Child Custody Law
An application for custody of children may be heard in the Family Court in two ways:
- as an ancillary matter in divorce proceedings under the Women's Charter; or
as an application under the Guardianship of Infants Act.
This section deals with the case process and procedure for applications for custody or access of children under the Guardianship of Infants Act.
The steps in an application for custody and access are as follows:
: Plaintiff (i.e. the applicant) files an Originating Summons
: Plaintiff serves the Originating Summons
: Plaintiff files affidavit
: Defendant enters appearance
: Defendant files affidavit
: Plaintiff files Notice of Appointment to Hear the Originating Summons
: Pre-trial Conference conducted*
: Mediation, Counselling or Joint conference conducted*
: Adjourned Pre-trial Conference *
: Hearing of the Originating Summons*
(* denotes a court session where the attendance of parties and/or their lawyers in court is required.)
Step 1: Filing the Originating Summons (OS)
An OS must be in the prescribed form and must be stamped and filed in the Family Court Registry. The party who files the OS is known as the Plaintiff (P) and the party against whom the OS is filed is known as the Defendant (D).
In addition to the OS, the following documents will have to be filed in the appropriate circumstances:
- an affidavit in support of the OS: this document must be filed within 7 days of the service of the OS, but in practice, this is normally filed together with the OS;
- where the parties to the OS are or were married to each other, the P shall exhibit the marriage certificate in the affidavit in support of the OS;
where the parties to the OS are Muslims or married under Muslim law, and if there are or were divorce proceedings in the Syariah Court, the parties should also file either (a) a certificate of commencement from the Syariah Court; or (b) the parties' written consent to the proceedings in the Family Court and a certificate of attendance at counselling issued by the Syariah Court.
back to procedure
Step 2: Service of OS
The P must serve the OS papers on the D. This is to give the D notice that a suit has been started against him. Service may be effected by:
- personal service: an authorised person (usually the clerk of a law firm) must hand the OS papers to the D personally; or
service on D's solicitors: if the D's solicitors endorses (i.e. signs) on the OS that he accepts service of the OS, the OS shall be deemed to have been served on the date of the endorsement.
If the above service fails, the P may apply, by filing a Summons-in-Chambers, for:
- substituted service, that is, ask the court to approve an alternative mode of service, e.g. by pasting the OS papers on the front door of the place where the D normally resides, or by placing an advertisement of the OS in the newspapers (if the country in which the D resides is known); or
dispensation of service, that is, ask the court to approve that the OS papers need not be served. However, the court will only grant this if reasonable efforts have been made to locate the D, and the address where, or the country in which, the D can be found cannot be ascertained.
If an OS has to be served on a D outside Singapore, it is necessary to first obtain the court's leave (i.e. approval) for such service. Once the court gives, approval, service outside Singapore of the OS papers may be carried out in accordance with one of the following modes of service:
- personal service: see above;
- service on D's solicitors: see above;
- substituted service: see above;
- service in accordance with the law of the country in which service is to be carried out (this mode must be used if service is to be carried out in Malaysia or Brunei); or
service through diplomatic channels: the papers are served on behalf of the P through the foreign government, judicial authorities or Singapore consul (this mode must be used if service is to be carried out in Malaysia or Brunei),
provided that the above mode will not apply if it is contrary to the law of the country where service is to be effected.
Note that there is a time limit to serving the OS: the OS has to be served within 6 months of issuance if the OS is to be served in Singapore and within 12 months of issuance if the OS is to be served
Step 3: P files the affidavit
Given the nature of a custody application, the P would have to file an affidavit to present the facts supporting his application. The P's affidavit should be filed and served within 7 days after the service of the originating summons. Where parties to the originating summons are or were married to each other, a copy of the marriage certificate shall be exhibited in the plaintiff's affidavit.
Step 4: Entry of Appearance
If the D wishes to be heard on the case, the D must enter appearance to the OS within 8 days after service of the OS (including the day of service) if the OS is served in Singapore, and within 21 days after service of the OS where the summons is served outside Singapore. .
