Decoding the child custody concept by Gloria James-Civetta

As a practising divorce lawyer, I often find myself explaining the child custody concept to a parent seeking sole parental rights over the child. A parent's understanding seems to have been drawn from movies such as Kramer vs. Kramer & Marriage Story.

To quote (Kramer vs. Kramer, 1979) the dialogue between father and son, "I want my mommy! I'm all you got!!" and (Marriage Story, 2019), "We both decided not to be together where we are, but we want to be with you."

What does this mean?

- Understanding the term 'child custody' is decoded to being custody, care and control and access.

These three 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, a mother usually gets sole care and control of the child under the age of 7 years, where does this leave the father? Is this an unfair bias shown against the father?

Distinguishing Custody and Care & Control

The Court of Appeal case of CX v CY ([2005] 3 SLR(R) 690) held that custody refers to the right to make significant decisions on issues about 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 ([2020] SGHCF2), the Honourable Justice Debbie Ong stated;

Parents should look beyond their current post-divorce impasses and conflicts and move on to co-operate and work together for the best interest of their child. Ultimately it is the parents above all who must protect and promote their children's welfare.

Care and Control is defined as the custodial parent's right, providing the residency arrangement with the ability to decide on the child's daily matters and assume parental responsibility.

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 split their time with the child equally between the two separate households.

As noted in the case of AQL v AQM ([2012] 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 regularly commute between houses.

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 grant sole care and control to the mother, where the child is below seven years of age.

The courts generally regard the mothers as the primary caregivers due to the maternal bond being one of the most unexplainable wonders of human nature.

Importantly, this does not mean an automatic right for the mothers to be granted care and control over their 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 can 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.

i. 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 can spend quality time with the child and 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 supervise and oversee the parent-child's access arrangement as it is necessary to protect the child. It is prudent for parties to have a parenting plan schedule to minimise conflict and put in place a routine for the child.

ii. Visitation arrangements for the parent not having care and control

• Parents are encouraged to involve both the maternal and paternal grandparents in the child's life. Grandparents can assist the parents in the caregiving arrangements. Unfortunately, when parties decide to divorce or cease cohabitation, it has occasionally resulted in burning the relationship with the in-laws.
• If 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 custodial parent halted the visitation. It is interesting to note that the court is usually hesitant to defy the custodial parent's wishes if it's not in the child's best interest. The court will typically preserve the right of the natural parents to raise their child without disruption and will not readily displace the parents' authority.

Conclusion

I always advise the parents to explore alternative dispute resolution avenues to settle their dispute in high conflict custody battles. It is preferable to arrive at settlement arising from their agreed terms as opposed to a court decision.

By laying the child's welfare as the cornerstone, each parent is encouraged to view custody as an instrument of care and not a tool of control over the other parent.

Visit our series of articles on Child Custody & Maintenance in our Singapore Divorce Lawyer Blog site which provides all the answers you need.

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