Parents going through divorce proceedings typically worry the most about one matter – their children. Most parents desire to take their children with them after the divorce, and might even apply for their sole custody, care, and control. But how exactly do courts determine to whom a child should go?
Custody vs Care and Control
It is first necessary to understand the difference between the terms of “custody” and “care and control”. The layman typically refers to both generally as “custody,” although this is not exactly accurate.
“Care and control” refers to the upbringing of the child on a daily basis. This would include considerations of, for example, who the child lives with, what the child eats for his meals, and when the child goes to bed.
These are relatively minor and insignificant details, but “care and control” nevertheless is highly sought after by parents because that would allow them to see and interact with their children on a daily basis. The parent who is not granted “care and control” will typically be granted “access” – that is, the allowance to see the child every now and then.
“Custody” on the other hand refers to the power to make decisions for major and important issues. Such issues generally relate to religion, healthcare, and education.
Deciding on Custody
There are two types of orders that may be made regarding custody: sole custody and joint custody.
Sole custody would see that only one parent has the power to make major decisions for the child.
Joint custody would require the cooperation of both parents in making such decisions.
In recent years, the Court has been encouraging parents to continue to work together to care for their children even after a divorce. As such, orders for joint custody are more likely to be made than orders for sole custody, unless the circumstances call for it. For example, when one parent has ever abused the child in question, a sole custody order may be given to the other parent.
In less extreme situations, where the parents have such an acrimonious relationship that they are unable to work together properly in making decisions for their child, the Court may find it wise to award sole custody to either parent.
However, this is usually the exception rather than the norm, and the Court will decide on a case by case basis.
Deciding on Care and Control
In deciding to whom a child should go, courts typically take into consideration factors like a parent’s financial capability, ability to spend time with the child, and the values that he/she stands by (AAV v AAW [2009] 4 SLR(R) 488).
Where there are multiple children, the Court’s desire is to keep them together under the care and control of a single parent, unless there are special facts that would make it wise for the siblings to be brought up separately. An example could be where the siblings are considerably estranged such that a child would feel more comfortable living elsewhere (AFK v AFM [2010] SGDC 32).
Care and control does not always have to go to a single parent. In a unique scenario, the Court may find it desirable for a child to live with each parent at different times under a shared care and control order. This is a highly factual inquiry. The Courts are less likely to grant such an order, however, if the child is too young (AQL v AQM [2012] 1 SLR 840 where the child was merely three years old).
For more information on children matters, feel free to contact Gloria James-Civetta & Co at +65 6337 0469 or email us.
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