19 March 2013

Sole child custody: five points you should know

Rita Ku
Partner | Hong Kong

It’s not surprising arguments about sole custody are still heard in Hong Kong, as there is no set legal definition of the term here. The assertion by one parent that she or he should have sole custody of the child after divorce and separation creates friction.

It’s easy to see why fights break out over this. Mothers who are used to making decisions for their children often expect to do so after divorcing, and fathers want to ensure that they are not kept out of making decisions just because they are divorcing.

There are five things to keep in mind about child custody in Hong Kong. Firstly, the terms “sole” or “joint” custody make little practical difference.

Separating parents spend a good deal of time and money arguing over whether they should have sole or joint custody of their children. In practice, both parties will always have the right to be consulted over the important matters affecting the child, such as education, religion and health.

Secondly, the parent with sole custody will have the right of veto, but the non-custodial parent will always be able to challenge this in court.

There may be justification for sole custody if one parent wants to leave Hong Kong, and the country to which they are moving may need an order for sole custody to ease the administration there. Or, as in a recent case before the Family Court, a mother was awarded sole custody because there were medical problems with the child that the father refused to recognise. The judge wanted the mother to be free to make the decisions effectively.

Thirdly, joint custody is the usual order made by the Family Court, even if the court can see that the parents cannot communicate particularly well. This may be “aspirational”, but is in line with the more modern trend for joint parental responsibility prevalent in England and Wales, Australia and New Zealand.

It is recognised that the best interest of the child is served by both parents having an ongoing responsibility, despite their separation (and perhaps animosity), as a recent Court of Appeal case concerning a nine-year-old child determined.

The mother had tried to set aside a joint custody order because she could not face dealing with her ex-husband, but she failed.

Fourthly, care and control is the order the courts will make to decide where the child should live. Nowadays, there can be orders for “shared care and control”. In the most recent Court of Appeal case, the judge said that an order for generous access was effectively an order for shared care.

Fifthly, disputes over children are best resolved amicably. Experienced lawyers do their best to encourage discussion through mediation or direct talks between parents.

We often hear complaints that dad was never involved with the child before the divorce, or that mum uses access to the child to barter for maintenance, or one parent wants to introduce the children to a new partner too soon. Communication is always the key to moving forward.

These days we’re lucky to have a court system that encourages dispute resolution as a way of avoiding litigation over the children.

But it would really help if the government adopted the recommendations of the 2005 Law Reform Commission and replaced custody orders with a residence order and accepted, as a guiding principle, that parents have joint responsibility for their children. Until then, the sole custody saga is set to continue.

The article was originally published in South China Morning Post on 19 March 2013.

Category: Article