If the D fails to file the memorandum of appearance within the prescribed time, the P may file a document called the "Praecipe" to search the court records and upon confirmation that no appearance has been entered, file a "Certificate of Non-appearance" (click here for sample). With this certificate, the petitioner may proceed for hearing (i.e go straight to Step 6
The D should therefore note that if he simply ignores the OS papers and fails to file the necessary papers, the court may proceed to hear the case and make such orders as it deems fit.
Step 5: Filing of affidavit by D
Where the D intends to adduce evidence to support his case, he should file and serve his affidavit(s) within 21 days after being served with a copy of the plaintiff's affidavit.
Step 6: Filing of Notice of Appointment for Hearing by P
Upon the expiry of the time for the D to enter an appearance, or if an appearance was entered, upon the expiry of the time for the D to file his affidavit, the P may request for a hearing date by filing a Notice of Appointment to Hear OS (click here for sample).
Upon the receipt of this Notice, the Family Court Registry will stream the cases into different tracks in accordance with whether a memorandum of appearance has been filed by the D. If one has been filed, a pre-trial conference will be fixed (go to Step 7
). If one has not been filed, the court will fix a hearing date (go to Step 10
Step 7: PTC for OS
If the D is contesting the OS and has filed an affidavit to defend the OS, the court will fix a PTC before fixing dates for hearing. PTCs are conducted by a Deputy Registrar and the following matters will be considered:
- to consider whether the issue can be amicably resolved by the parties;
- to give orders on evidence: for example, the court may order parties to disclose relevant reports on the children etc.;
- to consider the need for an investigation into and for a report to be prepared on the welfare children and whether to appoint a Court Appointed Counsel to protect the welfare of children; and
- to refer parties for mediation and/or counselling.
Step 8: Mediation, Counselling and/or Joint Conference
Mediation and counselling are processes to assist family members to resolve (i.e. settle) or narrow (i.e. reduce) their family disputes. In both processes, a neutral person will first help parties to explore all the options that are available to the parties to solve their problems, and then craft a solution that meets the interests and needs of the parties and their children. The goal of mediation and counselling is therefore to seek a result that both parties can accept, that is, a win-win solution.
Mediation and counselling are confidential. In other words, the position taken by parties or any concessions made by them will not bind them if there is no settlement at the end of the session. The judge hearing the case will also not get to know what was said during mediation or counselling. However, if children have been ordered to attend counselling in order for a report to be put up, the matters disclosed during counselling will not be confidential. Parties and the children will be informed, before such a counselling session, that confidentiality will not be maintained.
Mediation is voluntary in the Family Court in that parties must consent to mediation. Mediation may be conducted by a judge or a volunteer mediator who is a qualified lawyer, counsellor or social worker. Mediation is normally fixed in cases where the dispute is over the maintenance of the children (if such an application has been made in conjunction with the custody application).
Counselling, on the other hand, is conducted by professional counsellors who have qualifications in social work or psychology. Parties and/or their children may be ordered to attend counselling. Counselling is normally fixed to conciliate disputes over the custody or care of or access to the children. Counselling may also be ordered for the children for their wishes to be ascertained and for a report to be put up on their welfare.
A joint conference is co-mediation i.e. mediation jointly conducted by 2 mediators (a legally trained person (usually a judge) and a counsellor). It is normally fixed in cases which involve issues of a legal nature as well as an emotional nature.
If parties know what to expect in these processes and are adequately prepared for the sessions, they will find that these processes are useful in either settling the case or at the least clarifying what the real disputes are. To find out how to prepare for mediation and counselling, refer to the Mediation pamphlet and Counselling pamphlet. It is important for parties to bring along the relevant documents (such as bank statements, salary slips) for mediation.
