Variation of Parenting Orders (Custody, Care and Control & Access)

At the end of the second stage of your divorce proceedings dealing with ancillary matters, the Judge has likely made a decision on various issues pertaining to your child. This includes orders regarding:

• Custody: which parent gets to make major life decisions for the child in areas such as education, healthcare, and religion?
• Care and control: who is the custodial parent that lives with the child on a daily basis?
• Access: when and how long can the non-custodial parent spend time with the child?

Pursuant to s 128 of the Women’s Charter, any such order may “at any time” be varied or rescinded should the court find that there has been any “misrepresentation, mistake of fact, or where there has been any material change in circumstance” since the order was made. It is important to note that any variation can only be made if it is found to be within the child’s best interests.

What constitutes a “material change in circumstances”?
The court takes a principled and pragmatic approach to determine whether there has been a material change in circumstances that warrants a variation. Significant changes can include the following:

• A parent obtaining a new residence which the child can comfortably live in or enjoy access
• A parent finding a new job with greater flexibility of working hours
• A parent succumbing to a debilitating illness which necessitates a change in arrangement

However, there does not need to be any one particular identifiable event that amounts to a material change. The courts have recognized the “dynamic” nature of relationships and acknowledged that a variation can be warranted even in the absence of any significant event.

For instance, a young three-year old child may have been clingy to his mother at the time the court ordered care and control to the mother and limited access to the father. However, as the child grows older and outgrows this phase of high dependence, the court may find that it is in his welfare to spend more time with his father.

How do courts determine the “best interests” of the child?
In considering the welfare of the child, the court will consider the term in its widest sense and look at the general well-being of the child and all aspects of his upbringing – religious, moral, as well as physical. Furthermore, the court will take into account factors such as the child’s happiness, comfort, and security. In determining whether a variation will be in the child’s best interests, the court will consider factors including, but not limited to:

1. The need for both parents to have an involvement in the child’s life – the general direction of Singapore courts leans toward co-parenting as both parents are regarded as equally important figures for the child’s development and growth
2. The child’s wishes – in cases where the child is found to be of sufficient maturity to express his or her own views, a judicial interview may be conducted for the court to find out the child’s views directly; in other cases where younger children are involved, therapeutic interviews may be conducted with professional counsellors to elicit their feelings and perceptions
3. The desirability of keeping siblings together – the court generally encourages siblings to grow up together, and consider whether the variation will cause siblings to be separated
4. Which parent shows a greater concern for the child – the court takes into account the totality of a parent’s behaviour since the time the order was made, considering whether the parent has been present in the child’s life and whether the parent has had a positive influence or impact on the child

If you have any queries as to whether your prior court order relating to your child’s arrangement may be varied for any particular reason, our dedicated team of family lawyers will be able to assist you further in your application.