V. Matters affecting children
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.
In order to give a child maximum stability, in practice, it is usually in the interests of a child for the child to live in one parent's home and to visit the other parent on a regular basis ("visiting access").
However, such visits can, and often do, extend to a number of days or even weeks during school holidays.
In reality, where the circumstances warrant, it is possible for a child to spend half of his or her time in one parent's household and half in another parent's home. Parents are encouraged to reach amicable agreement , whenever possible, to avoid making costly application to Court.
If both parents want a joint custody, where both parents together make all the important decisions regarding their child's upbringing, the Court would grant a joint custody if it can be assured that the arrangement will work.
Joint custody is now generally encouraged as it is considered good for parents to realize that they both have a responsibility towards their child and their parental duties do not cease on the breakdown of the marriage. Obviously, no matter what kind of custody is granted, a high level of agreement and cooperation between the parties is encouraged and required.
A. What factors will be considered by the Court in awarding custody of a child to either or both parties?
In all matters relating to children in family proceedings, the welfare of the child is the first and paramount consideration for the Court. While each case will depend on its own facts , the Court would take into account all relevant factors which include:
- the preservation of the status quo;
- the ages of the parents and child;
- the personality, capability and character of the parents;
- the financial resources of the parents;
- the physical and mental health of the parents and child;
- the accommodation available to the child;
- the child's own wishes and views, if any;
- the benefit of keeping the siblings together with one parent;
- the religion and culture of the family;
- professional reports such as medical, school, or court welfare officer's reports (e.g. about the child's family relationship, living conditions, mental or health elements, etc.).
Note that the aforesaid factors are just factors commonly considered by the Court, they are not exhaustive.
Upon hearing all the relevant evidence, the Court, bearing in mind that the interests and welfare of the child is of prime importance, would balance the factors against each other, depending on the circumstances of each case.
Some important factors are further elaborated below:
1. Status quo
Many professionals especially child psychologists opined that it is in the best interests of a child, to avoid a disruption of the familiar life of a child.
If a child has already settled well with one of the parents and is used to and happy with his/her surroundings and lifestyle, the Court is unlikely to consider taking the child away from that parent unless there are other compelling reasons.
2. Main carer
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.
3. Child's wishes
While it is an important factor, it should be noted that children's views are not overriding. The overriding factor is still the welfare and the interests of the child.
Child's view will generally be heard and considered by the Court, but the weight to be given to such views would depend on the age and the level of understanding of the child concerned. The wishes of older children will play a material part in deciding with whom their custody will be granted.
Any views and wishes of the children must be ascertained with great care. This is usually done by an appointed court welfare officer.
One should avoid creating an impression that they are being asked to make a choice between their beloved mother and father. This would pose a heavy emotional burden on the child.
Though it is rather common, it is wrong for either parent to attempt to exert influence on a child regarding his / her view. Children's wishes are usually best expressed through a court welfare officer.
4. Keeping siblings together
To avoid any emotional trauma, it is regarded as desirable that siblings, in particular those who are nearer in age, should be kept together rather than being split between their parents. It is only in rare circumstances which, if it is considered best to do so, that split orders would be made by the Court. Even so, every effort should be made by the parties to ensure that the siblings can see each other regularly. Again, the damage caused by the separation of siblings when they are young should not be under-estimated.
5. 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.
6. Sex of the child
This is usually not a very important factor. However, this might have a bearing on the Court's consideration when all other factors are equal. For instance, statistics show that a girl about to go through puberty might fare better with her mother and a boy of the same age might fare better with his father.
7. 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.
B. My wife wants to apply for divorce and she plans to take our only daughter out of Hong Kong during the waiting period. Can I stop her?
If that is the case, you may consider instituting wardship proceedings in the High 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 been, removed from Hong Kong.
Once wardship proceedings have been instituted, the Court has very wide and far-reaching powers to make any order, including financial provision that is necessary to protect the interests and welfare of the ‘ward’ / the child. In cases where a child has been taken out of Hong Kong, the Court can order that the child be sought and found, seeking the cooperation and assistance of other relevant authorities such as the Immigration Department.
Wardship proceedings are an entirely different form of proceedings which can be issued irrespective of any divorce or separation proceedings. It can be started quite quickly by any interested party – which is not necessarily a parent.
If circumstances are justified, wardship proceedings could be commenced by the Director of Social Services, who is empowered to protect children.
The issuing of wardship proceedings immediately makes the child concerned a Ward of the Court .
Once a child becomes a “Ward of the Court”, this means that the Court has the custody of that child and every major decision regarding that child’s welfare must be referred to the Court by making application accordingly. This would incur costs and, subject to the caseloads of the Court, can be very time-consuming.
That child remains a ward of the court until the child reaches the age of majority, or until a special Court order is made to end the wardship. Wardship proceedings should not be instituted lightly, but only where there are good grounds to justify it.
C. My wife refuses to see me and let me know where our daughter is, what should I do? How can I prevent my spouse from snatching our child?
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. Deposit of travel documents at solicitor’s office supported with a solicitor’s undertaking not to release them without consent of Court or relevant parties
As aforesaid, wardship proceedings could be very costly and time-consuming, it should therefore not be instituted lightly.
