1. What factors will be considered by the Court in awarding custody of a child to either or both parties?
In all matters relating to children in family proceedings, the welfare of the child is the first and paramount consideration for the Court. While each case will depend on its own facts , the Court would take into account all relevant factors which include:
- the preservation of the status quo;
- the ages of the parents and child;
- the personality, capability and character of the parents;
- the financial resources of the parents;
- the physical and mental health of the parents and child;
- the accommodation available to the child;
- the child's own wishes and views, if any;
- the benefit of keeping the siblings together with one parent;
- the religion and culture of the family;
- professional reports such as medical, school, or court welfare officer's reports (e.g. about the child's family relationship, living conditions, mental or health elements, etc.).
Note that the aforesaid factors are just factors commonly considered by the Court, they are not exhaustive.
Upon hearing all the relevant evidence, the Court, bearing in mind that the interests and welfare of the child is of prime importance, would balance the factors against each other, depending on the circumstances of each case.
Some important factors are further elaborated below:
Many professionals especially child psychologists opined that it is in the best interests of a child, to avoid a disruption of the familiar life of a child.
If a child has already settled well with one of the parents and is used to and happy with his/her surroundings and lifestyle, the Court is unlikely to consider taking the child away from that parent unless there are other compelling reasons.
Naturally, a child will develop a strong bonding with his or her main caregiver. The child may be dealt with a blow, whether emotionally or otherwise, if he or she is separated from his or her close main carer or guardian suddenly. The damage done should not be under-estimated.
It is therefore considered desirable for a child to stay with the parent who has hitherto been his or her main caregiver, so as to maintain the status quo.
While it is an important factor, it should be noted that children's views are not overriding. The overriding factor is still the welfare and the interests of the child.
Child's view will generally be heard and considered by the Court, but the weight to be given to such views would depend on the age and the level of understanding of the child concerned. The wishes of older children will play a material part in deciding with whom their custody will be granted.
Any views and wishes of the children must be ascertained with great care. This is usually done by an appointed court welfare officer.
One should avoid creating an impression that they are being asked to make a choice between their beloved mother and father. This would pose a heavy emotional burden on the child.
Though it is rather common, it is wrong for either parent to attempt to exert influence on a child regarding his / her view. Children's wishes are usually best expressed through a court welfare officer.
Keeping siblings together
To avoid any emotional trauma, it is regarded as desirable that siblings, in particular those who are nearer in age, should be kept together rather than being split between their parents. It is only in rare circumstances which, if it is considered best to do so, that split orders would be made by the Court. Even so, every effort should be made by the parties to ensure that the siblings can see each other regularly. Again, the damage caused by the separation of siblings when they are young should not be under-estimated.
Age of the parties and the child
The age of the parents and the child are also a material factor to be considered. The Court is more likely to award custody of babies and young children to the mother. If one parent is particularly old, it is likely that the Court will take this as a factor that would reduce his or her ability to care for the minor or child.
Sex of the child
This is usually not a very important factor. However, this might have a bearing on the Court's consideration when all other factors are equal. For instance, statistics show that a girl about to go through puberty might fare better with her mother and a boy of the same age might fare better with his father.
Capability of the parents to fulfil the needs of the child
As said, each case depends on its own facts. The same applies to the growth and upbringing of a child, whose needs and ability varied from child to child.
Thus, a child's needs will be considered and balanced against the health, capability and resources of each parent. The misbehaviour of a party, e.g. adultery does not necessarily affect or reduce his or her ability as a parent. After all, the prime consideration for the court is the welfare of the child.