Category Archives: Children Arrangements

How To Prepare For Mediation

One of the most cost-effective ways to resolve your divorce is through mediation. In order for mediation to succeed, both parties need to be willing to come to the table willing to discuss all issues and with a compromising spirit.

In an earlier article published on www.hongkongdivorce.com, our special contributor Shanna Quinn, a professionally trained mediator, outlined family mediation and what it entails in Hong Kong.

In this article, we will discuss three (3) key ways to succeed in divorce mediation and how you can come out of mediation with a sense of gratitude and accomplishment.

1. Keep Your Emotions Out: It is not uncommon for spouses to use mediation as a vehicle to lay out emotions about all the wrongdoings that had occurred during the marriage. Whilst it is important to express your opinion and communicate your feelings during this complicated season of your life, the purpose of mediation is to resolve issues and move forward, not to rehash the past. By keeping your emotions out of the mediation, you are recognizing that a divorce is simply a business transaction, whereby you and your spouse are outlining the legal terms to dissolve your marriage. Thus, do your best to keep your emotions out of the transaction and the path towards resolving your divorce will be a lot more seamless.

2. Be Willing To Compromise: In order to move forward in resolving your divorce, each spouse has to be willing to compromise. In a divorce, there are no real “winners” or “losers” because at some point each of you will walk away without getting everything that you had wished for. There has to be a certain amount of compromise in order to resolve your divorce. To successfully compromise, you will need to be willing to hear the other side and the reasons behind their position. Be willing to listen and empathize with your spouse and you may soon realize that your spouse may also extend the same courtesy to you as well. A settlement meeting will provide you and your spouse with a platform to negotiate and figure out a plan that you both are willing to accept.

3. Ask Questions, Take A Break, Ask For Time: Mediation will provide you with an opportunity to hash out details of your divorce without the pressure of the Family Court issuing orders and making decisions for your family. If you are in mediation and you do not understand the legal jargon or terms being stated, be sure to speak up and ask questions. If you are represented by a solicitor or barrister, do not be afraid to stop the meeting and ask your solicitor or barrister to explain everything to you. No question is irrelevant as your understanding of what is being discussed will affect your future and your family’s future. If you need a break and need time to process what is being negotiated or offered, ask for this time and each person in the meeting should respect your request for a break. You are entitled to be involved throughout the entire process and you can only be involved if you understand what is being discussed and negotiated.

While in some cases one mediation is sufficient to resolve all of your issues, some divorces require multiple mediation meetings to finalize outstanding issues. If your matter requires several mediation meetings, it is important to note that any prior meetings are not without benefit since they are ALL stepping stones to resolution.

Global Overview of Child Custody in Divorce

This article is by Caroline Y Choi, Registered Foreign Lawyer (California, USA) at Oldham, Li & Nie

Entertainment journalists are not lacking for work, as juicy gossip about celebrity breakups always seem to make headlines across the globe. It is no secret that many celebrities are based in Hollywood, California and that is why many divorce proceedings are initiated there. So how does child custody laws differ across the globe? California law, like most states in the U.S., encourage joint legal and physical custody of children. However, not all jurisdictions across the globe follow these same standards. As a California attorney, now practicing as a Registered Foreign Lawyer (California, USA) in Hong Kong, I have discussed the differing child custody laws between California and Hong Kong with Stephen J. Peaker, head of the Family Law Department at Oldham, Li & Nie (OLN) and a fellow of the International Academy of Family Lawyers (IAFL). To begin, let’s take a look at what joint legal and physical custody means in California and why it is so important for the health of families of divorce:

1. California Favors Joint Legal and Physical Custody: Joint legal custody means both parents agree to share in the rights and responsibilities to make decisions relating to the health, education and welfare of a child. Joint physical custody means both parents agree to equally share in the physical care of a child. California law encourages divorcing parents to share responsibilities in both the legal and physical custody of a child because parents who share this responsibility are ultimately working towards the “best interests” of a child. The ultimate goal is to ensure the health and success of the child. Many other countries, including England, Scotland, Australia and New Zealand encourage this model of joint parental responsibility and as family law practitioners, it is our hope that other countries will follow this model. Co-parenting, while difficult at times, encourages healthy relationships when a family unit is broken.

