Custody

This article sets out the relevant considerations involved in an application for custody, including the types of evidence to be set out in the affidavit, and the types of reports which may be ordered.

Relevant Provisions and Mode of Commencement

The Women’s Charter (Cap 353) and the Guardianship of Infants Act (Cap 122) contain the relevant legislation for issues pertaining to custody, care and control of, and access to children.

The applications are made to the Family Court of Singapore and commenced in the following modes:

1   As an interim application by way of a summons filed under a divorce petition.

2   As an interim application by way of a special pre-trial conference originating from a divorce petition.

3   As a main action by way of an originating summons.

4   As one of the ancillary matters after the grant of a decree nisi.

It may also be possible to make an oral application for interim access at a pre-trial conference or ancillary matters pre-trial conference fixed for the divorce petition, provided that parties have agreed on the terms of the interim access orders to be made and/or the court at the pre-trial conference is prepared to hear the matter.

Definition of Custody

Custody is a legal concept.

Four different types of custody orders may be made:

1   Sole custody order. The custodial parent may make major decisions for the child without the agreement of the other parent.
 

2   Joint custody order. Both parents must make major decisions for the child jointly – ie they must agree on the decisions which are made. In the absence of agreement, regretfully, either parent will have to apply to court for a determination of the disputed issues.

3   Hybrid order. This is a sole custody order but includes an order that the custodial parent must consult (or even obtain the consent of) the non-custodial parent when making decisions on specified matters, for example, choice of school, choice of course in school and so on.

4   Split custody order. This is when the custody of one or more siblings is granted to one parent and the custody of the other siblings is granted to the other parent. As a general rule, siblings should be cared for by the same parent. If a spilt custody order is sought, then the parents must file affidavits in support of such a split custody order and explain how this would be in the best interests of the children.

The three main areas of major decision making are:

1   Medical. This includes decisions on whether the child is to be hospitalised, whether a non-emergency surgical procedure is to be performed on the child.

2   Education. This involves issues such as the choice of school, choice of enrichment classes, choice of course in school, choice of subjects, whether the child is to attend a particular school trip or outing, or tuition.
 

3   Religion. This involves the religious instruction of the child, attendance at places of worship, undergoing religious ceremonies, etc.

Custody is different from the issue of care and control. Care and control means with which parent the child lives on a day-to-day basis. The non-custodial parent who does not have care and control of the child will have access to the child. There is also a situation in which care and control of children is split, in much the same way as there is a split custody order, ie when the siblings live with different parents.

Access

Basic principle

The starting point is a presumption that the child would be able to have access to the non-custodial parent as such access would be beneficial for the child. The issue then is the quantum of access.

Quantum of access

This is dependent on various factors, including but not limited to:

1   The child’s needs.
 

2   The child’s wishes.

3   The non-custodial parent’s previous contact with the child.

4   The history of the relationship between the child and the non-custodial parent.

Types of access orders

Access orders are generally unsupervised, ie the non-custodial parent will be able to spend time on his own with the child without any third party monitoring the access.

If access is to be supervised or is with conditions, then one must understand the purpose of supervised access order in order to decide what would be the most appropriate terms to include in the order.

Is it to:

1   protect the child from possible abuse, whether physical or emotional;

2   assess the relationship of the non-custodial parent with the child, especially if contact has been infrequent; or

3   improve the relationship between the child and the non-custodial parent?

Access periods

Access periods include:

1   Weekday access. This is usually mid-week for a few hours and would usually be subject to the child’s school schedule or other activities, eg tuition.

2   Weekend access. This may include overnight access and would also have to take into account the child’s school schedule and other activities.

3   Public holiday access. Parties often come to an arrangement where each parent spends alternate public holidays with the child. Certain public holidays may be more significant to parties, for example, Lunar New Year for Chinese parties or Deepavali for Indian parties. Special arrangements can be made for such significant public holidays for example, if one parent has reunion dinner on Lunar New Year eve with the child, then the other parent has the child with him/her on the first day of Lunar Year and the first parent then has the child for the second day of Lunar New Year. This arrangement can then be alternated for the next year.

4   School holiday access. There are four main school holidays. These are:

a   one-week March school holidays;

b   one-week September school holidays;

c   four-week June school holidays; and

d   five-and-a-half-week November/December school holidays.

5   Other school holidays. These are days in which the children do not need to attend school and which are not gazetted public holidays, for example Children’s Day, Teachers’ Day, Youth Day and PSLE marking day.

