Having Child Custody Issues Across the Border?

cross border child custodySingapore is an extremely diverse country with people from all over the world living and working here. With slightly over half the current population actually being born in Singapore, it’s not surprising that 2 in every 5 marriages registered in Singapore in 2008 were between Singaporeans and foreigners. No statistics are available on the number of marriages where both husband and wife are foreigners. In 2017, there was slightly more than 1 divorce for every 4 marriages.

Put all this together, and it becomes obvious that a marriage that does break down in Singapore is statistically far more likely to result in an international child custody battle than in many other similarly-sized cities in the world. I’ve certainly seen plenty of anecdotal evidence in my own practice to support that.

In this article, I will set out some of the most common questions I am asked by clients who find themselves thrust into a cross-border child custody battle and my answers to them.

Which jurisdiction gets to decide who gets custody of my child?

In circumstances where your child has been removed from his/her country of habitual residence by one parent without the consent of the other, the jurisdiction where your child was habitually resident is the one whose courts should decide who gets custody. Therefore, the country the child was taken to should return the child to his country of habitual residence for the courts there to decide custody, without exploring the merits of any custody arguments itself.

This is pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) which has been acceded to by 98 countries around the world.

The first thing to do when an issue of international child abduction arises, is to ensure that both countries involved have ratified the Hague Convention. If they have not, the process may be much more complex, unpredictable and lengthy and much of the information in this article may not apply. Note also that the Hague Convention applies only to children under the age of 16.

While the 98 parties to the Hague Convention include most developed countries, few Asian countries have signed. The only Asian parties to the Hague Convention are Singapore, Sri Lanka, Japan, Korea, Thailand and the Philippines.

Notable absences are Malaysia, Indonesia, China (in the process of acceding at the time of writing), India and Vietnam as well as most of Africa and the Middle East.

Assuming that both countries are parties to the Hague Convention, the country the child was abducted to should, upon application from the other parent, return the child to the contracting country where the child was habitually resident without attempting to evaluate the merits of any arguments for custody, and seek to ensure that this is done within 6 weeks.

Illustration: Meg and Mark live in Mexico with their daughter, Mindy. Meg leaves Mark, brings Mindy to Singapore without Mark’s permission and refuses to bring Mindy back to Mexico. Which court gets to decide whether Mindy should live with Meg or Mark?

The Mexican court. If Mark applies for the return of Mindy, and Meg resists, the Singapore court should order that Mindy be returned to Mexico so that the Mexican court can then decide who should be given custody of Mindy.

I have been given custody of my child. Will he/she be able to move out of Singapore permanently with me?

Not necessarily. Unless the court order specifically provides for liberty to relocate on a stipulated date, the fact that you have been granted custody of the child does not mean you can move the child out of Singapore permanently.

If your desire to move to a different country arose after your divorce was concluded, you will need to seek the consent of the other parent in order to relocate with your child and if he/she is agreeable, discuss how the other parent’s access arrangements will work going forward.

If he/she is not agreeable, you will have to make an application to relocate to the Family Court and it will decide whether to allow it in spite of the other parent’s objections, based on a holistic assessment of all the relevant factors but giving priority to what is in the child’s best interests.

What constitutes international child abduction?

A child has been abducted or “wrongfully removed” from a country if his/her removal breaches the custody rights of another person under the law of the country from which the child was removed AND those custody rights were being exercised at the time, or would have been exercised if the child had not been removed.

Those custody rights can arise by operation of the law (e.g. a parent may have a de facto right to custody of a child if the parents are not divorced and there is no court order dealing with the issue of custody), by virtue of a court order or by virtue of a custody agreement that is enforceable in the country of habitual residence.

In which country is my child a “habitual resident”? What does that mean?

There is no technical definition for habitual residence. It simply means the country where the child was ordinarily living before the events giving rise to the application for return began. Ordinarily, one parent cannot unilaterally create a new habitual residence for a child by abducting him/her to another country and keeping him/her there in order to claim that the new country is the child’s habitual residence and that any removal from that country would be wrongful. However, the longer a child is kept in a new country by one parent, the more likely it is that that new country will, after a time, be found to be the new habitual residence of the child.

Illustration: Johnny and Jane live with their daughter, Jill, in Japan. Jane brings Jill to live in Singapore without Johnny’s consent or a court order, in breach of Japanese law. Only a few months later Johnny goes to Singapore and manages to bring Jill back to Japan against Jane’s wishes. Jane should not be able to get an order from a Japanese court under the Hague Convention to return Jill to Singapore as Jill’s habitual residence was Japan before Jane wrongfully removed Jill from Japan and Jill has not been in Singapore long enough to fully establish a habitual residence.

