Child Custody, Access and The Welfare Principle
Definition of Child Custody
Custody is a legal concept
Four different types of custody orders may be made.
- Sole custody order. The custodial parent may make major decisions for the child without the agreement of the other parent.
- Joint Custody order. Both parents must make major decisions for the child jointly- i.e. they must agree on the decisions which are made. In the absence of agreement, regretfully, either parent will have to apply to court for a determination of the disputed issues.
- Hybrid order. This is a sole custody order but includes an order that the custodial parent must consult (or even obtain the consent of ) the non-custodial parent when making decisions on specified matters , for example, choice of school, choice of course in school and so on.
- Split custody order. This is when the custody of one or more siblings is granted to one parent and the custody of the other siblings is granted to the other parent. As a general rule, siblings should be cared for by the same parent. If a split custody order is sought, then the parents must file affidavits in support of such a split custody order and explain how this would be in the best interests of the children.
The three main reasons of major decision making are:
- Medical. This includes decisions whether the child is to be hospitalised, whether a non-emergency surgical procedure is to be performed on the child.
- Education. This involves issues such as the choice of school, choice of enrichment classes, choice of course in school, choice of subjects, whether the child is to attend a particular school trip or outing, or tuition.
- Religion. This involves the religious instruction of the child, attendance at religious places of worship, undergoing religious ceremonies, etc.
Custody is different from the issue of care and control. Care and control means with which parent the child lives on a day-to-day basis. The non-custodial parent who does not have care and control of the child will have access to the child. There is also a situation in which care and control of children is split, in much the same way as there is a split custody order, i.e. when the siblings live with different parents.
Basic Principle The starting point is a presumption that the child would be able to have access to the non-custodial parent as such access would be beneficial for the child. The issue is then the quantum of access.
Quantum of access
This is dependent on various factors, including but not limited to:
- The child’s needs.
- The child’s wishes.
- The non-custodial parent’s previous contact with the child.
- The history of the relationship between the child and the non-custodial parent.
Types of access orders Access orders are generally unsupervised i.e. the non-custodial parent will be able to spend time on his own with the child without any third party monitoring the access. If access is to be supervised or is with conditions, then one must understand the purpose of supervised access order in order to decide what would be the most appropriate terms to include in the order.
They are designed to:
- protect the child from possible abuse whether physical or emotional;
- assess the relationship of the non-custodial parent with the child especially if contact has been infrequent; or
- improve the relationship between the child and the non-custodial parent?
Access periods include:
- Weekday access. This is usually mid-week for a few hours and would usually be subject to the child’s school schedule or other activities, e.g. tuition
- Weekend access. This may include overnight access and would also have to take in to account the child’s school schedule and other activities.
- Public holiday access. Parties often come to an arrangement where each parent spends alternate public holidays with the child. Certain public holidays may be more significant to parties for example, Lunar New Year for Chinese parties or Deepavali for Indian parties. Special arrangements can be made for such significant public holidays for example, if one parent has reunion dinner on Lunar New Year eve with the child, then the other parent then has the child with him/her on the first day of Lunar New Year and the first parent then has the child on the second day of Lunar New Year. This arrangement can then be alternated for the next year
- School holiday access. There are four main school holidays. These are:
a) one-week March school holidays;
b) four-week June school holidays
c) one-week September school holidays; and
d) five-and-a-half-week November/December school holidays.
- Other school holidays. These are days in which the children do not need to attend school and which are not gazetted public holidays, for example Children’s Day, Teachers’ Day, Youth Day and PSLE marking days.
- Other special occasions for example:
a) Father’s Day
b) Mother’s Day
c) Birthdays of the children or their parents
d) Access for the purpose of attending a relative’s funeral or a wedding, etc
The Welfare Principle
- What is the welfare principle?In any proceedings before any court where the custody or upbringing of a child is in question, the court is asked to regard the welfare of the child as the first and paramount consideration.The welfare of the child is not to be measured in monetary terms. It includes the child’s moral and religious welfare, his physical well-being, ties of affection, his happiness, comfort and security.
- The factors to consider in determining welfare of the child. These factors are not exhaustive and include:
- continuity of care given to the child;
- the child’s sense of security;
- the child’s own wishes about who he should live with;
- the parent’s wishes;
- the age of the child;
- the race and religion of the child;
- the race and religion of the parents;
- material circumstances of the parents; and
- that siblings should not be separated.