If you are concerned about your child’s ability to travel, either on his or her own travel document or on the strength of the travel documents of your spouse, you can request that the relevant travel documents be deposited at a solicitor’s firm together with the solicitor’s undertaking not to release these travel documents without your consent or the Court’s consent. However, this option is not absolutely secure as it may not prevent your spouse from obtaining a fresh or duplicate travel documents without your knowledge.
3. 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.
4. 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 relevant parties in the return of those children to Hong Kong. For more details, please visit the Department of Justice’s webpage .
D. Can one parent take a child out of Hong Kong upon the grant of a custody order?
It is not uncommon that divorced couple fears that the former spouse would take the child 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 the opportunity of child's visiting access.
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 is not responsible for taking the child out of Hong Kong, AND the giving of a general undertaking by the parent (who will take the child out of Hong Kong) to the Court to return the child to Hong Kong after any fixed period spent abroad or at the end of any agreed period, or earlier if called upon to do so by the Court.
Disputes often arose between divorced couple over the division of holidays in respect of child access. Costly application would have to be made to the Court to resolve the disputes if the parties failed to come up with an agreement.
To save cost, upon the making of a custody order with the aforesaid (a) or (b) restriction specified on it, it is possible to file with the Court a general undertaking to return the child after any holiday period spent abroad.
This means that when you want to take the child out of Hong Kong, all you need to do is to obtain your spouse's written consent.
It is only when your spouse 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 unless there is good reason to do so.
If you believe that your spouse would object to you taking your child to overseas for holidays, you should inform your solicitor well in advance so that there is ample time for your solicitor to make the necessary application to the Court and to have an early hearing.
2. Permanent removal from Hong Kong
If a parent, who is granted with the custody of a child, intends to leave Hong Kong permanently for some reasons, that parent must make an application to Court so as to obtain an order from the Court allowing him or her to remove the child permanently from Hong Kong.
If 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 choose where he or she wishes to live. The Court will not usually interfere with the choice of the parent with custody, if his or her decision to move is a reasonable one. As said, the Court would have regard to the interests of the child, which is of paramount consideration.
E. My daughter has been living with my husband since I separated from him two years ago. How likely is that I will be granted custody of my daughter if I apply for a divorce now?
As said, it is essential to maintain the status quo of a child so as to avoid disruption of the familiar life of a child. If a child has already settled well with one of the parents and is used to and happy with his/her surroundings and lifestyle, the Court is unlikely to consider taking the child away from that parent unless there are other compelling reasons.
Therefore you are unlikely to be granted custody of your daughter in this circumstance unless you can present other compelling reasons. However, you may have generous access to (i.e. to see) your child as approved by the Court.
F. How is a child's maintenance (financial support) determined?
1. Types of claim for child maintenance
The parent with custody is entitled to claim for financial support for that child from the other parent, whether within divorce or judicial separation proceedings.
If, by virtue of the needs of the child, immediate maintenance for a child is required, an application for interim maintenance pending suit (i.e. a final settlement or hearing) can be made to the Court.
In such circumstances, the Court is empowered to make various interim financial orders, e.g. periodical payments, secured periodical payments, and a lump sum for a child at any time after the petition for divorce or separation has been filed and such an application is made. For details, please refer to Divorce > Financial matters > D. What kind of maintenance order (or financially related order) is the Court empowered to make?
The Court can also make other orders at different stages of the proceedings: (1) on or after the making of the divorce decree nisi; (2) within guardianship of minors proceedings and (3) withinwardship proceedings .
2. Age until which provision for child maintenance lasts
According to section 10 of the Matrimonial Proceedings and Property Ordinance , Court orders for periodical payments, secured periodical payments and a lump sum, etc can be made in favour of a child who is below 18 years old .
However, the ordinance further stipulates that payments under an existing order can extend beyond 18 years old if the child is or will be attending an educational establishment or undergoing some form of training, or if there are special circumstances which justify it (such as the child being disabled) or that make it appropriate to do so.
G. What factors will the Court consider in assessing the provision of child maintenance?
In accessing what financial provision should be made for a child, the Court shall consider all the circumstances of the case, especially the following matters:
- the standard of living enjoyed by the family before the breakdown of marriage;
- the financial needs of the child;
- any physical or mental disability of the child;
- the manner in which the child was being brought up and in which the parties to the marriage expected him or her to be educated;
- the financial resources and needs or obligations of the parties to the marriage;
- the any income, earning capacity (if any), property, or other financial resources of the child.
According to section 7 of the Matrimonial Proceedings and Property Ordinance , the Court is obliged to place the child, so far as it is practicable and just to do so, in the financial position in which the child would have been if the marriage had not broken down and each of those parties had properly discharged his or her financial obligations and responsibilities towards the child with the two considerations of:
- the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
- the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.
The aforesaid principle is easier said than done. In practice, most divorce cases would bring about a drop in their standard of living for all parties concerned, including the children. This is because usually there would be insufficient resources to maintain the previous lifestyle upon the break up of the family.
Other factors to be noted in relation to step children
As said, a ‘child of the family’ can include a child who is not the natural child of one of the parties to the marriage. Nowadays, given the increasing rate of divorce, there are many children who are living with a step-parent.
- whether that party (against whom the claim is being made) had assumed any responsibility for the child's maintenance and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility;
- whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own;
- the liability of any other person to maintain the child.