In an earlier article entitled “Custody, Care and Control, Splitting the Baby King Solomon’s Way”, I have written about what are the factors the Court will consider when deciding which parent gets custody or care and control of a child.
In this one, we will explore in some details what kind of orders are generally given by the Court in a “custody battle” and what these orders mean.
Before we dwell into that, I would like to correct a general misconception that the Court “award children to parents”. This is not so. You may no longer be someone’s wife/ husband but you will always remain your child’s parent and will continue to share an equal responsibility for your child with your ex-spouse. Such responsibility does not change with your marital status.
What the Court decides are 2 aspects relating to the upbringing of the child.
The first is whether one or both parents should have custody of the children. The second is which parent has care and control of the children and the access terms for the parent who does not have care and control.
What is Custody?
Different jurisdictions use this term in slightly different ways. In the Singapore Courts, the term “custody” means the right to make major decisions on the welfare and upbringing of the children. The Court generally consider the following areas as major decision making:
1 Medical issues like whether the child is to be hospitalized or a particular surgery should be performed on the child.
2 Educational issues like 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 Religious issues like the religious instruction of the child, attendance at places of worship, undergoing religious ceremonies, etc.
In practice, the Court usually makes either one of the following orders when it comes to custody of children:
1 “Sole custody” order where the right is given to one parent to make major decisions for the child without the agreement of the other parent. These days, the Court who although may grant a sole custody order will sometimes also includes an order that the custodial parent must consult (or even obtain the consent of) the other parent when making decisions on specified matters, for example, choice of school, choice of course in school and so on.
2 “Joint custody” order: This is also the more common of the 2 orders. Here, both parents make major decisions for the child jointly – i.e. 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.
Although the Court is reluctant to do so, on very rare occasions, the Court may grant custody of different child to different parent. This is what is sometimes known as a “Split-Custody” order.
What is Care and Control?
Care and control is the right to have the children live with you, and to make everyday decisions about them. For practical reasons, care and control normally lies with one parent. The non-custodial parent who does not have care and control of the child will have access to the child. (I will not be discussing access terms in this article but in another one devoted only to access.)
Usually if the Court grants a split custody order for different siblings, it will also order for care and control of the children to be similarly split so the result is that siblings will live with different parents.
The Perennial Confusion
Bringing up a child is such a complex process that it is no wonder that many parents are confused as to what are day-to–day issues and what kind of matters become major decisions?
Things are made worse when 2 parents are fighting a very acrimonious divorce and have problems communicating with each other. In these situations, it sometimes appear that every kind of decision relating to the child can fall either way. For instance, if a child is allergic to peanut, is his day-to-day diet a medical issue or a major decision to be agreed upon by both parents?
Lawyers find themselves having to answer such questions from their feuding clients sometimes on a daily basis. In such cases, it is sometimes necessary and advisable to seek the Court’s specific orders spelling out in some detail, what kind of decisions require mutual consent and under what circumstances, the custodial parent can make the decision.
Even then, it is impossible for the Court to consider every single instance and parents are strongly advised to try and co-operate with each other when it comes to parenting the child. Remember that at the end of the day, it is the best interest of the child that everyone should be concerned with, not who has the last word.
“Since I don’t get custody of the children, why should I continue to maintain them?” or
“He did not pay me child support, why should I continue to let him see the kids?”
These are common remarks we lawyers hear from disgruntled ex-spouses.
The Court will remind that a parent’s duty to maintain his child remains until the child reaches adulthood whether or not he has custody. Similarly, a parent’s right to have access to his child is sacrosanct and will be jealously guarded by the Court. Only in very extreme circumstances will access be taken away from a parent e.g. violence or raped victims. In the case of alleged violence, the Court may still give supervised access.
We also need to be reminded that just because custodial rights are not given to one parent, it does not necessary mean that that parent is a bad one. It often just means that the other parent is a better one and the child is better off with him/her.
Sometimes, it just isn’t in the best interest nor practical for two badly feuding parents to have joint custody of the child. This is especially so when it appears to a child that that his/her parents are often quarrelling over her. This can lead to very bad psychological damage to the child.
But most importantly, we must always remember: “My child’s best interest comes first and all the unhappiness between me and my ex-spouse must come a distant second”