Family

Law
#8 CUSTODY
AND ADOPTION
OF CHILDREN

1
Introduction
• In Lesson 7, we learnt about Parental Rights and Duties.

• Duties include:

 S. 46 Women’s Charter – Caring and Providing for the Children

 S.68 Women’s Charter – ensuring the Child has basic needs (e.g.
accommodation, food, clothing and education) as may be reasonable or paying
someone else to do it for you.

• Parental Rights (e.g. discipline, education etc.)

2
Legislation

• Women’s Charter 1961 (“WC”)

• Guardianship of Infants Act 1934 (“GIA”)

3
Custody

4
Custody
 Definition – What is Custody?
 Considerations
 Who is to get custody?
 Types of Custody Orders
 International Child Abduction (FYI)
5
What is Custody? (1)
• Consider the following phrases you often hear in drama serials and/or the
media:
 “I don’t care for everything else, I just want custody of the child.”
 “My husband states he wants full custody of the child.”

• Is the above a correct reference to what custody is all about?

• Answer: No.
6
What is Custody? (2)
CX v CY [2005] 3 SLR(R) 690 – No clear definition under Statute
Law:
“It would be appropriate at this juncture to define what “custody” and “care and
control” orders entail. The lack of an authoritative opinion on what each order
involves has contributed largely to the constant “custody” disputes, and the law of
custody in Singapore is in a state of confusion because the demarcation between the
two orders has not been made clear. […] the definition of “custody orders” has been
muddled with that of “care and control orders”. 7
What is Custody? (3)
CX v CY [2005] 3 SLR(R) 690 – (Cont.)
The statutes are also of little assistance in the definition of either order. The GIA is silent as to the
definition of “custody orders”, and the closest definition we have is in s 126(1) of the Charter, which
states that the person given custody shall be entitled to decide all questions relating to the upbringing
and education of the child. The reference to “non-custodial parent” in Form 27 of the Schedule,
pursuant to s 8(1)(b) of the Women’s Charter (Matrimonial Proceedings) Rules (Cap 353, R 4, 2004
Rev Ed), as the “parent who does not live with the child” also does not help to clarify the law. It
appears to give the impression that the non-custodial parent is the parent who does not live with the
child and conversely, the custodial parent is the one who lives with the child. This leaves out the
possibility that a custodial parent, who is not granted a care and control order, may also not live with
8
the child.
What is Custody? (4)
Terminology
Children
Custody • Custody is often used to describe
children custodial issues.

• In actuality, under the main

“umbrella” of custody, there are 2
(A) Residual main categories:
Custody (often (B) Care &
refer to as just Control
“custody”)  Residual Custody (“custody
orders”); and

 Care & Control.

9
What is Custody? (5)
CX v CY [2005] 3 SLR(R) 690 – Provides the difference between the “Custody” and
“Care and Control”: (Summary points)

• Custody is divided into 2 smaller packages  “care and control” and residual
“custody”.

• Residual Custody  package of residual rights that remains after grant of care and control
order.

• Care & Control  dictates who is the daily caregiver; who child should live with; day-to-
day decision making. Custody concerns the important long-term decision-making of the
welfare of the child. 10
 What is Custody? (6)
Main
Custody
differ Major parental decision rights
ences on issues such as change of
? names/surnames, religion,
residing country, education
and medical treatment.
Long-term decision making
Care & Control (“C&C”)
Power to make day to day
decisions for the child.
Child will stay with the parent
who has C&C.
Hence C&C is the one that
parents are usually tussling
over.
11
What is Custody? (7)
Major-Decision Making Issues:

1. Education – What constitutes to a major education decision?

• Clear-cut  Whether the child should pursue tertiary education; attending
tuition classes.

• Less clear-cut  Which school the Child should attend; Whether the child
should study in a neighbourhood school or a brand name school; group or 1-on-
1 tuition.

• You will see in subsequent lessons, that in order to avoid constant bickering
12
between parents, the Court Order will contain answers to the above questions
What is Custody? (8)
Major-Decision Making Issues:

2. Medical – Major operations and long-term treatments

• But what about emergency situations?  this right to be consulted does
not include emergencies as it will not be in the child’s best interests to wait
for the other parent’s consent before proceeding. Time is of the essence in
these cases.

• However if there is time to consult (e.g. long-term treatment for cancer),

then the other parent should be consulted.
13
What is Custody? (9)
Major-Decision Making Issues:

3. Change of Name/Surname – To avoid one parent from seeking

to change the name without the other’s consent (e.g. when a Wife seeks
to change the surname of the child).