6   Other special occasions. For example:

a   Father’s Day.

b   Mother’s Day.

c   Birthdays of the children or the parents.

d   Access for the purpose of attending a relative’s funeral or a wedding, etc.

Taking the child out of jurisdiction

When an order for custody is in force, no person shall take the child who is a subject of the custody order out of Singapore except with the written consent of both parents or the leave of court. The only exception to this is if it is the custodial parent, or if the non-custodial parent has the written consent of the custodial parent, who takes the child out of Singapore. In any event, it must be for a period of less than one month. This is set out in s 126(3) and (4) of the Women’s Charter (Cap 353).

If the Family Court usually allows the child to be taken out of jurisdiction, it will usually require the parent taking the child out of the jurisdiction to provide the following:

1   Identity of person(s) travelling with the child other than the parent.

2   Itinerary of trip proposed to be taken.

3   Contact number for other parent to contact the child.

4   Accommodation details.

Other access details

Parents should work out issues such as:

1   Handover of the child. For example, the venue and the time for handover and the parties to be present at the handover.

2   Priority of ranking of access. For example, if the child’s birthday is to be celebrated with the mother and this coincides with the father’s public holiday access, who then should the child be with?

The Welfare Principle

What is the welfare principle?

In any proceedings before any court where the custody or upbringing of a child is in question, the court is asked to regard the welfare of the child as the first and paramount consideration.

The welfare of the child is not to be measured in monetary terms. It includes the child’s moral and religious welfare, his physical well being, ties of affection, his happiness, comfort and security.

The factors to consider in determining welfare of the child

These factors are not exhaustive and include:

1   continuity of care given to the child;

2   the child’s sense of security;

3   the child’s own wishes about who he should live with;

4   the parents’ wishes;

5   the age of the child;

6   the race and religion of the child;

7   the race and religion of the parents;

8   material circumstances of the parents; and

9   that siblings should not be separated.

Evidence before the Court

The evidence before the court is set out in supporting affidavits to the custody and/or access applications.

What to set out in affidavit

The following should be set out in the supporting affidavit:

1   Reasons why the parent should have custody, care and control of the child.

2   Present care arrangements for the child.

3   Future care arrangements for the child.

4   Access the custodial parent would be willing to offer the non-custodial parent.

5   Access to him or her sought by the parent if custody is not granted.

Language and style of affidavits

Parties should avoid rhetoric such as ‘I have shown time and again that he has lied over and over in his various affidavits’ or ‘He is a liar and has no qualms in lying under oath’.

Keep the language and style plain and direct. The deponent should speak like a normal person instead of using bombastic words such as ‘reprehensible conduct’, ‘cavalier attitude’ or ‘his lackadaisical and nonchalant attitude towards the children’, etc.

Try not to make your submissions in the affidavit. The deponent sets out the facts, not the law. Avoid phrases such as ‘It is my legal entitlement to have access’ or ‘It is trite law that I have half the school holidays’.

Exhibits in affidavits¹

These should be paginated properly. The exhibit should also be adequately explained in the text of the affidavit. For example, if it is a schedule of the children’s school activities during the weekend, the text of the affidavit should summarise their non-available times 
for access.

Children’s affidavits – not to be filed

Children should not file affidavits. It puts them in the middle of the custody battle and goes against the basic principle of their welfare being paramount. If the child needs to be heard, the Family Court has court counsellors and the judges can also arrange child interviews.

Welfare Reports

Types of reports

In custody and access disputes, the following reports may be ordered:

1   Social Welfare Report (‘SWR’)

2   Custody Evaluation Report (‘CER’) or Access Evaluation Report (‘AER’)

3   Assisted Access/Transfer Report (‘AATR’)

4   Child Guidance Clinic Report (‘CGCR’)

5   Project Contact Report (‘PCR’)

When ordered

These reports are usually ordered either by the Deputy Registrar at a pre-trial conference or at a mediation session, or by a District Judge hearing the ancillary matters or originating summons, or by a District Judge hearing interlocutory applications for custody and access.

Except for the CGCR and PCR, for purposes of the other reports, the court counsellor or social welfare officer of MCYS will interview the parents and/or any other interested parties such as a significant third party, grandparents and relatives. If the welfare officer is of the view that the child is old enough to be interviewed, the welfare officer will also speak to the child as well as observe the child’s relationship through interaction with the parties involved. Home visits are also conducted if deemed necessary for SWR.

Counselling and Mediation at the Family Court

The Family Court provides free mediation and counselling services to help parties to resolve their disputes, including their custody and access disputes.

