As a lawyer practicing family law, I often find myself having to explain the child custody concept to a parent seeking sole parental rights over the child. A parent’s knowledge seems to have been drawn from movies such as Kramer vs. Kramer and Marriage Story.
In the dialogue between father and child, I want my mommy! I’m all you got!! (Kramer vs Kramer, 1979) and in another dialogue, the parents, Nicole and Charlie approached their child, Henry to tell him that we both decided not to be together where we are but we want to be with you. (Marriage Story, 2019) So, what does that mean?
These 3 components define how the child custody issue is dealt with in the Family Justice Court in Singapore. This has an impact on which parent gets custodial or non-custodial rights to a child. In both movies, the mothers were granted custody of the children.
Faced with the general presumption taken in Singapore, that is, a mother usually gets sole care and control of the child who is under the age of 7 years, where does this leave the father? Is this an unfair bias shown against the father?
Related Article: Custody Battles: 7 Things Dads Should Know
Distinguishing Custody and Care & Control
The Court of Appeal case of CX v CY ( 3 SLR(R) 690) held that custody refers to the right to make major decisions on issues pertaining to education, religion, medical, accommodation and residency on behalf of the child.
Having joint custody would require both parents to carry out the duty jointly. As the law (SECTION 46 OF THE WOMEN’S CHARTER CAP 353) imposes a statutory duty on both parents to continue with this joint parental responsibility, it is only in exceptional circumstances that one parent shall be awarded sole custody.
Examples of exceptional circumstances include where one parent displayed physical or sexual or emotional abuse towards the child; or where the lack of effective co-parenting is not in the child’s welfare. In VDZ v VEA ( SGHCF2), the Honourable Justice Debbie Ong encouraged parties to:
Care and Control is defined as the right of the custodial parent providing the residency arrangement with the ability to decide on the child’s daily matters and to assume parental responsibility.
Related Article: Understanding Child Custody: Sole Custody & Joint Custody
Shared Care and control
Where both parents are able to co-parent, the concept of shared care and control empowers the parents to decide on the daily matters jointly and to split their time with the child equally between the two separate households.
As noted in the case of AQL v AQM ( 1 SLR 840), a specific set of circumstances ought to be satisfied before the court is convinced that such an order will be in the best interest having regards to the welfare of the child. Parents would be required to have a stable and cordial relationship for this to work, as the child will have to live and commute regularly between houses.
Related Article: Child Custody – Who will the Child Live With?
Sole Care and Control
Where one custodial parent is given sole care and control, it means that the child’s primary residence is with that parent. The non-custodial parent will only be granted access ie visitation rights. The Singapore Courts typically grants sole care and control to the mother where the child is below 7 years of age as the courts generally regard the mothers as being the primary caregivers due to the maternal bond being one of the most unexplainable wonders of human nature.
Importantly, this does not mean that there is an automatic right for the mothers to be granted care and control over the fathers. The welfare and the best interest of the child is the ultimate test when the court decides in awarding sole care and control to the father if he is able to show that he is the one in a better position to take care of the child, or that the mother has mental health issues and cannot care for the child.
Visitation arrangements for the parent not having care and control
From a statutory standpoint (SECTION 126(2B)(b) OF THE WOMEN’S CHARTER CAP 353), access is not an automatic right as the court shall grant such access if the court considers it reasonable. When access orders are made, the parent is allowed to spend quality time with the child and to maintain a healthy parent-child relationship.
The main issue of contention is always, how much access should that parent have? Access is subject to the child’s needs and wishes and that parent’s previous contact and history of relationship with the child.
The types of access orders made can be liberal, reasonable or supervised. The parent having liberal access is free to arrange with the child or the other parent access time without limits. When reasonable access is ordered, then time limits apply.
If there is a fixed schedule put in place, on some occasions, especially when the child is an infant or very young, or subject to domestic violence, supervised access shall be ordered.
This means that an appropriate adult will be supervising and overseeing the access arrangement of the parent-child as it is necessary to protect the child. It is prudent for parties to have a parenting plan schedule put in place in order to minimize conflict and to put in place a routine for the child.
Visitation arrangements for the grandparents
Parents are encouraged to involve both the maternal and paternal grandparents in the child’s life. Grandparents can assist the parents in the care-giving arrangements. Unfortunately, when parties decide to divorce or cease cohabitation, occasionally it has resulted in burning the relationship with the in-laws.
In the event the custodial parent denies the grandparents their right to visitation, they can apply to the court to seek visitation rights.
The grandparents need to demonstrate that they had a meaningful relationship with the grandchild and that the visitation was halted by the custodial parent. It is interesting to note that the court is usually hesitant to defy the wishes of the custodial parent if it’s not in the best interest of the child. The court will typically preserve the right of the natural parents to raise their child without disruption and will not readily displace the authority of the parents.
Related Article: Grandparents’ Role in a Divorce Proceeding
In high conflict custody battles, I always advice the parents to explore alternative dispute resolution avenues to settle the dispute; as a settlement arising from the parents’ agreed terms as compared to a court decision provides a win-win for both. By laying the welfare of the child as the cornerstone, each parent is encouraged to view custody as an instrument of care and not an instrument of control over the other parent.