Sole custody is the right to make important decisions for the child without having to consult the other parent. This includes matters pertaining to religion, education and healthcare.
It is not the same as care and control, which is concerned with who the child will live with.
The established position in Singapore is that sole custody is the exception rather than the norm. The mere fact that your spouse suffers from mental illness does not mean that the court will automatically grant you sole custody.
The court’s focus will always be on the welfare of the child, which means that it is concerned about the effect of such mental illness and how it correlates to the child’s welfare.
In general, these are the exceptional circumstances where sole custody orders are made:
- Where one parent physically, sexually, or emotionally abuses the child; or
- Where the relationship of the parties is such that co-operation is impossible even after the avenues of mediation and counselling have been explored, and the lack of co-operation is harmful to the child.
If I suspect that my spouse is mentally ill, should I bring it up in court as part of my divorce strategy?
In the recent case of VHA v VHB [2020] SGFC 31, the Family Court strongly discouraged this practice. It said:
“No one should arrogate to themselves the right to describe someone as being mentally disordered no matter how sincere their belief. That is the preserve of experts such as psychiatrists and/or psychologists, not counsel nor spouses…”
Therefore, if you allege that your spouse is mentally ill and unfit to be a parent based on little more than your own inferences, observations and extrapolation, that might actually hurt your case.
As the judge in that case noted:
Would the court think that I am a bad parent if I do not pursue the question of my spouse’s mental health?
The court is not here to judge whether you are a ‘good’ parent or a ‘bad’ parent.
The Singapore courts have frequently emphasised the importance of both parents being present and participating in the child’s life.
Therefore, they are careful not to slap labels of ‘good’ or ‘bad’ onto either parent.
You should also bear in mind that the divorce process is not so much about figuring out who is good or bad – the cause of many disagreements between spouses over the children actually comes down to differences in parenting styles.
No one style is superior to the other, so if your allegations of mental illness are ultimately unfounded and amount to an underhanded tactic to exert superiority over your spouse, that is not likely to be well-received by the court.
For this reason, it is one thing to raise the question in court, and quite another to wage litigation upon litigation in a quest to prove that your spouse is mentally ill.
In the case of VHA v VHB, the court observed that this type of endeavour could actually undercut your case.
In considering whether to pursue the matter in court, ask yourself:
- How does it advance my child’s interests for a parent’s mental health to be scrutinised by long and tedious litigation?
- Does the mental condition affect my spouse’s ability to parent the child?
- Would these allegations negatively affect my ability to amicably co-parent with my spouse?
- Have I taken extra care to avoid worsening or triggering the condition? Would my litigation strategy worsen or trigger my spouse’s condition?
Will I get sole custody if my spouse lives with someone who is mentally ill?
The threshold for getting sole custody is very high in Singapore.
You will not get sole custody on the grounds that your spouse lives with someone who is mentally ill because these living arrangements do not directly affect their ability to make decisions for the child.
The situation may differ when it comes to care and control.
If the court finds that your spouse’s living environment is unsafe for the child because the mentally ill person in that household is prone to uncontrolled violence and physical abuse (for example), that is one strong factor in favour of care and control being given to you.
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- Child Custody & Maintenance issues;
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