What is Child Custody?
Child custody is an issue that arises when parents undergo divorce proceedings. However, this issue is only contested if the child involved is below 21 years of age.
Aim of Child Custody
The ultimate aim is to ensure that the child’s welfare and upbringing is not neglected when the parents commence proceedings for divorce. To ensure that the aim is achieved, no final judgment of divorce would be granted unless arrangements have been agreed upon.
Types of Child Custody
There are two sub-categories of custody, legal and physical.
Legal Custody
Legal custody refers to the right to make important decisions for the child. This can be broken down into three main categories.
Education Issues
This includes the choice of school, co-curricular activities, subject combinations, enrichment classes, and other ancillary matters related to the education of the child.
Medical or Healthcare Issues
This includes the choice of doctor, insurance, hospitalization and other ancillary matters related to the physical and mental well-being of the child
Religious Issues
This includes the choice of religion to profess, propagate and practice, and other ancillary matters related to it.
- (a) Sole Custody Order
Under this order, all major decision making resides in one parent, leaving the other parent incapacitated. This is an extreme order, albeit not unusual.
There are two main situations that call for such an order to be made:
– Where the relationship between parents deteriorated to the extent of warranting complete avoidance of contact or interaction
– Where parties are at loggerheads, unable to come to a consensus
– One parent decides to give up custody of the child
- (b) Joint Custody Order
Under this order, both parents have an equal say in important decisions made for the child. This is the preferred order as notwithstanding the end of a marriage between the couple, the upbringing and welfare of the child remains the responsibility of both parents. Additionally, courts have recognized that having both parents involved in the child’s life is pivotal to his or her emotional development.
Physical Custody
(a) Care and Control
When care and control is given to a parent, it is that parent who lives and takes care of the child. By usual practice, mothers are usually favoured the care and control due to them being the dominant caregiver prior divorce.
There are. However, exceptions to this:
- Mother agrees to father’s request of the latter having care and control
- Child decides and expresses clearly his or her desire to stay with the father
- Mother found to be abusive or neglectful
- Mother currently serving a jail term
- Mother physically incapacitated, unable to meet the child’s daily needs
(b) Access
Access is given to the parent who does not live with the child. This usually applies to fathers, who would be granted reasonable access, based on conditions negotiated between the parties.
The agreement of arrangement reached between the parents must be in the best interest of the child. Court would unlikely depart from the agreement reached as parents are deemed to be the most suited to determine the child’s needs. However, there are some non-exhaustive guiding factors that would be considered by the courts.
This includes:
- Official Reports generated by the Ministry of Community Culture and Youth or the Family and Juvenile Justice Court
- The child’s wishes
- History of relationship between child and parent
- Age of the child
- Presence of family support
Unless convincing evidence shows that the father (or mother) does not deserve reasonable access, this would usually be accompanied with an order of care and control.
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