Children: Custody, Care & Control and Access

Here are some things you should know about how parents’ rights to their children are determined:

Who is considered a “Child”?

• A “child” is defined by the Women’s Charter as a child of the marriage whom is below 21 years of age

What do “Custody”, “Care and Control” and “Access” mean?

• Custody refers to a parent’s right to make important / key decisions over major aspects of the child’s upbringing and welfare, such as those affecting the following:
  • Religion e.g. whether the child should be receive religious instruction, attend a place of worship or participate in religious activities / ceremonies
  • Education e.g. whether the child should attend a particular school or enrichment class, whether the child should participate in a particular co­curricular or extra­curricular activity
  • Medical / health treatment e.g. whether the child should receive / undergo a particular type of medical treatment
• Care and Control refers a parent’s right to have authority and responsibility over the day­to­day matters of the child (i.e. caring for and supervising the child on a day­to­day basis)
  • The child will reside with the parent who is awarded with Care and Control of the child
  • Access refers to the periods during which the parent who does not have care and control of the child is granted time to spend with the child.
• Access refers to a parent’s right to have contact and physical access to the child
  • This is granted to the parent who does not have Care and Control of the child to ensure that that parent has sufficiently regular contact and adequate opportunities to develop and maintain a good parent­child relationship with the child
  • For example, a parent may be granted with day­time access to the child for a certain number days during the week and overnight access during the weekend

How is Custody determined?

• The welfare of the child is the paramount (i.e. most important) consideration
  • The child’s wishes and preferences may also be taken into consideration by the Court
    • The child’s wishes and preferences may also be taken into consideration by the Court
• Joint custody (i.e. custody shared by both parents) is often ordered because the Court generally believes that it is in the best interests of the child to have both parents in the child’s life
  • Although the Court generally prefers not to intervene unnecessarily in the parent­child relationship, joint custody ensures that both parents are able to continue to play a part in the child’s life
  • Joint custody also helps to remind both parents that they must be cooperative and consult each other in raising the child and not to exclude one another
• Sole custody ( i.e. custody granted to one parent) is rare and only ordered in exceptional circumstances such as the following:
  • Where one parent is clearly incapable of being responsible for the upbringing and welfare of the child
  • Where one parent has a track record of acting against the best interests and welfare of the child (e.g. physically abusing or neglecting the child)

How are Care and Control determined?

• The welfare of the child is the paramount consideration
  • The child’s wishes and preferences may also be taken into consideration by the Court
• It is common for one parent to be awarded with care and control and the other parent to be awarded with access
• Although shared care and control has occasionally been supported by the Court, this type of arrangement is rare / unusual because it tends to disrupt the child’s day­to­day routine
• General observations on how the Court determines which parent should be awarded with care and control:
  • If the child is young (and provided all other factors are equal), the Court will prefer to award care and control to the mother
  • The maternal bond between the mother and an infant / young child is a key consideration
  • The Court prefers to preserve the status quo (i.e. maintain the current / existing continuity of living arrangements)
  • Siblings should not be separated
  • The Court will consider other relevant factors which may justify one parent being preferred over the other parent:
    • Bad habits e.g. gambling
    • Illness e.g. depression
    • Time already spent bonding with child
    • Availability / working hours of the parent
    • Focus or preoccupation with a parent’s career
    • Whether a parent has shown interest in the child’s welfare and well­being (e.g. education, health)

How is Access determined?

• The welfare of the child is the paramount consideration
  • The child’s wishes and preferences may also be taken into consideration by the Court
• The Court also aims to provide the parent who does not have Care and Control of the child with sufficiently regular contact and adequate opportunities to develop and maintain a good parent­child relationship with the child and so that the child is not deprived of contact with either parent
• The Court may restrict or deny access to a parent if it is not in the best interests of the child
• General observations on how the Court determines which parent should be awarded with care and control:
  • The terms of access should be fair to all parties as much as possible (e.g. considering that the parent without care and control of the child will already be deprived of a substantial amount of contact with the child because the child does not reside with that parent)
  • Parents should discuss and agree (and compromise, if necessary) on an arrangement for access (e.g. weekday access, weekend access, overnight access, overseas access, public / school holiday access) based on what is fair, reasonable and logistically feasible
  • If the parents are unable to agree on the terms of access, the Court will decide after considering the parents’ respective reasons