4. Change of resident country – To avoid the situation whereby a

parent relocates overseas with the child without the consent/knowledge
of the other parent. 14
What is Custody? (10)
Major-Decision Making Issues:

5. Change of Religion – Religion in itself is a sensitive topic for

some. Hence this is to ensure that both parents are agreeable to the
child’s change of religion. Notwithstanding, consider this along with
the Art. 16 of the Constitution, whereby a child above 18 can choose
his/her own religion (in spite that the usual age of majority is 21).

15
What is Custody? (11)
• What are the normal orders for Custody?

1. Joint Custody

2. Sole Custody

• Tau v Tat [2018] SGHCF 11 (follows CX v CY)

 Joint custody or no custody orders are the norm  must consult each other and co-operate to
make major decisions for the child.
 Sole custody is the exception  where there have been child abuse (i.e. physical, emotional
and/or sexual) or relationship of parties make co-operation impossible and thus would affect
the child’s interests. 16
 What is Custody? (12)
Summary:
• Do not use “custody’ flippantly.
 What do you mean when you say “custody”?
 What does “care and control” entail?

• Without guardianship or custody order, both parents must share full circle of
custody rights

• Once a custody order delineates what is custody and what is care and control,
the parent with care and control then gets the bulk of the parental rights.

17
Considerations (1)
Most Important Principle:

• Welfare of the Child is to be of Paramount Consideration

• Best interests and welfare of the Child

18
Considerations (2)
Scenarios to Consider:
A. What happens when there is a dispute between parents as to Custody, Care
& Control of Child?

B. What if there was a prior agreement as to the custody, care & control of the
Child?

C. What if a non-biological parent wants to have custody/access to the Child?

19
(A) What happens if there is a dispute? (1)

S. 125 WC – Paramount Consideration to be Welfare of the Child:

(2) In deciding in whose custody a child should be placed, the paramount

consideration shall be the welfare of the child and subject to this, the court
shall have regard —

(a) to the wishes of the parents of the child; and

(b) to the wishes of the child, where he or she is of an age to express an

independent opinion.
20
(A) What happens if there is a dispute? (2)

GIA also echoes WC  S. 3 GIA: Welfare of Infant to be Paramount

Consideration
Where in any proceedings before any court the custody or upbringing of an infant or the
administration of any property belonging to or held in trust for an infant or the application of the
income thereof is in question, the court, in deciding that question, shall regard the welfare of the
infant as the first and paramount consideration and save in so far as such welfare otherwise
requires the father of an infant shall not be deemed to have any right superior to that of the mother in
respect of such custody, administration or application nor shall the mother be deemed to have any
claim superior to that of the father.
21
(B) What if there was a prior
agreement? (1)
What about Pre/Post Nuptial
Agreements?

• S. 129 WC – Power of the Court to vary

agreements if it is reasonable and for the
welfare of the child to do so.

22
 (B) What if there was a prior agreement? (2)

• TQ v TR and Another Appeal [2009] SGCA 6 – “Courts must always have the to
scrutinize both prenuptial as well as postnuptial agreements relating to the custody (as
well as the care and control) of children. There ought to be a presumption that such
agreements are unenforceable unless it is clearly demonstrated by the party relying on
the agreement that that agreement is in the best interests of the child or the children
concerned. This is because such agreements focus on the will of the parents rather than
on the welfare of the child which has (and always will be) the paramount consideration
for the court in relation to such issues.”

23
(C)What if a non-biological parent
wants custody/access? (1)
AD v AE [2005] 2 SLR(R) 180
• A case where a non-biological parent wanted access to the Child

• Children were not the biological children of the Husband. Wife depended on this claim to deny
him access. This revelation has also caused daughters to be shaken and unwilling to see the
Husband.

• Based on the old S. 114, the Evidence Act (EA), only way to prove you are not the parent is not to
have access. In this case, there was access; hence Husband’s argument is that he has right of
access. Wife countered that she has a DNA report to prove that Husband is not the biological
father and as such, Court has no power to order access.
24
(C)What if a non-biological parent
wants custody/access? (2)
AD v AE [2005] 2 SLR(R) 180 (cont.)

• The Court was conflicted  Husband not wrong in his argument in relying
on S.114, EA, but then again cannot ignore the fact that it has been
scientifically proven that the daughters are not biological his.

• What would you do if you were in the Court’s position?