If the custody dispute is settled through mediation or counselling, the court will fix a date for Consent Orders to be recorded (go to Step 10
). If the dispute is not settled, the court will give directions (that is orders) on the further conduct of the case (go to Step 9
Step 9: Adjourned PTC
If the custody dispute cannot be settled, the court will fix another PTC after the mediation and counselling. At the adjourned PTC, the Deputy Registrar will:
- give orders on evidence and the preparation of the case to ensure an early and smooth hearing: for example, leave may be given to the parties to file further affidavits (that is, sworn statements);
- order the appropriate person (e.g. a court counsellor, a social worker from MCDS or a psychiatrist from the Child Guidance Clinic or in private practice) to furnish a report on the welfare of the children (if necessary);
- consider appointing a Court Appointed Counsel; and
ascertain the number of days required and fix the hearing dates.
When all necessary affidavits, documents and reports have been filed, the OS will proceed for hearing in chambers (go to Step 10
). The OS may be fixed for hearing on the 'Normal List' or on the 'Special List'. Fixing on the normal list means that the case will be fixed for hearing on the same morning or afternoon as 10-12 other cases, whereas a 'special' fixing means that the case will be fixed for hearing for half a day or more. Parties should therefore assess the complexity of the case and indicate to the court how much time they would require to argue their case.
In addition, in cases involving Muslim parties or parties married under Muslim law, parties are required to notify the Family Registry, in writing, a day before each hearing, as to whether proceedings involving the same parties have been commenced in the Syariah Court. If divorce proceedings in the Syariah Court were commenced after the custody proceedings at the Family Court, the P must file: file either (a) a certificate of continuation from the Syariah Court; or (b) the parties' written consent to the proceedings in the Family Court and a certificate of attendance at counselling issued by the Syariah Court.
Step 10: Hearing of OS
At the hearing of the originating summons, the court may proceed to hear the application or may give directions on the further conduct of the case as it thinks fit to ensure that the case is dealt with fairly and quickly. In appropriate cases, the court may direct the child to attend in order for the court to interview the child to ascertain the child's wishes in the matter. Alternatively, the court may direct a court counsellor or the Child Welfare Service of the Ministry of Community Development to furnish a report to assist the court to decide on the custody and the best possible arrangements for the welfare of the child. In cases where there are many disputes of fact, the court may give leave to parties to cross-examine the deponents of the affidavits. Cross examination is not normally allowed. After hearing both parties (if they are present in court), the court will rule on the dispute and make the necessary orders.
Other Applications Related to Custody and Access Proceedings
(i) Summons-in-Chambers (SIC)
An SIC is an application that is heard in chambers (i.e., it is a private hearing unlike a trial, which is heard in open court), by either a District Judge or a Deputy Registrar. Parties and their witnesses need not testify in court when SICs are heard as such applications are heard based on affidavits (i.e. a document that sets out the evidence of the parties and that is sworn or affirmed before a Commissioner for Oaths).
SICs can be filed for a range of matters that are related to a suit and can be filed at any point in time during the proceedings or after orders have been made by the court.
Common SICs filed in custody proceedings include applications for:
- substituted service or dispensation of service;
- interim custody or access;
- interim maintenance;
- injunction: an application to prevent a party from taking a child out of Singapore;
- amendment: an application to correct a court document;
- discovery: an application for one party to disclose reports or other documents;
- striking out: an application to remove a document or a portion of a document from the court's file;
- extension of time: an application to be given more time to take a step that is required under the Rules; and
variation of a court order: this application is normally made to change the access orders or the maintenance amount awarded by the Court.
If either party is dissatisfied with a court order, he may file an appeal against the order. In the appeal papers (known as the Notice of Appeal), he must state the date of the order and the name of the District Judge or Deputy Registrar who had made the order, as well as specify which part of the order he is appealing against. If the order in question is made by a Deputy Registrar, the appeal papers must be filed at the Family Court Registry. If the order in question is made by a District Judge, the appeal papers must be filed at the Appeal Section at the Civil Court Registry. You should seek legal advice if you need assistance in drafting the appeal papers.
A praecipe is a request to the court. Praecipes are commonly filed when a person wishes to search the court's records, to inspect the court's file or to extract a certified true copy of a court document . Praecipes have to be stamped and filed in court.