2. Legal Custody, Physical Custody & Control In Hong Kong: In Hong Kong, parents are usually given joint legal custody, but with physical care and control to one parent and with reasonable access to the other parent. This is currently done without reference to joint parental responsibility, which fails to encourage separated parents to act collaboratively in the best interests of the child. When joint custody, care and control is given to one parent, too much authority is given to one individual which can sometimes result in the reasonable access parent having less contact with the child and a diminishing role over time despite having joint custody. This issue is especially important in Hong Kong because many local citizens have dual nationality (following the transfer of sovereignty in 1997 from the United Kingdom to China) and many foreign nationals live and work in Hong Kong. When these citizens with dual nationality divorce in Hong Kong, they are in a system where the best interests of children are the primary focus, but where the law is historically the same law as the United Kingdom had prior to the enactment of the 1989 Children Act. Fortunately, Hong Kong courts are making great strides and moving forward towards a more child-centered model. This is good news for parents who wish to continue to nurture a healthy relationship with the children after divorce.

3. Steps Towards Joint Parental Responsibility Focus: The Law Reform Commission of Hong Kong has published a report on “Child Custody and Access” which has been a point of discussion since March 2005. The primary focus of the 72 recommendations in the report is to emphasize continuing responsibility of parents towards their children even after divorce. This is already evident in Hong Kong courts, which are now making more orders for “joint custody” which divorcing couples in California are already accustomed to. Essentially, this new reform is significant because when parents decide to no longer remain as life partners, the children are no longer deprived of having the love and care from both parents.

4. Input from Children: In custody proceedings in California, a child may be given the opportunity to speak his/her mind about preference as to whom he/she would like to live with. Many judges will consider a child’s preference if the child is at an age of maturity and emotion. Hong Kong’s move towards a child-centered focus will now allow a child’s preferences to be brought into the system. Similar to the appointment of minor’s counsel in California, Hong Kong already has a system for separate representation of children via the Official Solicitor. Stephen Peaker praises these reforms and the role of the Official Solicitor as this is an important matter for children and their families. Mr. Peaker anticipates the Hong Kong government will do their best to bring this to the table as soon as possible. Since 2015, the Hong Kong government and the Chief Justice have promoted the introduction of the law as soon as possible, which is a very welcome move.

No matter where you are located across the globe, the focus in a divorce involving children should always be the “best interests” of the children. Even a child-centered model (as seen in California) does not work without the full cooperation of parents in divorce. Parents can take steps to encourage successful co-parenting with 1) regular communication; 2) seeking assistance from a professional when communication is an issue and 3) avoid court litigation because a court cannot always make the best decision for you and your family. Parents working together is always the best option for a healthy future.

*This article was originally published in The Huffington Post and can be found here.

How Is Child Maintenance Calculated?

Unlike spousal maintenance, the Court has wide discretion to allow maintenance for children at anytime prior to the decree or even if the proceedings are dismissed.

Generally speaking, in all matters relating to children in family proceedings, the welfare of the child/children is the first and paramount consideration of the Court. While each case will depend on its own facts, the Court, in making any determination with regard to financial orders for a child will take into account all relevant factors, which include:

the financial needs of the child;
the income, earning capacity (if any), property and other financial resources of the child;
any physical or mental disability of the child;
the standard of living enjoyed by the family before the breakdown of the marriage;
the manner in which the child was being (and in which the parties to the marriage expected the child to be) educated;

The Court will generally endeavour to exercise its powers so as to place the child, so far as it is practicable (having regard to the above factors) in the financial position in which the child would have been if the marriage had not broken down and each of the parents had properly discharged his or her financial obligations and responsibilities towards the child. This will be different for every case depending on the parties’ standard of living during marriage, and the financial means of each parent.

Children’s maintenance will usually involve consideration of all expenses that may be incurred by them on a daily/monthly/annual basis, such as food, their share of housing expenses, education, extra-curricular activities, clothing, gifts, and holidays. A child’s financial needs will be interpreted on a generous basis by the Court.

Once the Court arrives at an appropriate figure to reflect the monthly expenses of the child, this will be made into an Order, such that the paying spouse must pay that amount every month going forward, usually until the child reaches 18, or finishes tertiary education, depending on what is prescribed in the Court order.

It is always open to either parent to apply to the Court to vary maintenance of a child (either to increase, decrease or suspend the amount) if there has been a change in circumstance, e.g. the decrease of income of the paying party, or the increase of a child’s expenses. The Court will then consider the matter afresh and revise the sum of maintenance if it sees fit to do so.

Aside from maintenance, the Court may, on an application by either of the parents (or guardian) who has custody of the child – may make any one or more of the following orders (having regard to the means of the paying parent):

a payment of a lump-sum to the applicant in one amount or by instalments for the immediate and non-recurring needs of the child.
transfer of such property to which either of the parents is entitled or
settlement of such property, to the child.