25
(C)What if a non-biological parent
wants custody/access? (3)
AD v AE [2005] 2 SLR(R) 180 (cont.)

• Court eventually ignored the issue on “whose child is this”.

Ignored the application of the old S.114 EA

Ignored the DNA test

• Focused on S. 92 WC instead  Definition of “child of marriage” includes any

other child that was living with the parties immediately before the courts
proceedings started or before they were separated. Not exclusive to biological
children. 26
(C)What if a non-biological parent
wants custody/access? (4)
AD v AE [2005] 2 SLR(R) 180 (cont.)

• Court commented that S. 92 WC is an escape valve.

• Children were considered as “children of marriage” under S.92

WC. Hence Court decided it had power to order access and did so.

27
(C)What if a non-biological parent
wants custody/access? (5)
With the new phrasing of S.114 EA, do you think it would have made any
difference to decision in AD v AE?

• Doubtful – S.92 WC has not changed and thus the Courts can continue to rely and
refer to it in cases similar to AD v AE.

• Moreover, remember: Paramount Consideration = Best interests and welfare of the

child.

• Hence suddenly cutting off the child’s contact even with a non-biological parent can
be seen as detrimental if the child is close to him/her
28
Who is to get Custody? (1)
Main guiding principle: “Is it in the best interests and
welfare of the child” What does this mean?
Soon Peck Wah v Woon Che Chye [1997] 3 SLR(R) 430:
“The welfare of the child should be understood in the widest sense. It is not
to be measured in money or physical comfort alone. The child’s moral and
religious well-being as well as ties of affection must also be considered
together with his or her physical well-being. The rights and wishes of the
parents can also be considered in conjunction with the child’s needs.”

29
 Who is to get Custody? (2)
Non-Exhaustive List of Factors Court will  Which parent has more time for the child
consider:  Which parent is the child closer to
 Current arrangements, e.g. who is the parent emotionally
that is the child’s primary caregiver?  Which parent is able to provide financially
 Child’s wishes if old enough to express for the child
 Parents’ wishes  Continuity

 SWR/CER reports by Court counsellors  Maternal Bond

30
 Who is to get Custody? (3)
Court will also need to hear from both parties on their:
Future care arrangement plans

Financial arrangement plans

Details are to be extensive.

31
Who is to get Custody? (4)
• All things being equal, the mother tends to be awarded care and control of a
young child, especially if the child is a girl. Kah Cheong Kenneth v Teoh
Kheng Yau [1994] 2 SLR(R) 595

• NOT a hard and fast rule. Ultimately the Court is guided with what is
considered to be in the best interests and welfare of the Child. Also nature of
gender roles in our society in the past vs our current modern society.

32
Types of Custody Order (1)
• As mentioned in previous slides, joint custody is the norm. Care and control is
given to one parent, and the other parent will receive reasonable/liberal access.

• However consider the following variations:

No/Sole custody orders

Shared care and control

Supervised/Liberty to accompany access orders

Specific access arrangements

33
Types of Custody Order (2)
CX v CY [1996] 2 SLR(R) 529:

• Generally no order for sole custody save in exceptional circumstances.

• Acrimony alone insufficient for a sole custody order

Exceptional circumstances:
• Severe dereliction of parental duty

• Abuse of child (physical/emotional/sexual)

• Parent unable to care for child, e.g. due to mental incapacity

34
International Child Abduction (1) FYI (not
assessed)
• Cross Border Marriages are more common these days*

• There is always a fear of child abduction when a transnational marriage

breaks down (and it does happens).

• What avenues are available for the parent being left behind?
Hague Convention

Serving a Court Order/Injunction Order on ICA

35
 International Child Abduction (2) FYI
(not assessed)
Hague Convention on Civil Aspects of International Child
Abduction

• A multilateral treaty that provides an expeditious method to

return a child internationally abducted by a parent from one
member country to another.

• As of Jan 2014, 92 states are party to the convention*

• 2010 - Singapore acceded to the Convention –

International Child Abduction Act 2010 36
 International Child Abduction (3) FYI
(not assessed)
Hague Convention on Civil Aspects of International Child Abduction (cont)
• Applies to cases from March 2011; other country involved must also be member
• If a child has been wrongfully removed from his/her habitual residence or
wrongfully retained in Singapore, Singapore will help track down and return the
child. The Ministry of Social and Family Development now facilitates the
discovery, protection and prompt return of such children.

