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Child Custody

During divorce, both parties need to reach consensus about care and control over the children, visitation arrangement, financial support, otherwise it will be decided by the court.

For child custody, the mother and father share an equal status, however when the couple gets a divorce, the court re-arrange the rights of the mother and father in the custody order, including custody, visitation rights as well as alimony.

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Sole custody or joint custody?

Mother or father?

In general, child custody refers to a court order for care and control over the child / children. The parent who is given custody after divorce shall be responsible for the daily care of the child and for making routine everyday decisions about his or her welfare. Joint custody may also be given.

What factors will be considered by the Court in awarding custody of a child to either or both parties?

Maintain the status quo

Naturally, a child will develop a strong bonding with his or her main caregiver. The child may be dealt with a blow, whether emotionally or otherwise, if he or she is separated from his or her close main carer or guardian suddenly. The damage done should not be under-estimated. It is therefore considered desirable for a child to stay with the parent who has hitherto been his or her main caregiver, so as to maintain the status quo.

Age of the parties and the child

The age of the parents and the child are also a material factor to be considered. The Court is more likely to award custody of babies and young children to the mother. If one parent is particularly old, it is likely that the Court will take this as a factor that would reduce his or her ability to care for the minor or child.

Capability of the parents to fulfil the needs of the child

As said, each case depends on its own facts. The same applies to the growth and upbringing of a child, whose needs and ability varied from child to child. Thus, a child's needs will be considered and balanced against the health, capability and resources of each parent. The misbehaviour of a party, e.g. adultery does not necessarily affect or reduce his or her ability as a parent. After all, the prime consideration for the court is the welfare of the child.

Primary caregiver

Often children will be heavily dependent on their primary caregiver or guardian, and the harm associated with a sudden separation, which can cause emotional problems or other difficulties, cannot be underestimated. It is therefore preferable that the child continues to live with the parent who has always cared for them, thus maintaining the status quo.

Divorce Proceedings

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If both sides have reached a consensus on the child custody and alimony related issues, it takes six to seven months at the soonest to obtain a interim divorce order.

Divorce Agreement

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Divorce Agreement (Petition): The petitioner must prove that he/she has a reason (or a basis) for believing that the marriage has come to an end, i.e. “the marriage has broken down irretrievably” as defined by the court.

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Managed Divorce Service Fees

Managed divorce services include:

  • We would be able to help you with child custody, alimony as well as property division issues via face-to-face consultation meetings so that your application can be handled in a time-saving, efficient and professional manner.

Other managed divorce services available:

  • HK-China Cross-border
  • Divorce Settlement
  • Notice of Separation
  • Manage application for custody, care and control of the child(ren)
  • Manage application for financial support which includes family assets, properties and monthly alimony payments
  • Illegitimacy
  • Recover or modify alimony Restraining order
  • Explaining the assessment of general separation/unreasonable behaviour
  • Assessment of children’s living expenses

It takes five months to complete all procedures for an uncontested divorce (temporary divorce order can occur within three months) Hearing Advisory Service 

Frequently Asked Questions (FAQs)

How does the court determine child custody in a divorce?

In most cases in Hong Kong, the woman is usually a housewife taking care of the children full-time, so after the divorce, the court will decide that the mother continues to take care of the children to maintain the status quo for the children. The decision will not be affected by the financial sources and income, and the court will usually ask the man to pay the maintainence for the children.

Yes.

The court will consider the best interests of the child as a starting point, e.g. the person applying for guardianship is the primary caregiver of the child, e.g. grandparents.

For example, the person applying for guardianship is the primary caregiver of the child, e.g. grandparents, while the birth parent is not suitable for becoming their guardian, e.g. the parent is in prison or has passed away.

However, in some cases, if it appears to the court that the guardianship applicant is also unsuitable, the child may be placed under court supervision.

According to section 7 of the Guardianship of Minors Ordinance, the person appointed as guardian may automatically assume guardianship upon the death of the appointing parent or guardian in the following circumstances:

  1. the appointing parent or guardian held a custody order for the minor prior to his or her death;
  2. or The parent or guardian making the appointment lived with the minor before his or her death, and at the time of his or her death, the minor had no surviving parent or guardian.