These other forms of financial maintenance for children are covered in separate articles on hongkongdivorce.com

Moving Forward: Making Mutual Decisions After A Marriage Or Relationship Breakdown

By Special Contributor: Shanna Quinn

One of life’s most stressful events is separation from a spouse or partner. Although some conflict over parenting and financial issues after the breakdown of a relationship is to be expected, it is not inevitable for disputes to be resolved in a Court of Law.

What Is Family Mediation?

Family mediation is where a professional, trained, impartial mediator helps couples, following a separation, explore options and negotiate a settlement acceptable to both parties.

What Issues Can Mediation Assist With?

Issues that can be assisted by mediation include, but are not limited to:

CHILDREN

Living and care arrangements for children
Education
Relocation

FINANCES

Division of assets including real property, investments, savings, pensions, debts, inheritance, probate matters and house contents
Child maintenance
Spousal maintenance

DIVORCE

Deciding on the divorce process

Benefits Of Mediation

Decisions are made by the parties themselves – not by lawyers or by a court
It is a faster and cheaper process, avoiding lengthy court proceedings
The mediator is neutral and impartial
The process provides an informal, confidential and more personalised space to discuss and resolve issues
What is said in a mediation is said on a ‘without prejudice’ basis, i.e. whatever is said cannot be used as evidence in a Court. Parties can speak candidly, make and consider concessions and compromises without being worried that they will be used against them later in Court
Terms of a mediated agreement may be made into a binding consent order, enforceable at law
It can be voluntary or court ordered
The process is flexible in terms of whether the parties remain together in the one room or are in separate rooms
Legal representation is optional
Mutual decision-making encourages ongoing cooperation and helps lower hostility

Who Are The Mediators?

Mediators generally have legal or social science qualifications and substantial professional experience and have undertaken specialised training. In Hong Kong there is the choice of English, Cantonese or Mandarin speaking mediators. Most mediators have been accredited by the Hong Kong Mediation Council. In Hong Kong parties have the benefit of being able to choose a mediator, having regard to professional background and experience, cultural and ethnic background, gender and language.

Do I Need A Lawyer?

Legal representation is optional but mediators will encourage parties to seek legal advice prior to signing the Agreement. While the mediator can provide legal information to the parties and reality test parties’ options and their likely consequences, the mediator will not give the parties legal advice.

If lawyers are present it is usual that they adopt a less adversarial and more conciliatory approach in the mediation. If the lawyers do not attend the mediation, parties are free to speak with their lawyer at any time.

How Long Does It Take?

Generally a mediation can be organized within two to three weeks, if not sooner. Factors that impact on the length of time it takes to reach settlement include:

Whether the parties have made full and frank disclosure, particularly with respect to financial matters
The level of hostility between the parties
The number of issues to be resolved
The complexity of the issues to be discussed
Timeliness of legal advice

What Is The Process?

While all mediators have their own personal style the process is uniform and involves:

Pre-Mediation

The mediator receives the referral
Relevant information is given to the mediator
The mediator has a confidential, separate preliminary meeting with each party to obtain relevant history, identify the issues and determine the best process, i.e. whether the mediation will involve joint and/or separate meetings with the mediator

The Mediation

Mediators adopt different models, i.e. some mediators prefer to have the preliminary meetings and first session on the same day. Other meditators prefer to separate the processes. Some mediators prefer half day or full day sessions while others operate on an hourly basis.

The Mediation

The mediator and parties together identify parties’ respective concerns and issues for discussion
An agenda is created to ensure all issues are addressed and prioritized
Relevant information is shared
Proposals are discussed and options are explored and reality tested
Parties reach a mutual agreement

Post Mediation

If the Agreement reached in mediation has not already been reduced to writing and signed, the mediator will prepare the written Agreement
Parties are encouraged to seek legal advice prior to signing the Agreement
Typically, the Agreement is made into a Consent Order, which is prepared by the lawyers and filed in Court.

About Shanna: Shanna Quinn has built her career on helping individuals and families navigate disputes and conflict in a fair, equitable and conciliatory manner. Her practical approach to your situation, combined with her extensive experience as a Barrister, Mediator and Forensic Social Worker can add significant value to your case.

Shanna has been involved in highly complex and sensitive cases involving family breakdowns, relationship disputes, child protection and domestic violence orders. Shanna is able to quickly comprehend her clients’ needs, is adaptive and can deliver valuable, practical and prompt legal advice, mediation and training.