37
 International Child Abduction (4) FYI
(not assessed)
Hague Convention on Civil Aspects of International Child
Abduction (cont)

• Similarly, a parent in Singapore can rely on this Convention to

retrieve an abducted child based overseas.

• Though the parent will have to engage the law and family
enforcement agencies in that country.
38
International Child Abduction (5) FYI
(not assessed)
Court Orders / Injunction Orders for ICA
• Since 01 Jan 2019, parents can seek a Court Order or an Injunction Order to
restrain the other parent from taking the child out of Singapore.

• Apply to ICA with the said order to prevent the other parent from leaving the
country with the child.

• There needs to be a real risk and danger of one parent taking the child
overseas (without knowledge/consent).
39
Adoption

40
Adoption
• Meaning of Adoption & Applicable Law
• Parties involved – who may be adopted and who may adopt
• Conditions for Adoption
• Effect of an Adoption Order
• Adoption Process (FYI)

41
What is Adoption
Meaning
• Substituting a child’s birth parents (“natural parents”) with another set of
parents (“adoptive parents”).

Laws & Procedures

• Adoption of Children Act 1939 (“ACA”)

• Part 6 of the Family Justice Rules 2014

42
Parties: Who may be adopted? (1)

Section 3(1) ACA:

Upon an application in the prescribed manner by any person desirous

of being authorized to adopt an infant who has never been married, the
court may, subject to the provisions of this Act, make an order
(referred to in this Act as an adoption order) authorizing the applicant
to adopt that infant.
43
Parties: Who may be adopted? (2)

Child to be adopted must be:

 Infant  Under the age of 21 years old (S. 3(2) ACA)

 Has never been married (S. 3(1) ACA)

 Must be a resident of Singapore (S. 4(6) ACA) – cannot be on

visitor’s pass, student’s pass, or special pass. At least has to have a
Dependent’s Pass (S. 4(7) ACA)
44
Parties: Who may adopt? (1)

 Individual

 Married Couple (“Spouses”) – S. 3(3) ACA

 Natural mother/father of the Child (either alone or together with

his/her spouse) – S. 3(4) ACA

*Consider this: Can a homosexual couple adopt a child in

Singapore? (see additional notes below)
45
Parties: Who may adopt? (2)

Restrictions imposed on the Adopters:

• Must be a resident in Singapore (includes PR and Employment Pass) (S.
4(6) ACA)

• Generally must be at least 25 years old and at least 21 years older than the
infant (S. 4(1) ACA)

• Male applicant cannot adopt a female child (S. 4(3) ACA) – unless there are
special circumstances 46
Parties: Who may adopt? (3)
Exceptions to the Restrictions (S. 4(2) ACA)
• Can allow for adopter to be below 25 years old and less than 21 years older
than the infant if:-
 Applicant & Infant are within the prohibited degrees of consanguinity;
or
 Other special circumstances that justify as an exceptional measure (if
parties are not within the prohibited degrees of consanguinity)
47
Parties: Who may adopt? (4)
Exceptions to the Restrictions (cont.)
• In the case of spouses, adoption order can still be made even if one or both the
spouses are less than 21 years older than the infant (notwithstanding that
neither spouse is within the prohibited degrees of consanguinity with the
infant).

• If one spouse is under the age of 25 years and less than 21 years older than the
infant, then an adoption order can still be made if one of the spouses and the
48
3 Conditions

S. 5 ACA:
a. Consent

b. Welfare

c. Rewards

49
1 Condition: Consent (1)
st

S. 5 ACA:
(a) That every person whose consent is necessary under this Act and whose
consent is not dispensed with has consented to and understands the nature
and effect of the adoption order for which application is made, and in
particular in the case of any parent understands that the effect of the adoption
order will be permanently to deprive him or her of his or her parental rights;

50
1 Condition: Consent (2)
st

Whose Consent is required?

• S. 4(4) ACA – Parent / Guardian / Person with actual custody of the infant

• S. 2 ACA – “Parent” in relation to an illegitimate infant, does not include

natural father.

• S. 4(5) ACA – If sole applicant is married, consent of his/her spouse must

be obtained.

Above can be dispensed with if Court allows for the same.

51
1 Condition: Consent (3)
st

Re BJU to be called B [2013] SGHC 138:

Facts:
• Natural father of 15-year old boy – previously jailed for nine months for
being AWOL from NS, and was serving a 6-year sentence for a drug offence
at the time of the case.
• Court dispensed with consent of natural father for stepfather to adopt 15-
year-old boy.

