It is important to bear in mind that it is the child’s right to have a relationship with both parents. In a divorce or a separation, when the parties have children, the terms “custody” and “care and control” are used to refer to where the child will live and who will make important decisions regarding the lives of the child. These orders are put in place bearing in mind what is in the best interest of the child and will vary from family to family.
Custody
“Custody” refers to the guardian or parent’s ability to make major decisions for the life of the child. These decisions concern for instance which school the child will attend, whether the child will receive a religious upbringing, what extracurricular activities the child will engage in, or what medical treatment the child will receive. These are the important decisions that will have a profound impact on the child, but which also do not require day-to-day decision making.
The court in Hong Kong can make an order for joint custody or sole custody,
Typically, the Family Court will grant joint custody to the parents, unless there are reasons not to. It is a child’s best interest for both parents to continue to be involved in the child’s upbringing and jointly making the important decision relating to a child.
The court may order sole custody in situations where the parents are unable to cooperate, and a joint custody order will lead to an increased conflict which could harm the child. Even where the parents are unable to cooperate, the court are entitled to presume that competent, loving parents are able to work together in the interest of the child. Therefore, even in situations where the parents display a high level of conflict, the court may still order joint custody on an aspirational basis.
In the event that the court does grants sole custody to one parent, the other parent still retains the ability to have an opinion in the upbringing of the child. As such, the non-custodial parent retains the right to know and to be consulted about important decisions. In the event of a disagreement, the non-custodial parent can always seek assistance from the court.
Care and control
The expression “care and control” refers to the day-to-day care arrangements for the child and the responsibility for caring for the child’s daily needs. The parent who has “care and control” of the child is in charge of everyday decisions such as, what time the child wakes up, what the child has for breakfast, or what time the child goes to bed. In practice, this means that the parent who has “care and control” is the parent with whom the child resides with.
Depending on the age of the child and the family’s lifestyle, it is common for the court to make orders granting sole care and control of the child to one parent, with access to the other parent.
The family court can also make an order for shared care and control, where the child lives with each parent, for instance on alternate weeks although this very much depends on the parents ability to communicate and to work together. Shared care arrangements are usually made when the parents have been able to demonstrate a high level of co-operation.
Access
Bearing in mind that it is the child’s right to have a relationship with both parents, “access” refers to the right for the parent who does not have care and control to see and spend time with the child. There are a variety of access orders which the court can make, ranging from orders where the details of access are left to the parents to determine to where there are specific directions on the exact day, time and length of access. The orders that can be made again, will depend on what is best for the child and depends on each family’s situation.
Other access orders that can be made are mid week access, staying access, holiday access, supervised access, telephone / video call access. It is best to consult a family law specialist to advise on the different types of orders and how they may or may not be appropriate for the child.
What factors will the court take into account when deciding the arrangements for the child?
The court’s primary consideration is the welfare and interest of the child. To determine the welfare of the child, the court can refer to the non-exhaustive “welfare checklist”. This list originated in the UK and in Australia, and although it does not yet form part of Hong Kong legislation, it is regularly adopted by the Family Court as an aide de memoir.
The welfare checklist recommends that judges look at the following factors when deciding what is in the best interest of the child:
- the ascertainable wishes and feelings of the child concerned (considered in the light of the child’s age and understanding);
- the physical, emotional and educational needs of the child;
- the likely effect on the child of any change in the child’s circumstances;
- the child’s age, sex, background and any characteristics of the child’s which the court considers relevant;
- any harm the child has suffered or is at risk of suffering;
- how capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;
- the practical difficulty and expense of the child having contact with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with his or her parents on a regular basis;
- the rights of the child;
- the range of powers available to the court in the proceedings in question;
- and the general principle that any delay is likely to prejudice the welfare of the child.