Category Archives: Children

Divorce and Children’s Welfare

Emotions run high in divorce, particularly when children are at stake. When parents are involved in a litigious battle over children, intense emotions of a parent dealing with change and loss may cloud his or her ability to separate emotions from the needs of a child. To deal with this reality, courts look to the welfare of a child when making orders regarding children and their future. The goal of the welfare of the child is the well-being of a child’s mental health, security, happiness and overall emotional development for future success. Often, the welfare of a child is closely intertwined with a close, loving and consistent relationship with both parents.

Ideally, the goal of all parents in divorce should be the best interests of a child. However, this is not always possible and this is when a court will step in to make these important decisions.

How Do Courts Determine The Welfare Of A Child?

In the United States of America, the welfare of a child is similar to the “best interests standard” where the courts will look to several factors when determining what is in the best interests of a child. In Hong Kong, there is no “best interests” standard per se. While there is no formal standard in place, glimpses of the standard are coming through Hong Kong court decisions. And the good news is that the standard is becoming embodied in a “welfare checklist” in a children’s ordinance bill which is currently under discussion and consideration. The “welfare checklist” includes questions the court will consider when making orders such as: the views of a child, the child’s physical, emotional and educational needs, family violence and the capability of a parent to meet the child’s needs. Keith Hotten, a barrister, mediator and matrimonial law professor in Hong Kong says “[The new legislation] brings Hong Kong into the modern world. The point of the new legislation is to bring focus onto parental responsibility, which is essentially joint custody.”

In Hong Kong, the welfare of the child is of paramount consideration when courts make decisions with respect to children. The welfare of the child is fact specific to each and every case. It is a broad standard, which is valuable because the court will look at many factors before making any major decisions regarding a child. Some factors the court may consider include the following: 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, and if the child is at an appropriate age and maturity; the benefit of keeping the siblings together with one parent; the religion and culture of the family; and also professional reports such as medical, schooling or the court’s social welfare officer reports. It is important to note that this list is not exhaustive and are only a guideline of some of the factors the courts will take into consideration when considering the welfare of a child. Many times, the court will consider any and all factors it deems valuable in making an informed decision regarding the welfare of the child.

A Parent’s Role And A Child’s Best interests:

In a divorce, it is of utmost importance that parents consider what is in the best interests of their child when making decisions for the family post-divorce. It is also important for parents to be mindful of the fact that their actions will weigh heavily on a child, including behavior during the divorce. When it comes to separation and divorce, it can easily slip into a contest of which parent is acting more in the “best interests” of their child.” To avoid this type of conflict, parents should talk together and/or consider a parenting coach or mediation to assist when communication with each other is becoming difficult. A mediator or parenting coach can assist parents with effective communication and provide individuals with tools on how to communicate, think reasonably and rationally and manage emotions during a very difficult transition. Parents should also ask themselves key questions before making any major decisions such as: “How will this impact our child’s relationship with the other parent? How will this impact our child’s emotional and mental well-being? How will our child feel towards me in the long-term, if I reduce contact with the other parent?”

Overall, parents who work together and make the best decisions for their child are better off than when a court imposes an order on the family. With that goal in mind, look for a parenting expert or coach in Hong Kong. There are also many valuable resources available to you including co-parenting classes and co-parenting books. Finally, don’t forget to talk to a solicitor in Hong Kong for a resource list and tips on how to navigate this process!

Mental Health and Divorce

It is not uncommon for many individuals to equate divorce to a death in the family. A plethora of emotions are not uncommon and can range from feelings of freedom, happiness, remorse, sadness and guilt along with a dash of bitterness, resentment and frustration. A divorce becomes exceptionally difficult when individuals are engaged in long, drawn-out court battles on key issues such as children, assets and ancillary relief.

In this article, we focus on the importance of enlisting the help of mental health professionals when you are going through a divorce. It is a key way to help you heal and move forward in your life. Mental health professionals can help you process the range of emotions you may experience during the divorce process and provide you with helpful tools to resolve issues you may be dealing with in this divorce journey.

In a time when mental health awareness is being highlighted in media and self-care is becoming a priority, there should be no shame in seeking help when it is needed to get you to a better place emotionally and spiritually.

