Communication is key – Appointing of guardian

One would have heard more than once: Communication is key.

Unfortunately, there may be some instances when separated (or divorced) parents fail to communicate their choices of guardian(s) for their children in the event they pass away. In such situations, there may be conflicting choices of guardians in each parent’s will. What happens then?

While not an ideal situation, particularly for the child(ren), pursuant to section 7 of the Guardianship of Infants Act (Cap. 122, 1985 Rev Ed) (the “GIA”), each parent has separate authority to appoint any person to be the guardian of the infant after his or her death, by will or by deed. In this regard, we would clarify that while the term “infant” is not defined in the GIA, a “child” is defined in the Women’s Charter (Cap. 353, 2009 Rev. Ed) as a “child of the marriage as defined in section 92 but who is below the age of 21 years”.

Where one parent passes first, then the surviving parent shall be guardian of the infant, either alone, or (subject to objection by the surviving parent) jointly with any guardian appointed by the deceased parent.

An alternate situation may occur if both parents appoint the same guardians. In such instances, the guardians, after the death of the surviving parent, are required under section 7(5) of the GIA to act jointly.

If, there should be a dispute between the joint guardians, then any of them may apply to the High Court or a Family Court for that Court’s direction under section 8 of the GIA. Such Court also has the power under section 10 of the GIA to remove any guardian from guardianship and appoint another guardian in his/her place. In exercising such power, the Court is to have regard to the welfare of the infant and shall, where the infant has a parent or parents, consider the wishes of such parent or both of them.

At the end of the day, and as set out in the Singapore Court of Appeal case of Re C (an Infant) [2003] 1 SLR (R) 502, there exists an “overriding power of the court, in exercise of the jurisdiction conferred under the Act of either removing that parent as a guardian over the child, if it is established to the satisfaction of the court that it is not in the welfare of the child to be in the custody, care and control of that parent, or appointing another person as an additional guardian to act jointly with the surviving parent”.

As the cardinal principle is succinctly encapsulated at section 3 of the GIA, the welfare of the infant is to be the first and paramount consideration.

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