Choo Han Teck J:

“As the law stands, while the natural father's position should not be
disregarded, it is the welfare of the child that is paramount.”
52
 1 Condition: Consent (4)
st

What happens if Consent has been Refused?

See Article: Foster parents to adopt 5yo boy (May 2020)

Facts:
• Biological mother refused to provide consent to the adoption. She was also
disinterested when long-term plans were being made for the children.

• The biological parents were subsequently arrested and sentenced to

imprisonment again for drug related offences.

53
 1 Condition: Consent (5)
st

Court Held:
• Adults in the biological family were comfortable leaving their children with
others as they worked through their challenges (so long as ties are not
permanently severed). This arrangement cannot work in a family torn apart by
drugs and whereby the child has been abandoned at birth.

• Little attention to their needs

• need for a safe environment and sufficient encouragement to do well in school

“augurs well for his future”

54
2 Condition: Welfare
nd

S. 5 ACA:
(b) that the order if made will be for the welfare of the infant, due
consideration being for this purpose given to the wishes of the infant,
having regard to the age and understanding of the infant.

Consistent with principles in Women’s Charter and

Guardianship of Infants Act?

55
 3 Condition: Reward
rd

S. 5 ACA:
(c) that the applicant has NOT received or agreed to receive,…, any payment or
other reward in consideration of the adoption except such as the court may
sanction.

S. 11 ACA
It shall not be lawful for any adopter or for any parent or guardian except with the
sanction of the court to receive any payment or other reward in consideration of
the adoption of any infant under this Act or for any person to make or give or
agree to make or give to any adopter or to any parent or guardian any such
payment or reward.
What payments would be sanctioned by the court? 56
Effect of Adoption Order (1)
S. 7 (1) ACA:
• Natural parents’ rights, duties, obligations & liabilities are
extinguished and taken over by adoptive parents.

• Child is also treated as if he/she was born to the adoptive parents in

wedlock (i.e. a legitimate child)

• Adoptive parents must maintain the adopted child and the

adoptive child also has the duty to maintain his/her adoptive
parents, and not his/her natural parents.
57
Effect of Adoption Order (2)

S. 7 (2) ACA: Right to Inheritance

The adopted child has the same rights of inheritance as a
legitimate child in the event of an adoptive parent’s intestacy.

58
Procedure (1)
FYI (not assessed)

Two Types of Procedures:

1. Adoption of a Singaporean or Permanent Resident Child

2. Adoption of a Foreign Child

59
Procedure (2)
FYI (not assessed)
Similarities (Singaporean/PR vs Foreign)
• All prospective adopters are to attend a Pre-Adoption Briefing
• Adoption application commences at the Family Justice Courts
• The Director of Social Welfare, MSF, shall be appointed as the Guardian-in-
Adoption (GIA).
• MSF will conduct all social investigations and will produce an Affidavit once
they are done.
• Court will based its decision on MSF’s findings.
60
Procedure (3)
FYI (not assessed)
Difference (Singaporean/PR vs Foreign)
• For adoption of a foreign child, a Home Study Report (“HSR”) will be required (unless
there is waiver by MSF for the same.
• Only if the HSR is acceptable, then the adoption can proceed.
• Upon a completed favourable HSR, the adoptive parents can then apply for a Dependent’s
Pass for the Child to arrive in Singapore. This application is made via MSF.
• After the above, the process will proceed as per the adoption of a SG/PR child.

61
Procedure (4)
FYI (not assessed)
For your own reading, you can check out the following sites for the in-depth
processes:

• How to adopt a Local Child (

https://www.msf.gov.sg/Adoption/Pages/How-to-adopt-a-citizen-or-PR.aspx)

• How to adopt a Foreign Child (NA to children from China) (

https://www.msf.gov.sg/Adoption/Pages/How-to-adopt-a-foreign-child-excluding-chil
dren-from-the-Peoples-Republic-of-China.aspx
) 62
Amendments to Adoption Laws FYI
(not assessed)
• The Adoption of Children Act 2022 was passed in Parliament in 2022. It
introduced changes that include:
 More grounds where the Court can dispense with the need for the birth
parents’ consent to adoption;
 Preventing those with serious criminal convictions from adopting;
 Deterring undesirable and unethical practices among commercial adoption
agencies; and
 More guidance on who can adopt jointly.

However, it has yet to come into force as of date.

63
Next topic
Topic 10

Maintenance of
Parents

64