What if my immigration status in Singapore has been revoked, will I still be able to retain custody of my child?

If (i) you have no right to remain in Singapore OR (ii) you are unable to obtain a court order granting you permission to relocate with your child to another country where you and your child do have a right to live, then you will not be able to retain custody of your child.

Frequently, when a Singaporean divorces a foreigner, whose immigration status in Singapore is contingent upon the continued sponsorship of his/her visa by his/her spouse, that visa is cancelled upon the Singaporean spouse’s application. When there are children to the marriage who are born in Singapore, they are Singaporean citizens by birth by virtue of their Singaporean parentage.

This creates an unfair advantage for a Singaporean parent in a custody hearing in Family Court in that the foreign parent cannot exercise any custody rights without uprooting the children from their environment and taking them to a country where that parent has a right to live, which of course would also deprive the Singaporean parent of any custody rights he/she might otherwise have. Whether the Singaporean children would be able to obtain a right to live in that country creates an added layer of uncertainty.

One solution is if at least one of the Singaporean children has reached the age of majority, he/she can sponsor the visa of the foreign parent, thereby creating a level playing field where either parent could theoretically exercise custody rights in Singapore, the environment in which the Singaporean children have some degree of stability.

If there is no adult child who can sponsor a visa, the foreign parent needs to find another avenue to obtain a lawful immigration status that would allow them to remain in Singapore, such as finding an employer to sponsor a work-based visa.

This process can take some time, and in the meantime, if the foreign parent’s spouse-sponsored visa has been cancelled, he/she may have a timeframe of a matter of weeks in which he/she is legally required to leave Singapore.

It is therefore imperative to first buy some more time to figure out alternatives. In circumstances where a foreign parent is being divorced by a Singaporean or in a custody battle with a Singaporean, the foreign parent may be able to obtain a “special pass” from the Immigration and Customs Authority (“ICA”) which would allow them to remain in Singapore only for as long as necessary in order for the court process to conclude.

The court process may take over a year to conclude, during which time the merits of each parent’s custody application may gradually change, depending on whether one parent is playing the role of the primary care-giver and having more contact with the children during that time.

It is crucial to obtain a special pass before the deadline to leave Singapore arrives. Therefore, in circumstances where a Singaporean spouse cancels their sponsorship of your visa to remain in Singapore, you should immediately reach out to a lawyer to make an urgent application for a special pass and to formulate a preliminary action plan that will put you in the best possible position to obtain custody of your children, if that is what you want.

My spouse has accused me of wrongfully removing our child from him/her. What are the possible defences on which I can rely?

If relevant to your circumstances, you may be able to argue that your removal of the child was not wrongful because you were merely returning your child to his/her original country of habitual residence after the other parent had wrongfully removed him/her to a new country. John, in the illustration above, could try to mount this defence if Jane sought an order from a Japanese court to return Jill to Singapore.

If relevant to your circumstances, you may be able to argue that since you removed the child to a new country, the child has established a new habitual residence in that country which has supplanted his/her old habitual residence. Jane, in the illustration above, could have tried to mount this defence if John had applied to the Singapore court for Jill’s return to Japan but she would be unlikely to be successful as Jill had only lived in Singapore for a few months, meaning that Singapore was unlikely to have supplanted Japan as Jill’s habitual residence.

You could try to argue that the other parent was not actually exercising custody rights at the time of removal.

You could try to argue that the other parent actually consented or acquiesced to the removal.

If more than one year has passed in between the date of the wrongful removal or retention and the date the application for return was filed, that is a complete defence under Article 12 of the Hague Convention.

If your child is old enough and mature enough for his/her views to be given some weight, and he/she does not wish to return to his/her country of habitual residence, this may result in the application for return being denied.

If you can prove that “there is grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” under Article 13 of the Hague Convention, you may be able to successfully resist an application for return, but the bar is quite high in terms of proving the likelihood of that harm.

If the return of your child would subject him/her to violation of basic human rights and fundamental freedoms, the court may decline to order his/her return under Article 20 of the Hague Convention.

THIS IS A REPRODUCTION OF AN ARTICLE WRITTEN BY NADIA MOYNIHAN AND FIRST PUBLISHED BY ASIA LAW NETWORK. THE ORIGINAL ARTICLE CAN BE FOUND HERE.
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