When parents separate or divorce, it is usually the children involved that are most impacted. Issues relating to young members of the family can cause tense disputes between the parents.
Custody disagreements are emotionally draining situations. It is common for parents who are splitting to struggle to reach an agreement about where/how their children should live and what access to children should be granted.
Section 19 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 confers power to the Court to order for custody and education of children affected by matrimonial proceedings. The Court will not declare a couple’s divorce valid until issues surrounding the children are resolved. Such declarations are often referred to as a “Section 18 declaration” which, as the name suggests, comes from Section 18 Matrimonial Proceedings and Property Ordinance.
We go through a series of FAQs about children custody and care and control.
Q1. What is “custody” and “care and control“?
Following the breakdown of a marriage or the separation of two unmarried parents, the Hong Kong Family Court will make specific orders related to custody, care, control and access to the couple’s children. Even if the definition of “care and control” is not specifically defined in the legislation, it commonly means organising and taking care of the day-to-day life of the children.
Orders for care and control are usually granted solely to one parent. While “joint care and control” orders are possible, normally by consent, they require good rapport and a strong collaborative effort between the parents.
Contrary to care and control, custody is rarely awarded to only one parent as the Court acknowledges the role of the parents to their children which should not be extinguished upon divorce.
Q2. What does “access” mean?
Access means the right of the children to see the non-custodial parent, or in the case of joint custody, the right of the child to see the parent without care and control. If the parties are able to arrange access arrangements between themselves, the Court will order that reasonable access be given to the non-custodial parent, otherwise access can be specifically defined, and in some circumstances it can be supervised. Custody orders terminate when the child reaches the age of 18 years.
Access arrangements can become a battlefield, as the custodial parent may be anxious about allowing the non-custodial parent to see the child. In the event of disagreements among parents over access arrangements, the Court would have to consider the circumstances and make an order accordingly.
Q3. What can be considered typical visitation schedule options?
Planned visitation usually accounts for about 20~30% of the total parenting time, meaning the time which excludes time spent at school and other educational day care activities. Each situation is different, but common examples of visitation rights can include overnight stays, extended visits during long school holidays, such as Christmas and summer (that may vary between two and six weeks), birthdays and family events.
Q4. What important considerations need to be made?
It’s crucial to that a regular visitation schedule that fits the entire family is agreed, in particular if the matter involves very young ones or if the separation is relatively recent. Routine creates new habits and a new sort of stability for children.
In most cases, we advise to start with a less ambitious schedule that all parties can agree upon and then build it from there. It might feel uncomfortable at the beginning, but it’s important for children to spend time with both parents, even when they have decided to part ways. It is vital for both parents to work together to create new habits for their children, so that the children can adapt to their new family situation.
Consistency and flexibility should be the aim. Emergencies, last-minute schedule changes, and work-related issues will surely happen, but these can be reasonably managed by flexible arrangements. However, changes in plans should not become constant and erratic. Both parents need to be flexible and guarantee the well-being and development of their children, putting their own needs and egos aside. It is often difficult to build effective communication among parents who are going through divorce when they lack trust and confidence in one another.
Q5. What’s the difference between “care and control” and “access” to children?
Usually care and control of the children is awarded to one parent, while the other parent gets the right of access. Care and control mean 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, following an order made by the Court.
Q6. How often is sole custody granted?
Not very often, in fact Courts generally believe that the well-being of children usually includes a healthy relationship with both parents. However, there may be justification for “sole custody”. For example, if one parent wants to leave Hong Kong with the children and the country to which they are moving needs an order for sole custody to ease the administration process.
Q7. When is wardship considered by the Court?
“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.
Q8. What if there is a risk of one parent taking the child out of Hong Kong?
It is not uncommon that separated or divorcing couples are concerned about the ex-spouse depriving him/her access to children by taking them out of Hong Kong, either permanently or on holiday without the other parent’s advance notice.
Sometimes 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 they obtain Court approval or written consent from the other parent. They will also have the obligation to return the child to Hong Kong after having spent the agreed time overseas.
Q9. Can a parent stop the other from visiting his/her children?
Typically, the non-custodial parent has the right to reasonable visitation, but Courts may limit or stop visitation rights. This will only occur when there is a risk that visitation might hurt the children’s physical and/or mental health.
Visitation rights are often stopped due to cases of domestic violence and abuse. “Molestation” has been widely interpreted by Hong Kong Courts to cover any conduct which can be regarded as a degree of harassment that requires intervention from the Court. Whilst violence is molestation, no physical violence is required for the Court to deem an action molestation.
The Court can grant an injunction against molestation of the spouse or children pursuant to Section 3 of the Domestic and Cohabitation Relationships Violence Ordinance, Cap.189.
Q10. How does the Court get involved?
The parent who is refusing to allow the other parent to see the child or fails to follow the terms of a custody order, could face contempt charges. The parent missing out on visitation can file a Court order stating that the other parent is preventing visits.
Matters concerning children are of paramount importance to the Court. The Court is ready to make any order that it deems fit to protect the children and it has wide discretion. The parents’ conduct and attitude towards issues surrounding the children will be heavily considered, as the Court will not want to see either parents using the children as a bargaining chip in their divorce. Parents should seek advice as early as possible when divorce is contemplated.
Q11. What extra piece of advice you would give to parents who are going through custody and child access issues?
In many cases, a “co-parenting coordinator” can be someone who helps to get to a positive outcome for all parties involved. He/she is a neutral third party who serves a separated or divorced couple as a decision maker and a facilitator of communication.
Moreover, co-parenting coordinators will help parents not only find solutions on immediate issues, but also establish a method by which they can learn how to resolve future issues by themselves.
Many couples find co-parenting coordinators helpful in transitioning their roles from couple to co-parenting individuals, focusing their goals on the children’s wellbeing and development.