Child Custody, Care and Control & Access

  • Divorce
Child Custody, Care and Control & Access

General overview

The principal statute governing child custody in Singapore is The Guardianship of Infants Act, supplemented by the Women’s Charter and the Administration of Muslim Law Act. The question of custody over the child often opens the main discussion during a divorce. The Women’s Charter defines the word “child” as a child of a marriage who is currently below 21 years old.

Custody vs. Care and Control

Child custody grants one or both parents the authority to make major decisions for their child. Such decisions include those pertaining to the child’s education, religion, and health.

On the other hand, only one parent can be granted care and control. The parent with care and control is in charge of the child’s everyday matters. The court may opt to grant access to the child to another parent for a specific period of time.

What are the types of child custody?

There are four types of custody:

(1) Sole Custody Order

Only one parent can be granted this type of custody. A parent with a sole custody order is given the leading role in a child’s life, and is granted the authority to make all major decisions for the child.

There are three reasons a court may decide to issue this order:

  1. When the couple fails to communicate with each other harmoniously;
  2. When a parent renounces custody to the other parent due to the other ancillary matters;
  3. When a parent has a history of being abusive to the child.

(2) Joint custody order

In the case of joint custody, both parents are granted with authority to make significant decisions for the child. Both of the parents must participate in the discussion and arrive at the same decision. With this order, both parents are encouraged to cooperate and respect their equal right to decisions regarding the child.

When it comes to a child’s growth, Singapore courts believe that it is essential to experience the presence of both parents. Parenting, after all, is a lifetime obligation and does not necessarily end when a marriage ends. As a result, the court tends to grant more joint custody orders compared to sole custody orders.

(3) Hybrid order

A hybrid order is, in a way, a combination of the two orders mentioned above. If one parent is granted this type of custody, he or she still has an obligation to include the other parent in matters pertaining to the child’s welfare.

(4) Split custody order

The court may grant custody to both parents if they have more than one child in their marriage. If a married couple has two children, for instance, it is possible for one child to live with one parent and the second child to live with the other. Generally, however, Singapore courts rarely grant this form of custody since it prefers that siblings remain together so they can provide each other with emotional support.

A parent granted with a split custody order may travel overseas with the children. The custodial parent may give the non-custodial parent permission to take the children overseas. The non-custodial parent may also obtain a leave of the court to do the same. Either parent, however, may only travel overseas with the children up to a month at a time.

How does the court determine what type of custody to award?

To determine the type of custody to be awarded, Singapore courts apply a standard known as the “welfare principle,” which essentially refers to the best interests of the child. The court does not only take financial or physical comfort into consideration, but also the child’s physical, moral, and religious welfare. It also takes into account the child’s affection to the parent.

To ensure the best option for the child, the court may ask social services or a counsellor to suggest a type of custody order after assessing both the parents and the child. If asked by the court, officers from the Ministry of Culture, Community, and Youth may prepare a Social Welfare Report. This report will be based on their observation of parents’ interaction with the children. Such report is confidential, and only the judge may see it prior to making a decision.

The court takes into account several other factors when deciding the type of custody order to award. Some of these include:

  • The child’s primary caregiver during his or her formative years;
  • The current living arrangements;
  • The child’s preferences;
  • The preferences of both parents;
  • The age of the child;
  • The financial capability of both parents; and
  • The presence of family support.

Although the court will consider the financial capabilities of both parents, it doesn’t automatically mean that one parent has an advantage over the other. The court will ultimately prioritise the child’s welfare, and not the preferences and wishes of the parents.

How does the court usually determine care and control?

The care and control order determines the parent that the child will live with. The parent awarded with care and control makes him or her the child’s primary caregiver, and will therefore handle all the child’s everyday matters such as meals and transport.

A reasonable access order will be granted to the parent who is not awarded care and control. For the courts to refuse the granting of a reasonable access order, they will need valid and convincing evidence.

The court may opt to attach a “penal notice” to the care and control order. This notice dictates specific responsibilities and terms that the parent must comply with. This could include giving the other parent access to the child in a specific manner and during a specific period of time. If the parent refuses to comply with the penal notice, then the court may penalise him or her.

Can a father be granted custody?

In Singapore, it is more common for the care and control order to be awarded to the mothers. The father is rarely granted a full care and control order, unless:

  1. The mother provides consent;
  2. The child is of age to clearly express to the court his or her wishes to live with the father; or
  3. The mother is abusive and/or neglectful of her child.

If none of the above apply, the father may seek a shared care and control order. Under a shared care and control order, both parents are given an equal amount of time to spend with the child. However, the father must be able to provide evidence that he was the child’s main caretaker prior to the divorce.

The court will grant a shared care and control order if it assesses that such a form of custody is in the child’s best interests. This is unlikely, however, as it may be inconvenient for a child still attending school to travel between two homes on a regular basis. This type of order will also not be granted if the parents’ relationship with each other is a toxic one, and if they practice different styles of parenting.

Types of access

There are two types of access to a child:

  1. Unmonitored – A parent can spend time with the child without being supervised;
  2. Supervised – A parent must be supervised when with the child due to specific reasons. This includes protecting the child against possible abuse (physical or emotional) or to assess the relationship between the child and the parent not granted custody.

Determining the type of access

Determining the type of access to be awarded is not a task that the courts take lightly. The courts, therefore, may take the following into consideration:

Access Evaluation Reports

The court may require an Access Evaluation Report if it deems it necessary to make a decision. This may be the case when both parents cannot agree on access to the child, such as the duration of a parent’s access, or whether a supervised order is necessary. This confidential report is for the judge’s perusal only, and will help settle any disagreements on access times.

Quantum of access

When it comes to the days, place, and time of access, parents are strongly encouraged to arrive at a consensus in order to speed up the divorce process. Agreeing on such matters will also lessen the emotional damage to both the parents and the child. To decide on the quantum of access, the court takes into account the following factors:

  • The child’s needs;
  • The child’s wishes;
  • The non-custodial parent’s previous interaction with the child; and
  • The history of the relationship between the non-custodial parent and the child.

Ultimately, the court considers the child’s welfare and best interests when awarding the quantum of access time. Examples of durations awarded are weekend access, weekday access, public holiday access, and school holiday access.

At times, some parents find that they are denied access to the child. Singapore law, however, does not address this problem sufficiently. Should you face such problem, seek help from your family lawyer immediately.