If you’re going through a Divorce and are thinking about how the Court will handle you and your spouse’s rights to the Children’s custody, care and control as well as access, then you first need to understand the different rights that parents have in relation to bringing up their children and the many unique concepts that are involved in this process.
There are 3 very different issues and rights that the Court will allow and grant to you and your spouse:
- Custody of the Children
- Care and Control of the Children
- Access to the Children
These 3 sets of rights and responsibilities are meant to deal with the different ways in which parents need to make decisions and interact with the Children in bringing them up.
The right to have Custody of the Children is a completely different to the right to have Care and Control of the Children.
The right of a parent to have Custody of the Children refers to the parent having the right to make significant and major decisions in relation to their upbringing and welfare, such as choosing their type of education, religion, nationality and medical treatment.
Custody of the Children is often one of the more hotly contested issues in a Divorce. According to Singapore Divorce and Family contained in the Women’s Charter, Guardianship of Infants Act, Administration of Muslim Law Act., the “child” and “children” that will be affected by a Divorce Custody Order are those who are a child of the marriage and who are under 21 years of age. The law of Custody is applied equally to everyone in Singapore irrespective of whether you are Muslim or non-Muslim.
On the other hand, the right of a parent to have Care and Control of the Children refers the parent having the right to make decisions on their day-to-day matters and daily activities, such as their living and care arrangements on a daily basis. In most cases, the Court will give one parent the right to have Care and Control of the Children (e.g. from Monday to Friday when the Children are attending school) for the majority of the time and another parent the right to have Access to the Children for only certain, specified periods (e.g. on weekends when the Children are not attending School).
Although parents and sufficiently mature children can inform the Court of their preferences regarding the Custody and Care and Control terms and arrangement, the Court will make the final decision by looking at will ultimately be in the children’s best interests.
When the Court has decided on how to assign and grant the parents rights to the Custody of the Children, it will state the final decision in a Court Order.
The Court can make an Order granting you and your spouse rights to the Custody of the Children in a number of different variations:
1. Sole Custody. If you are given Sole Custody of your Children, you will become the sole decision-maker for major decisions concerning their upbringing. The Court will usually give Sole Custody to one parent if the parents’ relationship is a very unhealthy, unstable and hostile state and where their constant arguing and antagonism makes it unfeasible, unrealistic and seemingly impossible or impracticable for them to communicate, discuss, compromise or agree on any issue or decision relating to the Children. It is also possible that the couple has also exhausted other alternative channels and methods of resolving their disagreements, such as mediation and counselling. In cases like these, the Court may feel that Sole Custody is more appropriate because it is better for the wellbeing of the Children that decision-making relating to major milestones and events in their lives are not negatively affected, complicated or disrupted because of the parents’ constant quarrelling and inability to cooperate even for their Children’s sake. In some cases, one parent may voluntarily choose to surrender her right to Custody of the Children during negotiation with the other parent and as a condition for getting more favourable terms and rights in other aspects of the Divorce and Ancillary Matters.
2. Joint Custody. If you and your spouse are given Joint Custody of your Children, both parents will be able to jointly make major decisions regarding the Children – this will need both parents to be able to discuss and agree on the decisions, and gives them an equal voice in deciding how to bring up the Children. Quite often, the Family Justice Courts in Singapore give Joint Custody compared to Sole Custody because it recognises the importance and benefit of having both parents actively participate in the upbringing of the Children and it wants to encourage both parents to be committed and take part in contributing to the development of the Children’s life, education and character even after their marriage has ended.
3. Hybrid Order. This is a Court Order which gives one parent with Custody of the Children on the condition that he must consult the other parent on some specific matters that relate to the welfare of the child such as religion or relocating to another country.
4. Split Custody Order. If there are 2 or more Children involved in the Divorce, a Split Custody Order can give one parent Custody of 1 child and the other parent Custody of the other child. This is uncommon and difficult to work in practice because it would involve splitting up the living arrangements of Children who are siblings. If you and your spouse have agreed on having a Split Custody Order for your Children, you may need to file an affidavit or sworn statement to explain why this arrangement will be in the best interests of your Children.
