Getting divorced: What happens to the children?

Getting divorced: What happens to the children?

  1. Explain what rights of custody both parents have in your jurisdiction whether (a) married, or (b) unmarried?
  2. At what age are children considered adults by the court?
  3. What is the duration of children orders (up to the age of 16 or 18 or otherwise)?
  4. What orders can the court make in relation to children? Does the court automatically make orders in relation to child arrangements in the event of divorce?
  5. What factors does the court consider when making orders in relation to children?
  6. Without court orders, what can parents do unilaterally? For example, can they take a child abroad?
  7. Is there a presumption of an equal division of time between separating or divorcing parents?
  8. Are unmarried parents treated in the same way as married parents when the court makes orders on separation or divorce?
  9. Is a welfare report prepared by an independent professional or is the decision taken by the Judge alone? If so, does the child meet the Judge?
  10. Is there separate representation for children in your jurisdiction?
  11. What methods of dispute resolution are available to resolve disputes relating to children?

 

 

 

1. Explain what rights of custody both parents have in your jurisdiction whether (a) married, or (b) unmarried?

There is no difference between married and unmarried parents in respect of their rights of custody.

 

2. At what age are children considered adults by the court?

The Women’s Charter defines a “minor” as a person who is below the age of 21 years, and subject to child custody orders. However, a child who has attained 18 years of age but is below 21 years old would not be considered to be a minor in relation to any legal proceeding or action in which, by virtue of s 36 of the Civil Law Act, he may, in his own name and without a litigation representative, bring, defend, conduct or intervene in as if he were of full age (r 3(4), Family Justice Rules).

 

3. What is the duration of children orders (up to the age of 16 or 18 or otherwise)?

Child custody orders last until the child is 21 years of age.

 

4. What orders can the court make in relation to children? Does the court automatically make orders in relation to child arrangements in the event of divorce?

The court has to make orders in respect of “custody”, “care and control” and “access” under the Women’s Charter in the event of

divorce. The court has the power to place a child in the custody of either parent or (in exceptional circumstances) a relative (ss 125, Women’s Charter). The person given “custody” has decision-making control and responsibility over the upbringing, education, health and religion of the child (ss 126(1), (2), Women’s Charter). The Court of Appeal has emphasised that parenthood is a lifelong responsibility and endorsed the idea of joint parental responsibility, even where there is acrimony between the parents (CX v CY [2005] 3 SLR 690), by way of joint or no custody orders. Courts may order sole custody in exceptional circumstances, e.g. where one parent physically, sexually or emotionally abuses the child. The parent with “care and control” has the right to take care of the child and to make the day-to-day decisions concerning the child’s upbringing and welfare (CX v CY ). This right naturally belongs to the parent with whom the child lives (AQL v AQM [2012] 1 SLR 840). Orders for shared care and control are rarer in Singapore on account of various reasons, e.g. due to the logistical difficulties, that it may be disruptive and the parents have markedly different parenting styles (AQL v AQM). In deciding which parent should be given care and control of the children, the following are some trends which have emerged from local case law:

■ A young child requires a mother’s daily care (Soon Peck Wah v Woon Che Chye [1997] 3 SLR(R) 430 read with CX v CY ).

■ There is a preference towards preserving the status quo and continuity of living conditions (Wong Phila Mae v Shaw Harold [1991] 1 SLR(R) 680).

■ Siblings should not be separated (Kim Chun Ahe v Ng Siew Kee [2002] SGDC 276).

Lastly, the court usually grants “access” to the parent who does not have care and control of the child (AQL v AQM) to have regular contact with the child.

 

5. What factors does the court consider when making orders in relation to children?

Please see question 4 above.

 

6. Without court orders, what can parents do unilaterally? For example, can they take a child abroad?

Where a custody, or care and control order is in force, unless the trip is for a period of less than one month, the child may not be taken out of Singapore without the other parent’s written consent or with the leave of the court (ss 126 (4), (5), Women’s Charter).

 

7. Is there a presumption of an equal division of time between separating or divorcing parents?

There is no presumption of equal division of time. Ultimately, the court looks at the best interests of the child to determine the optimal arrangement. Please see question 4 above.

 

8. Are unmarried parents treated in the same way as married parents when the court makes orders on separation or divorce?

Whilst the procedure for applying for custody, care and control is different under the Guardianship of Infants Act for unmarried parents and under the Women’s Charter for married parents, the courts treat unmarried parents and married parents in the same way.

9. Is a welfare report prepared by an independent professional or is the decision taken by the Judge alone? If so, does the child meet the Judge?

The decision is ultimately taken by the Judge. However, the Judge may (via an application by a party or otherwise) order the production of reports such as a Social Welfare Report, Custody Evaluation Report, Access Evaluation Report, Special Issues Report, etc. by professionals from the appropriate disciplines within the Ministry of Social and Family Development and various other government agencies (s 28, Family Justice Act; rr 35, 36, Family Justice Rules; AZB v AZC [2016] SGHCF 1). The Judge may still interview a child after he/she receives the reports or expert evidence as these avenues are not mutually exclusive (AZB v AZC).

 

10. Is there separate representation for children in your jurisdiction?

Yes, the court may (via an application by a party or otherwise), if it is in the best interests of the child to do so, appoint a child representative for a child for any action involving the child or the custody or welfare of the child (r 30, Family Justice Rules).

 

 

11. What methods of dispute resolution are available to resolve disputes relating to children?

Please see this article tackling the financial aspect of divorce.