When a marriage breaks down, one of the most pressing concerns for either party is the welfare and guardianship of their children.
In Singapore, the guiding principle in deciding matters pertaining to a child is their well-being and best interests, which is enshrined in section 125 of the Woman’s Charter and s 3 of the Guardianship of Infants Act. Nevertheless, a commonly asked question is Why are mothers typically favoured in custody battles?
This article delves into the considerations that determine the custody and care of children in cases of separation or divorce.
At the outset, it is important to note the difference between Custody and Care and Control:
- Custody: Refers to having authority and responsibility over the upbringing of the child, including the ability to make decisions on major matters with long-term consequences, such as education, healthcare and religion.
- Care and Control: Refers to the parent whom the child primarily resides with and the parent who makes day-to-day decisions with short-term consequences.
Typically, joint custody is granted to both parents, and sole custody is only reserved for exceptional cases, such as when one parent has been abusive or has otherwise demonstrated their unsuitability as a caregiver.
An illustrative case involved a mother receiving sole custody due to the father’s inability to make responsible decisions for his own well-being, which included a history of HIV-positive status and multiple homosexual encounters.
In another case, a mother was granted sole custody of the children as the father was largely a remote and absent parent for a large majority of the children’s lives. He did not live with them and at best saw them only fortnightly.
It was also clear to the Court that the father would not be equipped with sufficient knowledge and understanding of the needs of the children to be able to make meaningful co-parenting decisions.
However, this order for sole custody was made with certain caveats to restore and preserve the father’s access to the children (VSR v VSS  SGFC 76)
Father Granted Sole Custody
In one case, a father was granted sole custody of the children even though he travels sometimes for work because in comparison, the mother spends almost 6 to 8 months abroad per year.
It was in the best interest of the children to remain in the father’s care since at the time of the decision the children were already placed in schools in Singapore and were in the course of settling down in their studies (Wong Phila Mae v Shaw Harold  1 SLR(R) 680).
It’s worth noting that parental acrimony alone is not a sufficient reason for sole custody, unless it is accompanied by more exceptional facts or circumstances that are relevant to the issue. This is because co-parenting is expected of both parents and the Court expects parents to continue to work together for the children despite their acrimony.
The moral and legal duty of parenthood under s 46(1) of the Woman’s Charter 1961 remains constant and sacrosanct during the subsistence of the marriage and continues despite its dissolution.
In one case, parties were still ordered to share custody despite their acrimonious relationship, differing opinions towards the child’s education and therapy and allegations against each parent (VKQ v VKR  SGFC 66).
As it can be seen, it would only be in exceptional circumstances where sole custody is granted.
“Hence, it is a common misconception that mothers would always get sole custody of the children.”
Care and Control of the Children
As for care and control (where the child lives), the Court’s first and paramount concern is the welfare and best interests of the child, encompassing their overall well-being and upbringing. If one parent is granted care and control, the court will also make access orders to ensure that both parents continue to play a role in the child’s life.
In making these determinations, the court considers various factors, such as:
Conduct of Parents
Although parents may often dispute which one of them is better suited to provide for and look after the children, the Court will generally award custody to the parent who demonstrates a greater commitment to the children’s well-being.
This decision will depend on the specific circumstances of the case and the unique needs of each child. It’s important to note that a parent’s ability to care for their children isn’t solely dependent on their financial means.
For instance, in one case, the mother was awarded care and control because she was deemed better equipped to care for the child,  while in another case, a mother who prioritized her own needs over the child’s was not granted care and control.
Fathers can also be granted care and control when it is in the welfare of the children. For example, there was a case where a father was granted care and control as he was the parent who was able to faithfully ensure the child’s attendance at preschool while the mother was often uncooperative to the child’s enrolment in preschool.  This order was made despite the fact that the father’s employment does require him to travel (VWJ v VWI  SGHCF 7)
In certain cases, where there has been parental alienation by the care and control parent leading to animosity between the other parent and the children, the Court may reverse the care and control order for the children to be with the parent who is more reasonable and more willing to involve the other parent in the children’s lives (ABW v ABV  2 SLR 769)
Read more: Parental Alienation After Divorce
Continuity of Care
In most cases, it is generally preferable to maintain the current care arrangements for the children, provided that such arrangements do not pose a threat to their welfare. For example, if the father has been the primary caregiver with no particular complaints and he can provide the children with stability and consistency of care, he would be awarded care and control of the children.
It is true that the Court does recognises the maternal bond and with all things being equal, young children would generally be cared for by their mother who is deemed the preferred carer. However, this factor is just one of the many factors being considered and is not solely determinative.
In addition, it’s crucial to consider the children’s perspectives by conducting judicial interviews, provided that the children are sufficiently mature to express their opinions independently. There may be instances where the children have such a negative relationship with one parent that granting that parent care and control would not be in their best interests.
Read more: How the Court Determines Children’s Wishes
Siblings to be Kept Together
Unless the circumstances require, the Court would usually prefer to keep siblings together. In one case, split care and control was ordered as the Court considered that the older siblings not only had a huge age gap with the younger sibling, they had not grown up together and further had a settled routine with their father while their younger sibling lived with their mother.
In view of the above, it is evident that there is no predetermined outcome regarding the custody, care and control, and access of children during custody battles in Singapore. Regardless of whether it is the father or mother, the court’s ultimate goal is to make a decision that is in the best interests and welfare of the children.
 Tan Siew Kee v Chua Ah Boey  SLR(R) 725
 NK v NL  3 SLR(R) 743
 AFK v AFM  SGDC 32
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