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WHAT IS CHILD CUSTODY, CARE AND CONTROL & ACCESS

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WHAT IS CHILD CUSTODY, CARE AND CONTROL, AND ACCESS?

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  1. As part of divorce proceedings, the Court has the power to make orders in relation to ancillary matters between the parties to the marriage. Where parties to the marriage are also parents, the most important of these ancillary matters would be the issues relating to the child of the marriage, which consists of the following:
  • Custody of the child;
  • Care and Control of the child;
  • Access to the child; and
  • Maintenance of the child.

  1. This article will briefly explain items (i) to (iii) listed above, and will also set out some factors that the Court may consider in making orders relating to the child of the marriage. Item (iv), relating to the Court’s order for a parent to pay maintenance for a child (including the factors that the Court will consider in awarding the amount of maintenance), has been explored in a different article.
  1. From the outset, it bears emphasis that in all proceedings relating to a child, the Court will have regard to the welfare of the child as the first and paramount consideration. The Court will therefore make an order that it deems to be in the best interests of the child, and all other considerations (such as, for instance, the wishes of the parents) are secondary to the Court’s inquiry. The welfare principle applies throughout all proceedings relating to the custody, care and control, and access of the child.
  1. Preliminarily, it should also be noted that the Court may make orders relating to the custody, care and control, and access of a child even in the absence of divorce proceedings between the child’s parents. The Court will consider whether to grant such an application if the child’s parents and/or guardians make the relevant application to Court. The factors that the Court will consider in such an application remain similar to those set out below.

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Custody

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  1. Custody of a child concerns the long-term decisions that a parent may make for the welfare of the child. This generally includes major decisions impacting the child in the areas of education, healthcare, and religion. Such major decisions could include, for example, which primary school the child should attend, as well as what religion the child should be brought up in. In making a decision on custody of a child, the Court may make the following orders:
  • Sole custody to one of the child’s parents;
  • Joint custody to both of the child’s parents; or
  • No order as to custody.
  1. Under Singapore law, the Courts generally incline towards granting an order for joint custody, or towards making no order as to custody. If a joint custody order is made by the Court, both of the child’s parents will have to jointly make decisions regarding the major decisions affecting the child.
  1. In the latter case, where the Court makes no order as to custody, a common misconception is that both parents would not have custody over the child. This is inaccurate. Instead, where the Court chooses to make no order on the custody of the child, this means that the law of parenthood governs the matter, and both parents have the responsibility to make decisions for the child together.
  1. It may therefore be seen that practically speaking, a Court order for joint custody of the child to both his or her parents is very similar to a situation in which the Court chooses to make no order as to custody of the child. In both cases, the parents of the child are expected to make major decisions for the child in a cooperative manner for the child’s best interests. The Court is more likely to make no order on custody (as opposed to a joint custody order) where there is no dispute between the child’s parents over any serious matters relating to the child’s upbringing.
  1. As may be observed from the discussion above, a sole custody order in favour of one parent is unusual in Singapore, and will only be granted in extreme cases, such as where one of the child’s parents has abused the child. In general, the fact that the child’s parents have an acrimonious relationship is not sufficient for the Court to make an order as to sole custody to either parent.

