Divorce happens frequently in Singapore due to a host of reasons: quarrels, adultery, separation, desertion, unreasonable behaviour, domestic violence etc.
This article aims to help parties understand their rights concerning the ancillary matters that need to be resolved when a divorce occurs. Ancillary matters (“Ancillary Matters”) include the following:
- Child custody, care and control, access (“Child Rights Issues”)
- Splitting of matrimonial home and assets (“Matrimonial Assets Issues”)
- Maintenance for wife, husband and children (“Maintenance Issues”)
- Maintenance for children
In the first of a 3-part series regarding ancillary matters, we will talk about child rights issues in this article.
The ancillary matters for each divorce are different with unique factors to consider. This article provides a mere overview of the general principles. The examples and factors raised are not exhaustive. For detailed legal advice on how these principles apply or ought to be varied to your case personally, the reader should consult a professional lawyer.
Child Custody: Red Pill or Blue Pill?
What is the difference between Joint Custody and Sole Custody?
Child custody is one of the important components of the bundle of child rights. The parent granted child custody in a divorce will be responsible for making decisions concerning the following vital aspects of the child’s life (“Custody Aspects”):
- Medical decisions; and
Joint custody is the norm
Generally, the Court’s will award child rights with the child’s best interest as its foremost consideration. Recent court judgments lean towards joint custody, unless there are exceptional circumstances warranting an order of sole custody. Both parents in a divorce may have a broken relationship, but both still hold equal status as the child’s parents. The Court prefers to grant joint custody rights to the parties as it would be unfair to one party if he/she is deprived of decision-making powers concerning the above custody aspects.
Joint custody means that both parents must reach an agreement on the custody aspects. Parties who underwent an acrimonious divorce may struggle immensely to agree on custody aspects.
For example, joint custody means both parents should agree on the child’s primary school when he turns 7 years old. If the father prefers school A while the mother prefers school B, they may have to return to Court for an order if there is no consensus. Court mediation or counselling may be a good approach to take in such situations.
Sole custody in exceptional circumstances
The Court may grant sole custody in exceptional circumstances which indicate that a joint custody order would be against the child’s best interest as:
- where one parent is found to have physically, sexually or emotionally abused the child; or
- where parties are still unable to cooperate despite mediation and counselling and such uncooperative attitudes are harmful to the child; or
- where one parent demonstrates poor decision-making abilities even for his/her own welfare.
The Courts, being protective of the child’s best interests, can make a sole custody order because forcing both parents to share custody of the child would ultimately harm the child. The parent seeking sole custody (“Parent A”) must prove the other parent (“Parent B”) is unsuitable to hold joint custody based on the above factors.
Often, Parent A will have to show medical reports or police reports to prove physical abuse. If Parent A wishes to show that Parent B is a poor decision maker, for example, has gambling or drinking habits, video or photo evidence of such habits would also be helpful.
Care and Control: What’s for Breakfast Today
What is Care and Control and how does the Court decide?
Care and control is the most hotly contested child rights issue because it encompasses all decisions made for the child during his/her daily life. Examples include what time the child awakes and sleeps, what he should eat or wear, what are his play and study times etc. The parent who is granted care and control (“Primary Parent”) is also expected to be able to provide accommodation for the child.
There is a slight advantage in mothers obtaining care and control for children below 7 years old.
However, the Court does consider other factors as well. Some examples include:
- Which party is more financially able to take care of the child’s daily living;
- Which party can provide a stable and structured environment for the child
- Which party can provide more convenient living arrangements that do not disrupt the child’s existing lifestyle;
- The wishes of the child (if he is old enough to express an independent opinion)
Typically, to become the primary parent, the parent will tender evidence showing that he/she is more well-equipped to handle the child’s everyday life. Some examples include:
- Receipts showing that they have been paying the child’s school fees;
- Statements from school showing that the parent is participating in Meet-the-Teachers sessions, concerned about child’s grades etc.
- Payslips and/or income statements showing financial ability;
- Receipts showing the parent has been paying for the everyday needs of the child (e.g. medical/dental care, food, clothes etc.)
- Counsellor/Social worker statements taken from the child showing a preference for the parent.
Access Rights: Time to Meet for Fun Outings
If I am not granted Care and Control, what other child rights do I have?
The parent who was not granted care and control (or gives up this right) can ask for access rights (“Secondary Parent”). Access rights are basically stipulated hours and/or days in which the Secondary Parent can interact with the child.
There are several types of access rights (the following is a non-exhaustive list of some examples):
- liberal access: the Secondary Parent may bring the child anywhere and do any activity
- supervised access: the Secondary Parent is limited to interacting with the child in the presence of the Primary Parent, social worker or family counsellor etc.
- overnight access: the Secondary Parent can stay overnight with the child at the Secondary Parent’s home or elsewhere as ordered by the Court.
Some examples of an access right’s order may look like this:
- “The [Father] is granted access to the child on every Sunday of the month, from 10am to 5pm. This access will begin on 1 February 2017.”
- “The [Father] is granted overnight access to the child on every Saturday and Sunday of the month. The access shall start on Saturday 6pm and end on Sunday 6pm. This access will begin on 1 February 2017”
Parties can also include orders for access on specific school holidays periods and/or public holidays.
Normally, the Secondary Parent will not be allowed to bring the child overseas unless the Primary Parent gives consent. The Secondary Parent should obtain written consent through handphone text messages or email:
- The Secondary Parent will text/email the Primary Parent the exact dates and time he wishes to bring the child overseas (“overseas access proposal”). The Secondary Parent should state the deadline for the Primary Parent to respond.
- The Secondary Parent should not buy hotel accommodation, air tickets or incur other travel expenses until the Primary Parent responds.
- The Primary Parent will have to respond to the Secondary Parent to agree or disagree to the overseas access proposal. If the Primary Parent does not respond, it should be treated as a disagreement to the overseas access proposal.
- The Secondary Parent should keep the text message/email as written proof of the communication between the parties.
- If the Primary Parent disagrees, the Secondary Parent can apply to Court to grant the overseas access.
When both parents cannot agree on the length or type of access, the Court will decide based on the following factors:
- the amount of time the Secondary Parent spent with the child daily during the marriage;
- whether the Secondary Parent is indeed able to exercise the access granted to him/her (e.g. If the father is requesting for access during his working hours, then it would be deemed unreasonable since he would be busy at work then);
- Whether the Secondary Parent can prove that he fully utilises his time with the child to bond with the child; and
- How close the child is to the Secondary Parent
Sometimes, the Court may order family counsellors to speak to the child if he is mature enough to express his feelings regarding his relationship with his parents. If so, the Court can also take into account the child’s feelings towards the respective parents when deciding on Care and Control (for Primary Parent) or access rights (for Secondary Parent).
A Secondary Parent who is asking the Court for more access time should provide evidence to show that he is bonding well with the child. Some examples include:
- Skype, WhatsApp or telephone conversations with the child showing good bonding and trust from the child;
- Pictures, videos, recordings of the child and the Secondary Parent enjoying their times spent together (e.g. at a Universal Studios outing); and
- Dialogue with the child’s school teachers indicating concern over the child’s education.
It would be prudent for the Primary Parent to consent to reasonable access rights instead of depriving the Secondary Parent of access altogether. The Court is almost always going to grant access rights: the only variable would be the type and number of hours of access.
Every parent regards their child as their most prized and dearly loved darling. Similarly, every child looks up to their parents as faithful guardians, loving caretakers and behavioural models. In contesting for child rights, we pray parents will exercise sensitivity and care towards the tender feelings of their young ones and be exemplary in conduct regardless of their personal differences.
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This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.