In regard to custody or upbringing of the matrimonial children, Section 5 of the Guardianship of Infants Act 1967 provides equal rights for both parents.
WHAT IS CUSTODY CARE AND CONTROL?
In CX v. CY [2005] 3 SLR 690, the Court of Appeal held that:
(a) Care and Control is the right to take care of the child and to make the day to day decisions concerning upbringing and welfare and it determines with whom the child resides and which parent is granted parental responsibility, which in law means all their rights, powers, responsibilities, and authority over the child and the child’s property; and
(b) Custody relates more to long term decisions regarding the welfare of the said child.
POWERS OF COURT TO ORDER CUSTODY
That being said, the Court is empowered to make orders pertaining to custody of the matrimonial children in exceptional circumstances e.g. abuse. This evident from a perusal of Section 88 of the Law Reform (Marriage and Divorce) Act 1976.
STATUTORY PRESUMPTION
There is a rebuttable presumption under Section 88(3) of the Law Reform (Marriage and Divorce) Act 1976 that it is for the good of a child below the age of 7 years to be with his or her mother. In order to rebut the presumption, the father must show that the mother is an unfit mother.
FACTORS TAKEN INTO CONSIDERATION
The Court in Amar Kaur Ram Singh v. Najar Singh Sagar Singh [1992] 2 CLJ (Rep) 67) has held that it would not be right from the point of view of the child to cut him or her off from all access to either of the parents.
It is equally wrong to deprive a parent of access to the child and it has been acknowledged in the case of Celvambigai S Thirucelvam v. Pandian Subramaniam [2015] 6 CLJ 225 wherein the Court has held that children need to spend quality time with both parents.
In Chow Sook Pheng v. Wong Maun Hoong [2011] 1 LNS 260, Yeoh Wee Siam J opined that just because the parents’ marriage has broken down, it does not mean that the children should be alienated from either parent.
CONCLUSION
In deciding whose custody a child should be placed, the paramount consideration is the welfare of the child.
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