Counselling

Counselling is conducted by Family Court counsellors of the Family and Juvenile Justice Centre. Counselling can be voluntary in nature or it can be directed by the Family Court judge.

There are three types of counselling in relation to custody and access disputes:

1   Conciliation access counselling on custody and parties involved in custody/access disputes are usually directed to go for counselling with their children by the Pre-Trial Conference Deputy Registrar (‘PTC DR’) or by the court. The mediator will assess if the custody and access issues can be resolved amicably with the counsellor’s help. Do note that even if the parties reach an agreement during the counselling session, this is not a court order until it is recorded as such before a District Judge. The notes of the counsellor are confidential and will not be shown to the parties, their counsel, nor the judge hearing the ancillary matters/originating summons, though they may be seen by the PTC DR or the court mediator, who may suggest the best way to resolve the parties’ disputes, based on their perusal of the counsellor’s notes.

2   Counselling for the purpose of preparing a report, namely the CER or the AER.

3   Support counselling for children affected or traumatised by the divorce proceedings.

Mediation

The Mediation process is an alternative to litigation to encourage an amicable resolution of contested issues. Both parties go before a neutral third party who is usually a Family Court judge. Parties discuss the contested issues and try to find common ground to reach agreement on as many issues as possible.

If the custody of, or access to, the child or children are in dispute, the court mediator may ask the following questions in order to ascertain the views of both parents, to see if both parents are capable of fulfilling their responsibilities to the child, and to gauge what the most secure and stable arrangement for the child would be:

1   Do you want to have care and control (ie the child lives with you and you are the child’s main care-giver) or only access to your child?

2   Who has been the main care-giver for most of the child’s life?

3   Who is the current care-giver? Who is the child close to?

4   What is the child’s daily routine? What are your working hours or regular schedule?

5   What is the child’s favourite activity and what do you talk about or do with your child?

6   How is the child’s relationship with you? Are you in a relationship with a third party? If so, what is the child’s relationship with the third party?

7   What care arrangement will you make if you have care and control?

8   If you only want access, what is the duration of access you wish to have?

9   If you have care and control, what type of access are you prepared to give?

The court mediator may suggest different options to resolve the custody and access dispute, based on the information obtained from the parties.

See also Family Court’s information pamphlets ‘Why Do I Have to See a Counsellor?’ and ‘Mediation and You’.

Court Interviews

The Family Court judge sometimes interviews the child in order to ascertain the child’s wishes in a contested custody dispute. This is usually ordered at the hearing of the ancillary matters or the originating summons for custody and access. It is important that the parents do not alarm the child about the court interview by putting pressure on the child, for example, by telling the child what to say to the Family Court judge. Parents should behave as normally as possible before and after the child is interviewed. Parents must bear in mind that the welfare of the child being of paramount importance, the child must not be made to feel as if he or she is in the middle of a tug of war between the two parents.

The child’s wish is one of many factors the Family Court judge considers in making a decision on custody and access. The court interview is not the sole determining factor in a custody and access dispute.

The Role of Child Psychiatrists

Custody and access disputes in court

In highly contentious custody and/or access disputes in court, parents may sometimes appoint mental health or social work professionals to examine or assess the child, for the purposes of preparing a report to the court to support their respective cases.

Safeguarding children from excessive examination

Under the Women’s Charter (Matrimonial Proceedings) Rules (1997 version) and the Women’s Charter (Matrimonial Proceedings) Rules 2003 (pre-30 April 2005 version), there were no legal provisions governing the examination and/or assessment of children by a mental health or social work professional (‘the expert’) appointed by the parties for the purposes of preparing custody and access evaluation reports (‘custody/access reports’) to be used in contested custody and access proceedings. There was therefore no safeguard against a child being made to undergo examination by numerous psychiatrists, psychologists and other medical experts by the parties. This is not in the child’s best interests.

Such a safeguard has been introduced in the form of Rule 26A (Examination of children) of the Women’s Charter (Matrimonial Proceedings) Rules 2003 (‘the Rules’) (2005 version). Rule 26A was introduced together with various other amendments to the Rules (‘the 2005 amendments’). The 2005 amendments all took effect from 30 April 2005. They apply to all divorce proceedings, whether filed before or after 30 April 2005. The 2005 amendments thus affect all divorce proceedings, even pre-EFS files.