As long as a Custody Order or Care and Control Order is active, only the parent with Custody or Care and Control can bring the Children outside of Singapore unless the parent who does not have Custody or Care and Control has given his consent for this or the Court has given permission for this.
How does the Family Justice Court decide on which parent to give Custody or Care and Control to?
In deciding which parent to give Custody or Care and Control to, the Family Justice Court in Singapore takes into account the “welfare principle” which is a guiding principle stating that the Court will always make decisions that are in the best interests of the Children.
The welfare of the Children is something that is taken into account in broad terms and is not only calculated in terms of physical or financial terms. This means that the Court will also take into account what is best for the Children in terms of their emotional, psychological, educational and moral development. To decide on this, the Court can also obtain reports from social service agencies and counsellors to review the circumstances of the parents and Children and what type of Custody and Care and Control would be suitable for them.
The Social Welfare Report is often prepared by the Ministry of Social and Family Development (MFS) to help the Court decide which parents should have Custody and Care and Control of the Children. Officers from the government body will interview the parents and Children and study the relationship between the parents and Children and inform the Court.
What types of information and facts influence the Court’s decision on the Custody Order?
In arriving at a decision on the Custody Orders, the Court will consider a wide range of issues and factors, including the following:
- Who was the main and primary caregiver of the Child during their formative years?
- What are the current living arrangements?
- What are the wishes and preferences of the Children?
- What are the wishes and preferences of the Parents?
- How old are the Children?
- How is each parent able to financially support the Children?
- Does each parent have access to additional support to look after the Children (e.g. from their extended family or grandparents of the Children)?
It’s important to know that the Court does not regard the preferences of the parents as being more important than the welfare of the Children and the parent with a higher level of education or income will not automatically gain an advantage in terms of convincing the Court to give him Custody of the Children. The Court will always consider what arrangement is in the best interests of the Children and their welfare.
If you and your spouse are contested and disputing how the Custody of your Children should be decided and you are worried about how this will be decided in your Divorce, you may need to engage a lawyer experienced in Divorce and Family Law in Singapore to advise you of your rights and options as well as help plan and carry out your next steps.
If one parent is given the right to have Care and Control of the Children, that parent will have the right to be the main and primary caregiver of the children on a day-to-day basis and this almost always means that the Children will live with this parent for the majority of the week while they are attending school (e.g. Monday to Friday).
The other parent (who does not have the right to have Care and Control of the Children) will be given the right to have Access to the Children as a separate Order of the Court. Access to the Children means the right to spend time with the Children directly. This is also known as “visitation rights” in some other countries. The terms of Access can be either be worded in general and broad terms to cover any and all reasonable access to the child (usually subject to advance notice being given and consent obtained), or they can be worded in very strict and specific terms to cover a clearly defined list of time periods and situations (e.g. only during certain times of the week or year).
If you are the parent without the right to have Care and Control of the Children, the Court will usually give you reasonable Access to the Child unless there are very strong reasons against doing so.
If you are worried that your spouse who has Care and Control of the Children will often or repeatedly deny or prevent you from exercising your rights to have Access to the Children, you can apply to the Court to attach a “Penal Notice” to the Care and Control Order that will list out the specific terms and responsibilities which your spouse (who has Care and Control) must comply with, for example giving you access to the Children at the specific and stipulated periods stated in the Care and Control Order. The purpose and effect of the Penal Notice is that your spouse who breaches it will have to answer to the Court and may be punished with fines or imprisonment in serious cases.
How does the Family Justice Court decide on which parent to give Care and Control to?
The Family Justice Courts in Singapore tend to give the mother in a Divorce the right to Care and Control of the Children in most cases. Some say that this is because the perception and belief is that mothers typically are the main caregiver from the time of the Children are born and young and this makes them the more natural and suitable main caregiver unless there is evidence to show that this is not true, such as in cases where the mother has a past history of abusing, neglecting or mistreating her Children or in cases where a Family Court-appointed counsellor has given an evaluation report strongly recommends and convinces the Court that the mother is unsuitable to be given Care and Control.