When and how appointment of guardianship takes effect?

Under section 7 of the Ordinance a person appointed by a parent or guardian as the guardian of a minor automatically assumes guardianship over the minor upon the death of the appointing parent or appointing guardian if:- the appointing parent or appointing guardian has a custody order over the minor immediately before he or she dies; or the appointing parent or appointing guardian lived with the minor immediately before dying AND the minor does not have any surviving parent or other surviving guardian when the appointing parent or appointing guardian dies.

In all other cases, a person appointed as a guardian may, after the appointing parent or appointing guardian dies, apply to the court to assume guardianship over the minor.

The GMO governs court proceedings relating to the custody and upbringing of children. Under the GMO the welfare of the child in question is to be the first and paramount consideration of the courts. Under section 3 of the Ordinance, in any proceedings before any court relating to the custody or upbringing of a minor or the property of a minor, the best interests of the minor are the first and paramount consideration. Due consideration should be given to the views of the minor where it is practical to do so having regard to the minor’s age and understanding and to available information from the Director of Social Welfare.

The rights and authority of the mother and father of a child are equal. Where the child is born out of wedlock however, the mother has all the parental rights and authority. Even so, an unmarried father may be granted some or all of the rights and authority he would have had as a father had the child been born legitimately (that is, had he and the mother been married).

The court considers that the child is not the property of the parents and that it is in the best interest of the child for the siblings to grow up together or in the first place. If there is a dispute over custody, the court will appoint the Social Welfare Department to conduct a home visit and write a report for the court’s consideration, after which the court will make a decision based on the welfare of the child.

However, the court will rule that it is in the best interest of the children that the siblings live and grow up together after the parents divorce.

A number of steps may be considered:

1. Wardship Proceedings

First, where the circumstances warrant, the child could be made a ward of court as described above.

2. Prohibition Order

If the deposit of the relevant travel documents as security is not feasible or not secure enough, you can consider applying for a prohibition order, which can be made within the divorce or separation proceedings. This is an order prohibiting the removal of the child from Hong Kong or out of your custody, care and control. If either wardship proceedings or prohibition order is involved, your acting solicitor should immediately notify the Immigration Department by serving it with the prohibition order or wardship proceedings.

The Immigration Department would then be obliged to notify all ports and airports and to stop or prevent the relevant child from leaving Hong Kong.

3. Child Abduction and Custody Ordinance

In order to avoid the harmful effects of wrongful removal or retention of children in foreign countries, the Child Abduction and Custody Ordinance (Cap. 512 of the Laws of Hong Kong) has provisions to protect the interests’ of the relevant people.

The Department of Justice would also co-operate with the Contracting States of the “Convention on the Civil Aspects of International Child Abduction” (which have the convention relationship with Hong Kong), and would assist the rele

Joint custody means that both parties have custody of the child and generally have joint decision-making power over important decisions about the child’s life and development, such as which school to attend, where to live, and who will take primary care of the child.

However, joint custody of children also means that one parent will be responsible for the care and control of the children and the visitation rights of the other parent. Sole custody favors one parent over the other, while non-custodial parenting only allows for regular visitation.

Theoretically in a situation where both parents have an income, both parents must jointly pay for the child’s living expenses, and it is permissible if the parties agree that one of them will pay in full and the court is satisfied that this arrangement is the best and is satisfactory to the court.

Visitation is in the interests of the children as well as the divorcing party, and no child should be deprived of their interests, so the other party cannot be denied effective visitation at will.

Unless there is a threat to the safety of the child, such as a history of domestic violence, or if the visitor’s behavior is unusually corrupt, the court finds that visitation is not appropriate.

There are three general categories of visitation times: reasonable visitation, free visitation and defined visitation:

  1. Reasonable time is defined as any time within a reasonable time of life when both parents can coordinate visitation, e.g., if the child is sleeping late at night or cannot leave school during school hours, this is unreasonable time.
  2. Free visitation is a much broader definition and is not generally recommended as the parties often go to court to dispute what constitutes free time.
  3. Defined visitation: Defined visitation generally sets out the days of the week, the time period, how the parties hand over the children, and the allocation of the four long holidays each year.

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