A long, long time ago, there were no Family Courts. King Solomon was often tasked with resolving the disputes of his subjects. His proverbial reputation as a wise and clever judge was derived from the way he resolved these disputes, especially his very first case.
In this particular dispute, two women who lived in the same house had given birth to sons within a few days of each other. Unfortunately, one of the babies died shortly after and both women claimed custody of the remaining child. King Solomon, knowing that a decision in favor of the wrong woman would mean complete devastation for the real mother, suggested that he divide the child and give each woman half.
It was then that the mother of the child, not wanting her child to die, pleaded with the king to spare the child, telling him that she would allow the other woman to raise him rather than have him die. The other woman claiming to be the mother, was not prepared to make such a sacrifice.
It was clear to the King then who the real mother was and he accordingly awarded custody of the child to her.
In his infinite wisdom, King Solomon, by making the apparently preposterous suggestion to split the baby, accomplished much more than just a compromise of the dispute. His method had revealed the litigants’ own motivations in pursuing custody of the child to both themselves and to him and with that knowledge, he was able to determine in whose hands would the child’s best interest be safeguarded.
In deciding custody, care and control issues, courts do try to determine the true intentions of the litigants as much as possible. In Singapore, these litigants are often the real mothers and fathers of the children. Unlike the days of Solomon, the courts today cannot really make outrageous and unworkable proposals just to test the parties’ intentions. How then do the courts decide?
The courts’ primary consideration in awarding ‘custody’, i.e. the right to make major decisions concerning the welfare and upbringing of the child and the ‘care and control’ of the child (i.e. the right to have the child live with a particular parent and to make day-to-day decisions concerning the child), is still ‘”the welfare of the child”. In determining the welfare or best interests of the child, the court will consider all of the following factors:-
- The emotional ties between the child and other family members in particular, sibling bond: The Court will generally not separate siblings as they can provide a measure of security and stability for each other when their parents live separately;
- The interest of the parents in the child and their attitudes toward the child; here, the courts look at the role each parent has played in the child’s life and the stability which each of them is able to offer the child. It should be noted however that adultery by itself will not disqualify a parent from getting custody or access;
- The desirability of a continuing and existing relationship as drastic changes are generally regarded as detrimental to the well being of a child, factors like whether the child has grown accustomed to his living environment or is attached to a care-giver are thus important considerations.
- The abuse of one parent by the other; and the conduct of the parties:
- The age of the child; where the child is still very young, the courts do generally prefer the child to be with his mother as she is often the primary care giver. This is of course not an absolute rule. In my career as a family lawyer, I have in fact successfully fought for care and control of very young children to be awarded to their fathers. I am also of the view and it is in fact a rapidly growing trend that fathers are as capable of being primary care givers to children as the mothers.
- The wishes of the parties including the child if the child is of an age where he can form independent views.
In short, the courts do not give custody to a parent only because the parent is the mother or the father of the child.
The courts will consider the child’s emotional ties or bonds with the person who has been the primary caregiver of the child. The primary caregiver is usually the one who attends to the child’s basic needs on a daily basis and this is often the parent with whom the child is living. It is a very important factor in determining custody issues.
The court will consider the conduct, marital status, income, social environment or lifestyle of a parent only if it does or may cause emotional or physical harm to the child.
Courts are reluctant to separate siblings.
The court may consider a child’s preference to live with a parent but does not have to follow the child’s wishes.
In deciding custody, a judge may rely on the testimony of expert witnesses, as well as other witnesses. Expert witnesses may be people such as psychologists, social workers, teachers or psychiatrists.
The court may decide not only custody, but also parenting time and child support.
The court may order that the child not be removed from the country without notice to the other parent.
In special circumstances, where there has been violence or abuse of the child, the court can order that parenting time be ‘supervised.’ This means that a designated third party, often a family friend or relative, must be present when the parent visits with the child. The court may also require that the parent receive counseling, or abstain from drugs or alcohol during the visit.
Only in extreme circumstances, where there is a danger to the child, will the court deny parenting time altogether.
It is now the trend for Singapore to award joint custody to both parents even though in some situations, the parents obviously do not get along.
A court order for custody may be changed later if it can be shown that there has been a substantial change of circumstances since the previous court order, and that the change would be in the best interests of the child.
Then and now
The courts want assurances that the parent whom they entrust the children with will ensure that the children’s welfare is his or her foremost concern, just like the real mother in Solomon’s court. Although it is not easy to tell, at first glance, which one of the parties will be more suitable as the primary caregiver of the children, the courts are no fools in this regard. They will very often be able to tell if you are fighting custody just to wrangle a better position for higher maintenance or a bigger share of the matrimonial assets or to spite the other party.
Having experienced civil practice in many aspects, the custody battles in my career are some of my most heart-wrenching fights. This is because the innocent parties, i.e. the children are often the victims of their parents’ wrath and fury.
Clearly these battles are not easy, especially on the conscience. I dare say therefore as lawyers, most of us are reluctant to represent parties whom we feel, are not putting their children’s welfare as their primary concern.
Ultimately, I too, believe as King Solomon: if you truly love your child, you will want to do what’s best for him/her. Sometimes, this may mean the painful acknowledgement that she/he is better off living with your spouse.