New legal provisions – court must give permission for child to be examined to prepare a custody/access report before report can be used in court

Essentially, under Rule 26A (and Practice Direction No 2 of 2005 [‘the PD’],¹ which accompanies the 2005 amendments), any party who wants to send the child for examination in order to prepare a custody/access report must apply for the court’s leave (ie permission) to do so. A custody/access report prepared pursuant to an unauthorised examination cannot be used without the court’s leave.

Orders that will be made by the court at hearing to decide whether the child may be examined

At the hearing of the leave application, the court will have the opportunity to scrutinise the qualifications of the expert sought to be appointed, and to consider the purpose and necessity of the custody/access report. The court may disallow any expert to be appointed at all. Alternatively, it may appoint one expert and specify that that expert is the sole expert who is allowed to examine the child for the purposes of preparing a custody/access report for use in court.

If the court allows the child to be examined by an expert to prepare a custody/access report, the court will make orders on matters such as:

1   what issues the expert is expected to address in the report;

2   who is to bear the costs of the report;

3   what documents the expert is to be furnished with, who the expert is allowed/supposed to interview in order to prepare the report; and

4   when the report must be furnished, and to whom.

Expert to be furnished with court orders and other documents

The appointed expert will then be sent:

1   a standard letter by one of the parties to brief him on the case. The wording of the standard letter will have been approved by the court, and will contain information on the various orders made by the court;

2   information on how to contact the various parties he is supposed to interview; and

3   various documents to read, including a copy of the orders made by the court.

Summary – what the lawyer should do

If your client wants to bring the child to see a psychiatrist or other mental health or social work professional, ascertain from him whether it is for the purpose of preparing a report for use in custody and access proceedings arising from divorce proceedings (‘custody/access report’).

If it is, then you should advise him that the custody/access report can only be used in court if the court has first given leave for the child to be examined for this purpose. Your client must make the necessary application in court. You must also ascertain from the expert that your client wishes to appoint:

1   what his charges are;

2   how soon he would be able to interview the parties and write the report; and

3   what his qualifications are.

It is also important that your client thinks through and is able to inform the court of his position on all the issues set out above.

If the child in question is already the patient of a particular expert and has seen him for one or more sessions, and your client wishes that expert to prepare a custody/access report, you should nonetheless also inform the client that under the law, the custody/access report can only be used in court if the court has given leave for the child to be examined for this purpose. The party must make the necessary application in court first.

Making the application

The application to court for leave for the child to be examined by an expert for the purposes of preparing a custody/access report must be in standard form. A draft letter of instruction to the expert (also in standard form) must be annexed to the application. The standard forms can be found in Practice Direction No 2 of 2005 (Women’s Charter (Matrimonial Proceedings) (Amendment) Rules 2005).

Enforcement of Orders

The most common problem faced by the non-custodial parent is in respect to exercising of access.

Orders for access

Once an order is made for access, it takes effect forthwith unless specific provisions as to the time for access to begin are prescribed in the order.

If the non-custodial parent encounters problems with access, his remedies include:

1   Filing an application to request an assisted transfer or to specify venue of handover.

2   Commencing committal proceedings if he takes the view that the access is being deliberately obstructed.

Breach of access order

In the event that the non-custodial parent refuses and/or neglects to bring the child back after specified times/days of access, the custodial parent can:

1   Obtain an order for the child to be returned forthwith and a restraining order against the non-custodial parent from having access to the child outside specified access times/days.
 

2   Obtain an order suspending access. This is extremely punitive in nature and the court will only order this under the most stringent of conditions, for example, recalcitrant conduct and continual abuse of the orders for access.

3   Commence committal proceedings as the non-custodial parent is in contempt of a court order.

Mirror orders

For cross jurisdictional marriages ending in divorce, the parents may obtain mirror orders in that he/she obtains a similar order, or registers the order obtained in Singapore, in another jurisdiction which is relevant to parties. For example, if a mother from a foreign country is given an order for custody of the children by the Singapore court, with the Singapore father being given access orders, either party may apply to the foreign court for similar orders or register the Singapore orders in that foreign country, as appropriate.

Lim Hui Min⁴

Ministry of Community Development, Youth and Sports

Koh Geok Jen and Raymond Yeo

Jen Koh & Partners

Notes

1   Extracted from ‘Materials for Family Advocacy Talk’ by former District Judge Lim Hui Min, May 2004.

2   See former District Judge Lim Hui Min’s article ‘Reports in Custody and Access Disputes – When, Why and What are they?’ Singapore Law Gazette, April 2004 issue.

3   The PD is issued by the court to set out guidelines on how people are to comply with the 2005 amendments.

4   The writer is a former District Judge.