Custody Arrangements For Children In Hong Kong

As parents, there is a shared responsibility for children. Courts in Hong Kong encourage a shared duty towards raising children and, where practicable, for parties to try to communicate with one other and make every effort to agree how their children will be raised.

It is the law that a child has a right to regular personal contact with both parents unless there is a very good reason to the contrary (for instance, the Court may deny contact if it is satisfied that the child’s safety is at risk). Denial of contact is very unusual and in most cases contact will be frequent and substantial.

Experience suggests that Court imposed orders are not as effective as agreements voluntarily made between parents. It’s always highly beneficial, for both the children and their parents, if a shared parenting approach can be adopted. This allows for continued communication and cooperation in the parenting of the children to facilitate a healthy and balanced environment for the children’s development.

An agreement may take time to figure out, but the assistance of legal advisors, mediators or social workers, can usually facilitate open dialogue between parties and greatly help parties to reach a workable arrangement in the end.

If the matter cannot be agreed and must go to Court, then it is important for the parties to know that, generally speaking, in all matters relating to children in family proceedings, the welfare of the child/children is the first and paramount consideration of the Court.

While the ultimate decision in each case will depend on its own facts, the Court will be generally mindful of the following factors:

1. the preservation of the status quo;

2. the ages of the parents and child;

3. the personality, capability and character of the parents;

4. the financial resources of the parents;

5. the physical and mental health of the parents and child;

6. the accommodation available to the child;

7. the child’s own wishes and views, if any;

8. the benefit of keeping the siblings together with one parent;

9. the religion and culture of the family;

10. 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.).

Custody, Care And Control, Access And Supervised Access

Court orders with respect to the children of the family will involve granting ‘custody’ ‘care and control’ to one or both of the parents, and perhaps also deal with access/supervised access depending on the facts of the case.

Custody refers to the right of a parent to make the larger decisions in a child’s life, e.g. their education, their healthcare, their religion.

Care And Control generally means the more mundane, day-to-day care of the child, e.g. what they eat, what they wear, etc. The child will live with the parent to whom care and control is granted.

It is common for the Court to order joint custody (i.e. both parents have custody of the child) with care and control to one parent. Under this order, both parents are the decision makers for the major decisions concerning the child. Hence both parents should communicate with one another and reach a consensus when making key decisions. This gives them an equal say in the upbringing of the child, although the child may reside primarily with one parent the majority of the time.

It is to be emphasized, however, that even if only one parent is given custody, that parent is not thereby given an absolute and independent authority to act without further reference to or input from the non-custodial parent. A non-custodial parent has the right to be consulted in respect of all matters of consequence that relate to the child’s/children’s upbringing. While the right to be consulted does not include a power of veto, it is nevertheless a substantial right. It is not merely a right to be informed, it is a right to be able to confer on the matter in issue, to give advice and to have that advice considered.

Access may be given in lieu of care and control. It allows the parent to whom care and control is not granted to spend a certain amount of time with the child. This may be supervised by a third party or not, depending on the decision of the Court. The amount of time may be stipulated with whatever degree of particularity (i.e. liberal or reasonable access, which is fairly open ended, or access specified down to the number of hours on a particular day of the week), the Court may feel necessary, depending on the circumstances of the case.

Ultimately, the Court will look to the welfare and best interests of the child in determining the amount of access time to be given if the same cannot be agreed between parties. Examples of access periods include weekday access, weekend access, school holiday access and public holiday access.

Ideally, it is best if there can be both joint custody and shared care and control between parties, but the Court will only make this order if it feels it is in the best interests of the children. A high level of cooperation is necessary for a joint custody and shared care and control order to work. The Court is therefore unlikely to grant an order for shared care and control if the divorce is extremely acrimonious and the parties cannot cooperate.

If the parties have joint custody and shared care and control, Parent A may have care of the child/children from Monday – Thursday (i.e. the child/children would reside with Parent A on those days), and Parent B would have care and control of the child/children from Friday – Sunday.

If the parties want to change arrangements involving the children, make sure the other parent agrees. If you cannot agree, go to mediation or try to use a parental coordinator. The final option is Court.

If there is a Court order in place, parties must do what the Court order says, even if they don’t agree with it. If the parties want change the arrangement prescribed in the Court order and cannot agree to do so between themselves outside of Court, then they must apply to the Court to have the order varied or discharged.

Be sure to speak with your solicitor on issues related to children so there is no confusion and you make the most informed decision for you and your family.

How To Prepare For Mediation

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