Lie Chin Chin

Issues Relating to Children During Divorce Proceedings

SUMMARY:

Matters relating to your children will weigh heavily on your mind during your divorce proceedings . You will want to know how the Court might decide on issues relating to your children. This article will help you to understand how the Court decides on those issues and give you a rough idea of what to expect for your children after your divorce.

 

During divorce proceedings, the care and living arrangements of your child or children would be one of the most pressing matters weighing heavily on your mind. The Court can make orders on custody, care, control and access to your children. When the Court considers these matters in a divorce suit, their utmost concern is for the welfare and the interests of your child or children, not the wishes, or even the mutual agreement of the parents.

What is Custody?

In the realm of family law, custody refers to the parent’s right to have a say in major decisions relating to the upbringing and education of the child. In a large majority of cases, the courts usually award joint custody to divorcing parents as it regards the involvement of both parents as being in the best interests of the child.

 

The Court only grants sole custody in exceptional cases, such as cases where one parent has physically, sexually or emotionally abused the child. Where there are exceptional circumstances which make it undesirable that the child be entrusted to either parent, the Court may grant custody to any other relative of the child.

“In recent times, parties are usually granted joint custody, meaning that both parents still have the right to jointly decide custody issues relating to the child(ren). This is because the Court recognises that unlike marital relationships which can be ended through divorce, the blood ties between each parent and the child(ren) are not, and should not be, as easily severable.”

– Lie Chin Chin “Instant Legal Protection for Your Family”, page 134

Case Study on custody of child 

Ms CX asked the Court to grant her sole custody of her child. She alleged that her husband, Mr CY, constantly failed to pay for their child’s maintenance and medical expenses. Ms CX stated that Mr CY used foul language and abused her in front of the child, and also alleged that Mr CY’s sexual misconduct with other women would be a negative influence on their child. However, Mr CY exhibited a desire to maintain contact with the child and to maintain the child.

The Court found that Ms CX’s allegations were insufficient to warrant an award of sole custody of the child, taking the view that parental responsibility was a lifetime obligation and neither parent had a prior right over the child.

The Court looked at what would be best for the child and found that in the circumstances, both parents clearly showed that they loved the child and could eventually co-operate for the benefit of the child. The Court emphasised that it would look to act in the child’s best interests and stated that the child has a right to the guidance of both his parents. The Court thus dismissed Ms CX’s claim for sole custody and granted joint custody instead.

What is Care and Control?

Care and control is the parent’s right to have a say in the day to day decisions of the child(ren)’s life/ lives. The parent awarded care and control of the child is also the parent with whom the child will stay with on a daily basis. The Court decides with which parent the child should stay with based on the best interests of the child. The Court may consider any factors that would affect its determination of the best interests of the child. 

For example, if the child is young, the Court would usually make an order for the child to stay with the mother unless there are other factors, such as the mother being an unsuitable caregiver. In the case of an older child, the Court will likely give more weight to the wishes of the child. In addition, in the case of siblings, the Court does not normally order split care and control, for example, an order that the father will have care and control of the son while the mother will have care and control of the daughter. Parties seeking orders deviating from the above ‘norms’ will have to show good reasons that the orders they seek are truly in the best interests of the child.

Do note that the Court may be reluctant to order a sale of the matrimonial home if the child would have otherwise no place to stay. However, the Court would likely order the house to be sold if the parent having care and control of the child has no means to retain the house, for example, if that parent is unable to take over the mortgage loan.

What is an Access Order?

Access is the right of the parent who does not have care and control of the child to visit and interact with the child. The Court will consider the practicality of the access arrangements with regard to the child’s welfare and how reasonable such arrangements are.

The Court may also implement conditions such as supervised access where the guardian of the child or a third party must be present during the access sessions. This tends to be granted only in special situations such as where the parent and child were previously estranged, or need to get used to each other, or even in cases with a history of child abuse. 

The Court may order liberal or reasonable access and allow the parents to work out the access arrangements between themselves. Alternatively, if the parents are unable to coordinate or work out their schedules with respect to access, the Court may step in to order fixed access times.

Case Study of an amendment of an access order:

In a previous case we have handled, the children of the marriage lived with Ms H. The Court granted the ex-husband, Mr W, overnight access to the children on Wednesdays, Fridays and Saturdays. However, after the first week of carrying out these orders, the parties found that this arrangement was too taxing for their children, who were being ferried from parent to parent within a short span of time. 

 

The parties thus came to an agreement between themselves for the children’s sake: Mr W would have overnight access on alternate weekends and would be able to pick the children from school every Thursday and Friday. The Court was more than willing to amend its order to accommodate this agreement as it was for the benefit of the children. Further, upon hearing that during their time with Mr W, the children would occasionally fail to do their homework, the Court also warned Mr W that he would have to ensure that their school work would not be adversely affected. From this instance, we can see that the Court is constantly trying to make orders that would serve the children’s best interests.

Examples of access orders

Here is an example of how an order for access by the Court can be structured: Parent A has sole custody, care and control of the children. The Court may then say that Parent A is to pick the children up from school every Monday and Tuesday, whereas Parent B is to pick the children from school and send them back to Parent A’s house every Wednesday, Thursday and Friday. Parent B also gets to spend Saturdays (from 9am onwards) with the children, but must send them back to Parent A’s house by 10pm on the same day.


Next, an example of a more liberal order for access: Parent A has sole custody, care and control of the children. The Court may order that Parent A is to pick the children up from school every Monday, Tuesday and Wednesday, whereas Parent B is to pick the children from school every Thursday and Friday, take dinner with them, and send them back to Parent A’s house by 8pm on Thursdays. On Fridays, Parent B can have overnight access, and need only to return the children to Parent A’s house the following day (Saturday) by 7pm.


If you wish to read up more on common problems related to filing for a divorce in Singapore, you may head to this page

Prosecution for fresh acts of violence after PPO is issued

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