Unfortunately, in the event of the dissolution of marriage, issues relating to children of the marriage often cause the most heated disputes between the spouses. Typically, mothers are more involved in the day to day care of the children and hence expect to continue do so following divorce, whereas fathers are fearful of alienation and being kept out of any decision regarding their children.
In considering children issues, the highest level of attention of the court is given to the best interest of the children (as opposed to the rights of the parents). Therefore, there has been a continuing trend for the Hong Kong court to make an order for “joint custody” even when it is apparent that the parents have communication problems. Both parents will have to jointly make crucial decisions relating to the children (e.g. health, education, religious beliefs, place of residence, etc…). However, when the parents simply cannot agree, such differences may have to be resolved via further court proceedings.
Usually care and control of the children is awarded to one parent and the other parent gets the right of access. Care and control means the daily care of the children and routine everyday decisions about their wellbeing. Access means visitation rights which can be specifically defined or even supervised as per the order made by the court.
Main factors influencing custody decisions
Some important factors normally taken into consideration when deciding about children custody are:
- Keeping the “status quo” tends to avoid a disruption from an environment where the child has already comfortably settled in.
- Considering the strong bond that the child has developed with her/his “main caregiver”.
- Listening to the “child’s wishes” is one of the important factors to be taken into consideration. The court sometimes rely on reports from Social Welfare Officers or psychologists when assessing the child’s wishes and views and what is in the child’s best interests (which may be different from his/her wishes).
- “Sibling unity” is common concept that the court adheres to, especially when the siblings are of similar ages and are accustomed to living together.
- The “age of the parents and the child” and the “capability of the parent” are factors also taken into consideration, in fact, custody of babies and younger children are often granted to the mother (who is often the primary carer). If one of the parents is particularly busy, old or disabled then his/her ability of taking care of the child might be viewed by the court as reduced. The misbehaviour of a party (for example adultery) does not necessarily affect or reduce his or her ability as a parent.
Joint or sole custody and wardship
There may be justification for “sole custody” if one parent wants to leave Hong Kong with the children, and the country to which they are moving may need an order for sole custody to ease the administration process.
“Wardship” proceedings can be instituted at any time when there are special concerns about a child’s welfare such as when it is suspected that a child would be, or has already been, removed from Hong Kong. In rare cases, the Court may find that neither parent is suitable to care for the children.
Once wardship proceedings have been instituted, the Court has very wide and far-reaching powers to make any order, including financial provisions which are necessary to protect the interests and welfare of the child. In circumstances where children have been taken out of Hong Kong, the Court can instruct to find the child, even involving other relevant authorities such as the Social Welfare Services, the Police and the Immigration Department. In such cases the child remains a ward of the Court until the age of majority unless otherwise ordered by the Court itself. Wardship proceedings are generally made only in exceptional circumstances. Hong Kong is a signatory of the Hague Convention on Child Abduction as stated in the Child Abduction and Custody Ordinance (Cap 512).
Travelling out of Hong Kong or leaving permanently
Parents concerned with children travelling out of the territory can request that travel documents be deposited at a trusted law firm and that such documents will not be released unless there is parental or Court’s consent. In extreme cases a prohibition order can be sought with the Court to forbid the removal of the child from Hong Kong or out of a parent’s custody, care and control.
It is not uncommon that divorced couples are concerned about the ex-spouse taking children out of Hong Kong either permanently (e.g. for emigration) or for holiday without his or her advance notice, thereby depriving him or her of access to the child.
In view of this, custody orders are endorsed with a notice in the form of a direction that neither parent is entitled to remove the child from Hong Kong unless the following conditions are met:
- obtain the approval of the Court; or
- obtain the written consent of the other parent who and the assurance that the child will return to the territory after any fixed or agreed period spent abroad, or even earlier if requested to do so by the Court.
Disputes often arise between divorced couple over the planning of holidays in respect of child access. Costly applications would have to be made to the Court to resolve the disputes if the parties failed to come up with an agreement. It is only when one of the spouses unreasonably withheld his or her consent that an application will have to be made to the Court. In the case of a normal holiday, it is unlikely that the Court will refuse the application without a compelling reason.
If a parent, who is granted custody of a child, intends to leave Hong Kong permanently, she/he needs to make an application to Court and obtain an order allowing him or her to remove the child permanently from the territory. In case the other parent opposes such application, the judge will have to balance the child’s loss of regular contact with that parent against the liberty of the applicant parent (granted with custody) to reasonably choose where he or she wishes to live. In any event, the welfare and best interests of the child are paramount.
Our team at Hugill & Ip has extensive experience in dealing with Hong Kong family laws – so kindly get in touch with us to find out how we can help.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.