Nothing causes as much emotion and disputes as the custody of children in a divorce case. Feelings may run high over a property or a family pet, but the focus of most of the arguments during a divorce is undoubtedly the children.
Custody differs from care and control, both of which are the subject of orders from the court during divorce proceedings.
The difference between child custody and care and control
Custody is a status usually given to both parents jointly and provides the authority to make major decisions regarding the child, including education, religious guidance, plus health and medical care matters. However, there are different types of custody orders.
Care and control involve the child’s day-to-day care, and orders are usually granted to one parent only; care and control resolves where the child or children will live and involves decision-making on more mundane daily matters. The other parent who doesn’t have care and control is given defined access rights for specific periods.
The different types of child custody orders
The courts in Singapore award four types of child custody orders. When deciding on a custody order, the court will always consider the child’s best interests before anything else.
Sole custody order
Sole custody means one designated parent is solely responsible for the major decisions concerning a child.
A sole custody order can reflect a situation where communication between the parents has broken down, so a joint custody order simply wouldn’t work and would be detrimental to the child’s best interests.
The court usually expects to see that the couple has tried counselling and mediation before making a sole custody order; all avenues for reconciliation and cooperation must be exhausted.
Sole custody can also be a bargaining tool in a divorce settlement. Sometimes, a parent will forego custody to potentially put themselves in a better position when negotiating ancillary matters.
Joint custody order
A joint custody order enables both parents to make collective decisions over significant issues concerning their child. The order requires dialogue and consensus between the couple, but the advantage of this type of order is that both parents have an equal say.
Joint custody orders are increasingly the most common type of custody order made by the Singaporean courts; they are not without challenges. However, the idea is to encourage parents to cooperate rather than create a landscape that fosters division and hostility.
The courts are keen to promote the ethos that parenthood is a lifelong responsibility that doesn’t cease on divorce, and the presence of both parents in a child’s life is essential to their development and well-being.
Hybrid order
A hybrid order is literally just that, one parent is awarded custody, but that parent must consult the other when it comes to making decisions or resolving matters involving the child’s welfare.
Split custody order
A split custody order is when one parent is granted custody of an individual child, and the other parent has custody of the other child or children.
Split custody orders are relatively uncommon and would only occur in exceptional circumstances. The court will always believe that it is in the children’s best interests collectively to keep them together.
Care and control
Care and control are about which parent the child will live with and is not the same as custody. A care and control order gives the child’s daily care to one parent, with the other usually granted defined access rights.
Access for the parent without care and control is classified as ‘reasonable’. The definition of reasonable will depend on all the circumstances surrounding that family.
A care and control order can be specific, and list defined terms and responsibilities the parents must abide by. Most commonly, this explains that the parent with care and control cannot deny the other agreed access to the child at a specified time. Failure to comply with this can result in further court action.
Shared care and control
Care and control can be shared, meaning daily care is split between both parents. A court will only consider this if the arrangement is workable and puts first the child’s best interests.
Most shared care and control orders don’t involve school-age children because the logistics of this are impractical and unworkable.
If the parents are in dispute with one another and have very different lifestyles or parenting styles, then a judge is unlikely to grant a request for shared care and control.
Shared care and control are unnecessary if the parents already have a joint custody order.
Access
Access is the status awarded to the parent who does not have custody and control. Parents are encouraged to agree on the terms of access to minimise the impact on the children and any intervention from the court.
How much access should be given is often a real point of contention, particularly because the Women’s Charter only defines access as ‘fair and reasonable’ and leaves the court to decide what that means.
The court may ask for evaluation reports before deciding on which type of access order to issue. This is likely if the parents are disputing the terms of access.
Evaluation reports help the judge decide whether access should be supervised or unsupervised, how long access should be, and how frequently.
Access orders are usually unsupervised, meaning a parent can spend time with their child without the other parent, or a third party like a grandparent or social worker present. Supervised access orders are usually in place to protect a child from some sort of abuse or to assess the relationship between the child and the parent.
When deciding on an access order, the court will always prioritise the best interests and welfare of the child over and above any wishes of the parents.
If the parents wish to vary the terms of an access order, they must apply to the court to do this.
Deciding on the correct custody order
The court’s main priority is to put the welfare of the child front and centre when considering care, control, and custody arrangements. The judge will apply a standard called ‘the welfare principle’.
Welfare is considered in a broad context. Physical surroundings and the ability to support a child financially are essential, but there are other elements such as the child’s relationship with each parent, their emotional and moral needs, plus any religious factors.
A judge can request further information to make an accurate assessment, including reports from social services or counselling sessions to help assess the child.
The most requested report is a social welfare report which is provided when the parents dispute who should have custody of the child. The Ministry of Culture issues these reports.
Officers from the Ministry of Culture will speak to and observe the child with both parents. Only the judge can see the report; it is unavailable to the parents.
Factors a judge may consider:
- The primary caregiver during the child’s early years
- The age of the child
- The existing living arrangements
- The child’s wishes
- What the parents want
- The parent’s financial status
- Any other family support like grandparents
None of these factors will be placed above the overarching premise that the child’s welfare must come first. This is a priority over and above any wishes or preferences of the parties involved.
Final thoughts on child custody, care and control
Custody, care, and control arrangements for children are usually never without the requirement for some form of negotiation and are often disputed and acrimonious. Legal advice can make this process smoother and less confrontational.
Frequently asked questions
What is the legal definition of a child?
The Women’s Charter defines a child as a child of marriage currently under 21 years of age.
Are the children’s wishes considered by a judge when determining the type of custody order?
The judge will factor in their wishes if a child is considered mature enough. No definition is given as to what is regarded as a mature child.
The judge will always ultimately decide what they believe to be in the child’s best interests rather than based on the opinion of a child and/or their parents.
Does a better financial position improve the chances of being awarded custody of a child?
It’s a nice thought and quite a logical suggestion. However, the parent with a higher financial standing is not necessarily at an advantage in the eyes of the court when it comes to deciding appropriate custodial arrangements.
Similarly, if one parent has Singaporean citizenship and the other doesn’t, they are not necessarily at an advantage.
Which parent is usually awarded care and control?
In Singapore, most care and control orders are made in favour of the child’s mother. There must be compelling reasons for the court not to do this.
There might be a situation where the mother can’t care properly for the children, or if the mother agrees to the father’s request. If the child is old enough, they may express a preference to live with their father, and there could be other reasons which support this.
