In Personam: A Child Who Belongs A Child Who Belongs | In Personam

In Personam

by Choo Dee Wei
Published January 1, 2016

A Child Who Belongs

Custody of children in a divorce scenario.

Jimmy is 6 years old. He is happy. His dad recently bought a Star Wars lego set while his mum took him to Lego Land last week. He could not believe it. Just last month, dad and mum were yelling at each other daily. So much so that he was scared to venture even out of his own room.

Unbeknownst to Jimmy, both mum and dad have already sought for divorce and both want custody of Jimmy.

In June last year, this author wrote about divorces. What happens then when children (such as Jimmy) are involved? It adds complexities and frustration to the already precarious situation. A child is not an asset to be possessed. He / She is a living being and regardless of age, a divorce will have an impact on the child’s psyche.

However children unwittingly become pawns in tussles between father and mother. It is not always but it happens. It can be by words such as badmouthing and revealing secrets of the other parent to the child. It can be by acts such as lavishing the child with presents and trips in order to appear like the cool and fun parent.

Under the Law Reform (Marriage and Divorce) Act 1976 (“the Act”), a child is someone who is below 18 years of age.

The Court may at any time place the child in the custody of either the father or the mother. In exceptional circumstances where it is undesirable that the child be entrusted to either parent, the child be may be placed in custody of any other relative of the child or any association (which includes the child welfare department) or any other suitable person.

When the Court decides on who should take custody of the child, the most important consideration shall be the welfare of the child. Subject to this paramount consideration, the Court would also take into account:-

  1. the wishes of the parents; and

  2. the wishes of the child (provided the child is of an age to express an independent opinion).

Jimmy may indicate which parent he wishes to follow. That wish would be considered only if he bases it on matters such as that parent provides a good home or school and not that the parent buys expensive toys or allows him eat as much fast food as he desires.

There are several important and interesting aspects to note from the Act. One of which is the rebuttable presumption that it is for the good of the child (below 7 years old) to be with his / her mother. However, this presumption is not absolute and the Court shall have regard to the undesirability of disturbing the life of the child by changes of custody. So for example, if the child has been living with the father, and there are no adverse conditions, that presumption would not be applicable.

Where there are 2 or more children from a marriage, the Court is not bound to place all children with one parent. The Court will consider the welfare of each child independently.

That is not to say that there will be a blanket custody given. Custody of children orders usually have conditions attached to it. These conditions include the place of where the child is to reside, manner of education and visitation rights.

While parents battle it out in custody to ‘win’ the children, in reality there is no victory. The custody war would see each parent reveal the ugly side of the other. Broken promises, tempers, intimate secrets would suddenly find themselves spread out in court papers. In the heart of this cyclone of anger, accusations and resentment, sits the child. The child who asked not to be there.