Types of Mental Health Professionals: Before we dive into the benefits of enlisting the assistance of mental health professionals in divorce, let’s look at the types of mental health experts available to you in divorce. One mental health expert may be a therapist/psychologist. A therapist/psychologist can assist you in managing the stresses of divorce, including your expectations of the outcome. A therapist/psychologist can also help you develop new interpersonal skills that are valuable in creating healthier relationships whether it be with your spouse or your children during and after the divorce process. The interpersonal skills and tools you may learn through therapy is especially helpful if you have children and there is a need to co-parent with your ex-spouse. If you do not have the means to hire a therapist/psychologist, there are many mental health services available such as St. John’s Cathedral Counselling Service or The Samaritans in Hong Kong which can provide emotional support and counseling services for those in distress free of charge. Another mental health professional you may consider is a mediator who can assist you and your spouse negotiate a mutual agreement with respect to custody and access. This is an ideal option if you and your spouse are on amicable terms and you both believe a compromise is feasible through open dialogue and communication. To enlist a mediator to assist in custody and access issues is beneficial especially if you and your spouse agree that you do not wish to involve the court in resolving your custody and access issues. Another option is a parenting coordinator, who can assist you and your spouse resolve minor issues such as holiday pickup arrangements and communication disputes.
Benefits Of Hiring A Mental Health Professional In Divorce: What are the benefits in hiring a mental health professional? Calming emotions, clarifying expectations and helping discuss difficult issues are just some of the essential benefits obtained through the assistance of a mental health professional. Before deciding on a mental health professional, do your due diligence and conduct your own research before you entrust the personal details of your life to a professional. Your solicitor can be a helpful resource in providing you with a list of reputable and highly trained experts in the very area in which you seek assistance. There are many healthcare professionals in Hong Kong who have dealt with divorcing couples and can provide you and your family with helpful tools on how to navigate these difficult waters.
When Should A Mental Health Professional Be Employed In Your Divorce? Deciding on whether to enlist the help of a mental health professional is a personal decision. Consider therapy if you believe it can offer support and assistance in your own personal growth journey. Consider therapy if you are struggling with mental illness, which may be triggered or exacerbated by the circumstances surrounding your divorce. Talk to your solicitor to determine if a mediator is needed to resolve disputed children’s issues in your divorce. Your solicitor may have insight as to whether these third-party experts will be helpful to your case. You and your spouse may even consider enlisting the help of these trained mental health professionals for your children, especially if they are struggling with the “new normal” of the family dynamics. However, when doing so, make sure that the children are amenable to the idea as it truly is up to a child on whether he or she wants to attend therapy. Respect your child’s privacy if he or she chooses to attend therapy to resolve issues related to the divorce and remember not to use it as a weapon against the other spouse in your divorce.
Consider Other Forms Of Mental Health Support: Finally, mental health support does not need to be limited to therapy. Consider mediation, yoga or other forms of physical exercise to boost your mood, mind, confidence and self-esteem. A healthy lifestyle, hobbies, journal practice and gratitude and appreciation lists are also helpful ways to boost your mood and confidence. Change is difficult to adapt to, but be hopeful in that change is good and there are better things ahead.

Your solicitor is available to support you through the divorce process and can provide you not only with legal assistance but emotional support as well. Do not be afraid to ask for help when you need it. There is no shame in asking for help to bring your mental state to a better place.

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.

Successful And Effective Co-Parenting Tips In Divorce

What Is Co-Parenting?

You might have just gone through a divorce, but you were blessed to have children together with your ex-spouse. You two might have gone separate ways on bad terms, but your children should not suffer and you and your ex-spouse should still play an active role in raising your children together as co-parents to ensure that your children’s needs are met. The quality of the relationship between co-parents will determine the welfare and emotional health of the children as they grow up.

Co-Parenting Tips

Here are some useful tips for successful and effective co-parenting through the difficult period post-divorce:-

Clear Your Mind– The first step is to clear any negative feelings towards your ex-spouse and your marriage from your head. It will be difficult to set aside such feelings at first and it may take time. You should see co-parenting with your ex-spouse as a fresh start, which is all about your children rather than being about you and your ex spouse. You should both strive to be mature responsible co-parents and act in the best interests of your children.
Regular Communication– Communication between co-parents is key to successful and effective co-parenting. Your ex-spouse may not be the first person you want to talk to in person but try to devise a workable arrangement. Perhaps you may communicate via phone messages or email instead. A possible advantage of communicating this way is that you are able you to keep a record of your communication with your ex-spouse in case there is any dispute as to “who said what”. Try to communicate directly with your ex-partner rather than using your lawyer to do the talking for you; not only does this tend to not facilitate an amicable open line of communication, but it will also result in unnecessary legal costs.
Court Litigation is a Last Resort– There are certainly times when litigation is the only way to resolve problems, but you should avoid resorting to litigation before the Court unnecessarily. You should always try to resolve any issue with your ex-spouse by discussion and engage a family mediator to mediate between you and your ex-spouse if necessary. There is a likely chance that animosity between you and your ex-spouse may arise if either party resorts to Court. Ultimately, it is your children who will suffer as they will be the ones further affected by any negative tension between their parents.
Seek Professional Help- Going through a divorce is extremely difficult, never mind the ongoing task of co-parenting with your former spouse. Family counselling can be very beneficial to help parties through the difficulties of divorce, and minimise any negative effect on children. You and your ex-spouse could also consider attending co-parenting classes in order to learn more about co-parenting and how to do it effectively.
Be Consistent – Co-parents should aim to set a consistent set of rules for your children in both households such as curfews. This will ensure that your children feel less like they are living in two completely different households and ease them into their new living arrangements.

This article highlights the key tips to achieving successful and effective co-parenting. You and your ex-spouse should not dwell on the past and should act together for the best interests of your children. The emotional health and development of your children will ultimately depend on the quality of your co-parenting with your ex-spouse, so every reasonable effort should be made to learn how to do it effectively and cooperatively.

Divorce and Children’s Welfare

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