ANCILLARY MATTERS: CHILD CUSTODY, CARE AND CONTROL, AND ACCESS OF CHILDREN
This article will only apply to parties with children under 21 years old. The Court has repeatedly placed emphasis on the best interests of the welfare of the children. The children’s welfare is measured in terms monetary and physical comfort with the parent, the ties of affection with the parent, and the children’s moral and well-being.
A custody order determines which parent is to have authority to make the major long-term decisions for he children, e.g. religion, education, major healthcare issues.
In contrast, care and control is only given to one parent involved in the children’s daily matters, e.g. children’s dressing, travel routes, sports. Usually, the children will reside with the parent who has care and control. The other parent who does not have care and control will be given access to the children for certain periods.
Access to the other parent can be reasonable or liberal access, depending on the Court’s discretion. The Court will decide on what is considered fair and reasonable.
Types of custody orders
1. Joint custody order
This is the most common order given by the Court, as the Court places importance of the presence of both parents in the children’s lives. A joint custody order will allow both parents to decide the children’s major decisions. They have an equal authority in the upbringing of the children. This is made to promote joint parenting where parents will have to co-operate with one another.
2. Sole custody order
A sole custody order is only given in exceptional circumstances. This order is granted to only one parent who will be the sole parent to decide the children’s major decisions. This order is given where the relationship of the parents is such that cooperation is utterly impossible (even after mediation / counseling) and the lack of cooperation is harmful to the children. Additionally, this order may also be given where one of the parent has disqualified himself/herself by severe dereliction of parental responsibility e.g. physical, sexual or emotional abuse of the children.
Care and control
A care and control order determines which parent the children should continue to live with and to make the daily decisions for the children, such as the children’s dressing, the travel arrangements and the meals.
Generally, the Court will select the parent that is more capable of caring for the children to have care and control of the children. The mother is preferred in usual circumstances if both parents are equally capable and the children are young. Only in exceptional cases where the mother is found to be neglectful / abusive of the children, or if the children specifically voice out their preference, the father may be granted care and control of the children. Also, the Court will generally not split the siblings between parents.
An access order is granted to the parent that does not have care and control of the children. Access orders are generally unsupervised. This will allow the parent to spend quality time with the children without a 3rd party (i.e. a counselor) supervising the session. A supervised access order is only given where the child requires protection from potential emotional or physical abuse.
Other types of access orders are as follows:
1. Limited Access;
2. Staggered Access;
3. Overnight Access;
4. Public Holiday Access;
5. School Holiday Access.
The Court will ultimately take into account the best interests of the welfare of the child.
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