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Care and Control

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  1. In contrast to custody of a child which allows the parent or parents with custody to make major decisions impacting a child’s life, care and control of a child refers to the decisions that a parent makes for the child on a day-to-day basis. Such decisions could include, for instance, how the child is to travel to school, or what the child should eat for dinner. The types of care and control orders that a Court may make are:
  • Sole care and control to one of the child’s parents;
  • Shared care and control to both parents; or
  • Split care and control.
  1. An order for sole care and control to one of the child’s parents is the most common order made in relation to an application for care and control. An order for sole care and control to one parent means that the child would reside with the parent with care and control on a daily basis. This also means that the parent with sole care and control is the daily caregiver of the child and has the authority to make day-to-day decisions for the child, such as what the child eats or how the child dresses. In deciding which parent to grant sole care and control to, the Court will consider all the relevant factors, such as which parent has been caring for the child before proceedings were commenced, and which parent is better placed to care for the child moving forward.
  1. In recent years, the concept of shared care and control has also gained traction in the Singapore Courts. An order for shared care and control means that the children will spend a split amount of time with each parent each week, although the split need not be equal. In deciding whether to make an order for shared care and control, the Court will consider the age of the child, as well as whether the parties are able to make the necessary arrangements to facilitate such an order. In a situation where the divorcing parties’ relationship is extremely acrimonious, and parties are unable to communicate, the Court is unlikely to grant an order for shared care and control.
  1. An order for split care and control applies in a situation where the divorcing parties have more than one child. Where parties have more than one child, an order for split care and control refers to a situation in which the mother is ordered to have care and control over one or more of the children, while the father is granted care and control over the remaining children. However, it should be noted that the Court rarely grants an order for split care and control as the general view is that it is not ideal for siblings to be separated. Even if the divorcing parties both agree on split care and control, the parties will have to convince the Court that such an arrangement is in the best interests of the children.

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Access

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  1. Access is usually ordered in favour of the parent who does not have care and control of the child. This is to ensure that the child still gets to spend time with the parent without care and control, as the general view is that it is in the child’s best interests to be able to bond with both parents. The Court may make orders as to whether the parent without care and control is to have reasonable or liberal access to the child.
  1. In cases where the parents of the child are able to communicate with each other, the Court may order that parties are to agree on the access times for the parent without care and control. The benefit of such an arrangement is that it is flexible and allows parties to work around the child’s schedule, which might change constantly due to school or other commitments.
  1. However, in cases where the relationship between the child’s parents have become acrimonious, to the extent that parties are not able to communicate properly, the Court order regarding access may set out the specific times during which the parent without care and control may have access to the child. Such specific orders may include the time and days of the week on which the parent is to have access to the child, how the child’s school holidays are to be split, how the child’s public holidays are to be split, as well as whether either parent is permitted to bring the child overseas. Such orders will have to be strictly complied with by the divorcing parties.
  1. The Court also has the power to attach conditions to an order for access, if it deems such conditions to be necessary in the child’s best interests. For example, in a previous case, the Court ordered that only immediate family members of the child’s father could accompany the father and child on their overseas trip. Such an order was made to ensure that the father did not bring his female friend along on the trip, as this would have hindered the opportunities for bonding between the father and son.
  1. In cases where there are problems with access for the parent without care and control, for instance, where the child is reluctant to spend time with that parent, or where the parent needs assistance in handling the child, the Court order may account for this. Some possible orders that the Court may make in this regard are orders for: (a) supervised access; and (b) supervised exchange.
  1. Where the Court makes an order for supervised access, this generally means that a third party will be present when the parent without care and control is spending his or her access time with the child. The Court may, for example, make an order for supervised access to take place at a Divorce Support Specialist Agency (DSSA), such that professionals working at the DSSA can help to facilitate the periods of access.
  1. If the Court makes an order for supervised exchange, this means that a third party will help to facilitate the transfer of the child from the parent who has care and control, to the parent without care and control. This may be done by one parent leaving the child with a social worker and/or counsellor at DSSA, before the other parent attends at the DSSA to pick up the child. The situation is then reversed when the access period comes to an end.
  1. For both supervised access and supervised exchange orders, it is hoped that this is merely a temporary arrangement, and that parties will gradually be able to transition into an arrangement which does not necessitate the interference of third parties. The Court in making such orders also has the power to order a report to be prepared by the DSSA, which would help the Court decide the most appropriate course forward, which would be in the child’s best interests.

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Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only, and to enable you to learn more about our firm, our services and our lawyers.  Information on this website may not constitute the most up-to-date legal or other information.  Readers of this website should engage a lawyer to obtain advice with respect to any particular legal matter.

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