In this way, many people feel that it is difficult – although not impossible – for most fathers in a Divorce to successfully challenge and fight to convince the Court to give them the right to have Care and Control of the Children.
It is also unlikely that the Court will give a father Care and Control of the Children unless the mother has agreed to this or the Children are mature enough to directly communicate and convey to the Court that they prefer to live with their father instead of their mother.
In some cases, a father can request for Shared Care and Control of the Children, meaning that the time spent with the Children will be shared equally amongst both parents. To get this, the father must have been the main and primary caregiver to the Children before the Divorce.
Shared Care and Control of the Children may be difficult to implement and enforce if the children are still attending school because it is often inconvenient to arrange for them to frequently and repeatedly commute and move and change their place of accommodation between 2 homes and addresses during the week. Shared Care and Control of the Children may also be unfeasible in cases where the parents’ relationship is very hostile (e.g. not on talking terms) or where they have completely different attitudes, practices and styles when it comes to bringing up the children.
As mentioned earlier, the other parent (who does not have the right to have Care and Control of the Children) will be given the right to have Access to the Children as a separate Order of the Court. Access to the Children (or “visitation rights”) means the right to spend time with the Children directly.
Although the Court generally takes the view that the Children must have access to the other parent (without Care and Control) because this is necessary, important and beneficial for their wellbeing and welfare, the exact terms of Access is something that will still need to be decided – this is either agreed between the parents or decided by the Court if the parents cannot agree.
The written law in Singapore (Women’s Charter) does not state what is the minimum or maximum amount of time a parent must have for Access. However, it does say that if you are the parent without Care and Control of the Children, then you should be given Access that is considered fair and reasonable – what is considered fair and reasonable will depend on the circumstances and situation in each case, and the Court will make a final decision on this.
When the Court gives a parent the right to have Access to the Children, it can also specify whether the Access will be unsupervised or supervised by a third party.
When the Access to the Children is unsupervised, this means that the parent will be allowed to spend time with the children without a third-party present supervising the session.
When the Access to the Children is unsupervised, this means that the parent will only be allowed to spend time with the children when a third-party is present to supervise the session. This is often done in cases where there is a need to safeguard the children from being potentially abused or mistreated by the parent, such as cases where the parent has a history of behaving in such a way with the children,
What types of information and facts influence the Court’s decision on the Access?
To help the Court decide on the extent, scope and limits of the Access, the Court can request for the authorities to prepare a confidential Access Evaluation Report, such as in a situation where the parents disagree with each other on how to manage the Access.
An Access Evaluation Report can help the Court solve disagreements regarding the duration of the Access and whether or not it should be supervised.
The Court will always encourage parents to discuss and agree on a feasible and fair arrangement in terms of the period, location and rules regarding the Access because a mutually agreed arrangement makes the Divorce process smoother and less stressful for both parents and their children.
What types of information and facts influence the Court’s decision on the terms of Access?
In arriving at a decision on the terms of Access, the Court will consider a wide range of issues and factors, including the following:
- What are the needs of the Children?
- What are the preferences of the Children?
- What was the amount of access did the parent without Care and Control previously have with the children?
- How healthy, stable or strong was the relationship between the parent without Care and Control previously have with the children?
- What will be in the best interests of the Children in terms of their welfare and wellbeing? Bearing this in mind, how should the access periods be managed in terms of weekdays, weekends, school holidays, religious occasions, public holidays and birthdays.
After the Court has made a decision on what the terms of Access are, it will issue a Court Order to formalise this. However, there are some occasions where you may encounter difficulty or challenges in exercising your rights to Access, for example, if your spouse with Care and Control deliberately makes it difficult or impossible for you to enjoy your rights and time with your children. If this is what you are going through, then you should speak to a Singapore Lawyer experienced in handling Divorce and Family Law matters so that you can understand your rights and plan your next steps in terms of requesting the Court to intervene in directing your spouse to comply with the Access Order and allow you to exercise your Access rights.