So, Who Actually “Gets” the Children?

There isn’t a simple answer because Singapore family law separates parental responsibility into different areas.

The three terms parents need to understand are:

Custody — who makes the important, long-term decisions concerning the child.

Care and control — which parent is responsible for the child’s day-to-day care and, generally, which parent the child lives with.

Access — the time the child spends with the parent who does not have care and control.

This distinction is important.

A parent may, for example, share custody of the children while only one parent has care and control, with the other parent having access.

The Singapore Courts describe custody as involving major decisions such as education and major healthcare issues, while care and control concerns where the child primarily lives and day-to-day decisions. The parent without care and control will ordinarily spend time with the child through access arrangements.

Does the Mother Automatically Get the Children?

No.

There is no rule under Singapore law that children automatically live with their mother following a divorce.

The central consideration is the best interests and welfare of the child.

Section 125 of the Women’s Charter 1961 provides that when deciding in whose custody or care and control a child should be placed, the child’s welfare is the paramount consideration. 

This means the question is not simply:

“Which parent wants the child more?”

It is:

“What arrangement is in this particular child’s welfare?”

That requires the court to consider the overall circumstances of the family and child.

Can a Father Get Care and Control of the Children?

Yes.

The father and the mother have equal rights over the child. A father can seek care and control just as a mother can.

The Court’s task is not to reward one parent or punish the other for what happened during the marriage. Its focus when making parenting orders is the child’s welfare.

Where parents disagree, the Court may have to consider the child’s existing arrangements and needs, the relationship between the child and each parent, practical caregiving arrangements and the ability of the proposed arrangement to provide the child with appropriate stability and care.

There is no one size fits all. The individual circumstances matter.

What Is Custody?

Custody is primarily about major decision-making.

These can include important questions concerning matters such as:

• education;
• major medical treatment;
• religion; and
• other significant aspects of the child’s upbringing.

In most cases, joint custody is generally ordered, meaning both parents are expected to consult each other and work together and co-parent on major issues relating to the child.

This is very different from saying that the child must spend exactly half of the week with each parent.

What Is Care and Control?

This is often what parents really mean when they ask:

“Who gets the children?”

Care and control relates to the child’s everyday life.

The parent with care and control will generally be the parent with whom the child primarily lives and who makes the ordinary day-to-day decisions concerning the child’s upbringing and welfare.

So it is entirely possible for parents to have:

Joint custody + Mother has care and control + Father has access

or:

Joint custody + Father has care and control + Mother has access.

Joint custody does not tell you where the child will primarily live.

Does Joint Custody Mean the Children Spend 50% of Their Time With Each Parent?

No. This is a common misunderstanding.

Joint custody concerns joint responsibility for major decisions.

A 50/50 or near-equal living arrangement is more closely related to shared care and control.

In a shared care and control arrangement, a child may spend an almost-equal amount of time living with each parent, with each parent making the everyday decisions while the child is in their care.

But shared care and control is not automatic.

The Singapore Courts have said there is neither a rule against shared care and control nor a presumption that it will always be best for the child.

Factors may include the child’s age and needs, the child’s relationship with each parent, whether the parents can cooperate, and whether moving between two homes works for that particular child.

What Happens to the Parent Who Does Not Have Care and Control?

The other parent will generally be given access to the child.

Access arrangements can vary significantly between families.

They may cover weekdays, weekends, school holidays, public holidays and, where appropriate, overseas holiday access.

The objective should not be to determine which parent has “won”.

The focus remains on maintaining arrangements that serve the child’s welfare.

Can the Child Choose Which Parent to Live With?

A child’s views can matter, but the child does not simply make the decision.

Under Section 125 of the Women’s Charter, the Court may have regard to the child’s wishes where the child is of an age to express an independent opinion.

There is an important difference between:

allowing a child’s voice to be heard

and

making the child responsible for choosing between Mum and Dad.

The child’s welfare remains the Court’s paramount consideration.

Depending on the circumstances, the Court may also have regard to advice from someone trained or experienced in child welfare.

What If Both Parents Want the Child to Live With Them?

If parents cannot agree on care and control, the Court may ultimately have to decide.

The question is not necessarily which parent can demonstrate that the other parent is imperfect.

Rather, each proposed parenting arrangement must be considered from the perspective of the child’s welfare.

This is one reason custody disputes can become particularly difficult. Parents understandably approach the issue with strong emotions, but the legal focus is on the child.

The Singapore Courts have also cautioned that applications concerning custody, care and control and access should not be used as tools to control or hurt the other spouse.

Can Custody or Care Arrangements Be Changed Later?

Yes, in appropriate circumstances.

Children grow, family circumstances change and an arrangement that worked when a child was five may not necessarily remain suitable years later.

Section 128 of the Women’s Charter provides for the variation of orders relating to custody, care and control and access in applicable circumstances.

However, the Court also recognises the importance of stability in a child’s post-divorce routine. A request for change therefore needs to be considered against the child’s welfare and the circumstances that have developed since the existing order was made.

Don’t Treat Child Custody as a Question of Winning or Losing

Parents sometimes approach divorce believing that obtaining “custody” means winning the children.

That can lead to unnecessary conflict.

A parent may have joint custody while not having care and control. Another parent may have care and control while still needing to consult the other parent on important decisions.

The better questions are:

Where will the child live?

Who will make everyday decisions?

How will major decisions be made?

How much time will the child spend with each parent?

And, most importantly, what arrangement best serves this child’s welfare?

Once those questions are separated, the terminology of custody, care and control and access becomes much easier to understand.

Before You Agree to Child Custody Terms

Parenting arrangements agreed during a divorce can affect where your children live, how important decisions are made and the time each parent spends with them.

It is therefore worth understanding exactly what terms such as joint custody, sole custody, care and control, shared care and control and access mean before agreeing to them.

At Gloria James-Civetta & Co, our family lawyers have experience advising and representing parents in child custody, care and control and access matters, including contested parenting disputes.

If you are uncertain about the parenting arrangements being proposed in your divorce, obtaining advice early can help you understand both the legal position and the practical implications for you and your children.

Frequently Asked Questions

Does joint custody mean my ex can decide when I see my child?

No. Custody concerns major decisions about the child’s upbringing. Access orders provide for when the non-care and control parent sees the child.

Can both parents have care and control?

Yes. The Court can order shared care and control where this is appropriate for the child, but there is no presumption that an equal-time arrangement is always in a child’s welfare.

Does earning more money mean I am more likely to get care and control?

Not necessarily. The Court’s paramount consideration when determining care and control is the child’s welfare, not simply which parent earns the higher income and can provide for the child financially.

Can a custody arrangement be changed after divorce?

Yes, in appropriate circumstances. Parenting orders may be varied where the legal requirements are met and a change is justified, with the child’s welfare remaining central to the decision.

What if my ex and I can agree about the children?

Parents can agree on proposed arrangements concerning custody, care and control and access as part of their divorce. These are among the children’s care arrangements that must be addressed in divorce proceedings.