THE NEXT STEP IN POST-DIVORCE PARENTING1

Citation(2005) 17 SAcLJ 648
Published date01 December 2005
Date01 December 2005

This article reviews the more recent cases on “custody” and “care and control”, including a recent Court of Appeal decision which marks a milestone in this area of law. It suggests that while the law can promote joint parenting, much more must be done to teach and support divorced parents in co-operating to raise their children. It is not the court’s role to assist parents to resolve their conflict over their children. Instead, the State must undertake this task by offering formal, non-judicial support for post-divorce parenting.

I. Applying the welfare principle

1 The law on custody of children is both simple and complex. It is simple in that there is one principle which governs all such proceedings. This is often called the “welfare principle” and in Singapore is expressed in the Guardianship of Infants Act2 as follows:3

Where in any proceedings before any court the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income thereof is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration …

2 The complexity in cases involving children lies in the difficult determination of what is in fact best for a child. The welfare principle is also entrenched in the Women’s Charter, the main statute governing family law in Singapore4 and is also reflected in the preamble to the United Nations Convention on the Rights of the Child (“UN CRC”).5 The preamble to the UN CRC states:

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding …

3 When the relationship of the parents breaks down, what laws are most conducive to the recognition and enforcement of such a right of a child to grow up in a loving and happy environment?

II. Family laws which facilitate the child’s welfare

4 Upon a divorce, children can no longer live with both parents. New arrangements must be made to enable them to be raised by their estranged parents. Which framework of laws is most conducive to achieving the child’s best interests?

A. Singapore

5 In Singapore, orders of “custody”, “care and control” and “access” may be obtained by parents in the courts.

6 Section 126 of the Women’s Charter6 provides that an order of custody entitles the person given custody to “decide all questions relating to the upbringing and education of the child”. It is fair to say that generally,7“custody” embodies the control over the important aspects of the child’s life, such as his or her education, health and religion. The occasions which call for decisions on such matters arise only once in a while, and certainly not on a daily basis.

7 An order of “care and control” gives the person control over the day-to-day matters of the child. For example, he or she can decide unilaterally whether the child should eat more vegetables on Tuesdays. The child resides with the parent given care and control of him or her. An order of “access” enables the parent without care and control of the child to spend time with the child, usually on a regular basis, such as one day during the weekends and part of a weekday or two.

8 The recent Court of Appeal decision in CX v CY (minor: custody and access)8 held that:9

“[C]ustody” is the package of residual rights that remains after the grant of a care and control order that dictates which parent shall be the daily caregiver of the child and with whom the child shall live. To put it simplistically, “care and control” concerns day-to-day decision-making, while residual “custody” concerns the long-term decision-making for the welfare of the child.

B. England and Australia

9 In other jurisdictions such as England and Australia, courts can make limited orders to organise the child’s living arrangements, such as residence orders and specific issues orders. The UK Law Commission’s10 recommendations that both parents should retain parental power to act for the benefit of the child (subject to any court orders on residence, contact or other specific issues) led to the abolition of the concept of “custody”. Australian law has also discarded the concept of custody. In 1996, the Family Law Reform Act 1995 came into force providing for “parenting orders” which cover issues concerning the child’s residence, contact between the child and parents and other specific issues.

10 Translated into the concepts familiar in Singapore law today, the English and Australian positions only permit orders of “care and control”, “access” and other specific orders but not “custody” orders. Parental authority over major aspects of the child’s life remains with both parents.

III. Court orders on custody, care and control, and access
A. No custody order

11 The court may award one parent “care and control” and the other parent “access” to the child while making no orders concerning custody. In such a case, the parent with care and control has the responsibility of managing the day-to-day affairs of the child while the other parent has contact time with the child in accordance with the access order. Since no

order of “custody” is made, both parents retain their parental authority and continue to be involved in making major decisions for the child. In Re G (guardianship of an infant),11 the High Court held that making no custody order best served the child’s interests as it enabled the child to retain the guidance of both parents in his life. The Court of Appeal in CX v CY clarified that:12

[T]he making of a “no custody order” should be seen as leaving the law on parenthood to govern the matter, as both parents continue to exercise joint custody over the child. Such an order also affirms the approach of the courts not to intervene unnecessarily in the parent-child relationship where there is no actual dispute between the parents over any serious matters relating to the child’s upbringing.

B. Joint custody order

12 It is also possible for a court to make care and control and access orders as well as an order of joint custody. The practical effect of making no custody order and an order of joint custody is nearly the same since in both cases, both parents retain control and responsibility over the major aspects of the child’s life, such as his education and upbringing. While both impose joint parental responsibility, a “joint custody order” is more appropriate than a “no custody order” where “there had been previous attempts by [one parent with care and control] to exclude the [other] from the child’s life altogether by denying him [or her] access rights”.13 In such a case, making a “joint custody order” instead of making a “no custody order”, sends “a signal to [one parent] that [he or] she should be more co-operative with the [other]”.14

C. Sole custody order

13 These can be contrasted with an order for sole custody. Where sole custody is granted to one parent, the other parent’s involvement in the important aspects of the child’s life is diminished by the order. Sole custody, if ordered, is usually given to the parent with care and control, while the other parent is left with access to the child and is deprived of practically all parental authority.

D. Common contests over children

14 When parties wrestle over their child, they generally desire the following:

(a) to have the child live with them (have care and control) or at least to spend as much time as possible with the child (have liberal access); and

(b) to have custody of the child, preferably sole custody in cases where there is acrimony between the parties.

15 Points (a) and (b) deal with two different concepts. One concerns “care and control” while the other concerns “custody”. The considerations to be taken into account in each issue should, therefore, also be distinguished. In the discussion below, “care and control” is first studied followed by an examination of “custody”.

IV. Determining “care and control” and “access”

16 In many disputes concerning children, parties fight to have their children live with them. They seek care and control of the children. “Care and control” only determines with whom the child should reside and be given authority over the day-to-day matters of the child. The other parent who does not have care and control will normally be given access to the child. The Court of Appeal in CX v CY suggested that:15

[T]he right to decide how a child should dress or travel to school, what sport he should take up or musical instrument he should play and similar ordinary day-to-day matters, resides with the parent who has care and control.

A. What considerations determine the parent who should have “care and control”?
(1) Gender of parent: Father or mother

17 Cases suggest that the gender of the parent may have some effect on the determination of this issue.

(a) The natural mother

18 In Soon Peck Wah v Woon Che Chye,16 the Court of Appeal held:17

All other things being equal, a very important factor to bear in mind was that we were dealing with an extremely young infant. We felt that the maternal bond between the [natural mother] and the infant was a pivotal consideration here. The bond between the natural mother and her child is one of the most unexplainable wonders of human nature. It should never be taken for granted or slighted. We have all heard of the story of the mother who fought a tiger with her bare hands to save her child from the ferocious beast. Such is the love and sacrifice of the maternal instinct. Since the beginning of civilisation to this age of consumer materialism, the mother’s love for her child remains just as strong and unchanging. This court would be doing a disservice to justice and humanity if it turned a blind eye to the most fundamental bond of mankind — between a mother and her child, by taking the...

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