agree upon the same decision. This order encourages the cooperation of both parents and thus, both parents have an equal right to decisions regarding the child.
The Singapore courts have granted more joint custody orders than the sole custody orders. It shows that the Singapore courts regard the presence of both parents in the child’s life as essential to the child’s growth. Parenting is a lifetime obligation and it does not end with the marriage.
(3) Hybrid order
One parent is granted with custody he/she shall discuss with the non-custodial parent any matters regarding the child’s welfare.
(4) Split custody order
The courts grant the custody of one or more siblings to one parent, whereas custody of the other sibling(s) is granted to another parent. This order is rarely granted by the courts as the courts would normally let the siblings live together so that they can provide emotional support for each other.
Under this order, only the custodial parent can take the child overseas unless the custodial parent gives permission to the non-custodial parent or the non-custodial parent obtained a leave of the court, to take the child overseas. The child shall not be taken overseas for more than a month.
How do the courts determine the type of custody to award?
The Singapore courts apply a standard called the “welfare principle”. It depends on the best interests of the child. This standard is not only about financial or physical comfort, but the courts will also look into the child’s moral, religious and physical welfare as well as the child’s affection to the parent.
The courts may ask the social services or counselor to assess the child and parent and suggest a type of custody order which is suitable to them. The courts usually ask for a Social Welfare Report prepared by officers from the Ministry of Culture, Community and Youth. The officers, in preparing the report, would observe the parents’ interaction with the child. This report is confidential, it is for the judges perusal only and it shall not be revealed to the parents and/or child.
The list below shows the non-exhaustive factors that the courts may consider in deciding the type of custody order:
- The main caregiver of the child during his/her formative years
- The present living arrangements
- The child’s wishes
- The parent’s wishes
- The child’s age
- The parents’ financial capability
- Presence of family support
It is important to note that the parent who has a better financial capability does not mean that he/she has a better advantage over another parent. Also, the court would not prioritize the parents’ wishes and preferences above the child’s welfare.
How do the courts usually determine care and control?
The care and control order decides which parent should live with the child. The parent granted with this order shall be the main caretaker who handles all daily matters of the child, for instance, meals, transport etc.
The parent not granted with care and control order shall be granted with a reasonable access order. Valid and convincing evidence is necessary for the courts to refuse in granting a parent a reasonable access order.
A “penal notice” can be attached to the care and control order. A penal notice provides specific terms and responsibilities which the parent has to comply with, for instance, permitting another parent to have access to the child at a specific period and manner. The courts shall penalise the parent who does not comply with the penal notice without reasonable justification.
Can a father get custody of his child?
In Singapore, the care and control order is normally given to the mothers. The courts rarely grant a full care and control order to the fathers unless:
- the consent is obtained from the mothers; or
- the child is at an age where he/she is capable to express clearly to the court regarding his/her wish to live with the father; or
- the mother is abusive and/or neglectful of her child.
Otherwise, the fathers can seek for a shared care and control order. Under this order, both parents get an equal amount of time that they can spend with the child. The father shall prove that he is the main caretaker of the child before the divorce. A shared care and control order would be granted by the court if it best serves the child’s welfare.
It is improbable for the court to grant a shared care and control order if a school-going child is involved due to the inconveniences of traveling between 2 homes regularly. Also, the courts would not grant this order if the parents’ relationship is rancorous and they have different parenting styles.
Types of Access
Access orders are normally un-monitored. A parent can spend time with the child without anyone’s supervision.
Supervised orders are frequently granted for reasons, for instance, to guard the child against possible physical or emotional abuse, or to assess the relationship between the child and the parent not granted with custody.
Deciding the type of access
Access Evaluation Reports
In deciding the type of access orders to be awarded, the court may ask for an ‘Access Evaluation Report’ if necessary, especially when both parents are disagreeable to the access times.
Access Evaluation Reports assist the court to settle disagreements over access to the child, for instance, the duration of access and whether a supervised order is needed etc. These reports are also only for the judge’s perusal.
Quantum of access
Parents are encouraged to reach a consensus about the days, time and place of the access. This speeds up the divorce proceedings and lessens the emotional damage to the parents and the child.
The court, in deciding the quantum of access, would consider the non-exhaustive factors as follows:
- The child’s needs
- The child’s wishes
- The non-custodial parent’s previous interaction with the child
- The history of the relationship between the non-custodial parent and the child
Eventually, the court would consider the welfare and best interests of the child in deciding the quantum of access time to be awarded. Instances of access durations are weekday access, weekend access, school holiday access and public holiday access.
Once access orders are awarded, some parents face the problem of being denied access to the child. However, the present Singapore law does not sufficiently address such a problem. If you encounter this problem, you may seek professional help from a lawyer.