Category Archives: Children

Navigating The Holidays With A Child Custody Order

If you’re in the midst of a divorce, holiday preparations with children can be that much more stressful as you are now navigating the holidays as a co-parent where holidays need to be shared and managed accordingly.

Fortunately, there are ways to alleviate some of the stress related to the holiday season. Generally speaking, organization ahead of the holiday season is key and it will ease some of the stress related to the children. It’s particularly beneficial if you’re able to communicate clearly and openly with your ex-spouse. Here are some things to consider as you prepare for the holidays with your children while navigating divorce proceedings:

Solidify Holiday Plans: Organization is key when preparing for the holidays. In Hong Kong, it is normal practice for families to be constantly on the move. Hong Kong is situated such that it is easy for families to fly to various locations around the world with ease. It is especially important for you to communicate and agree on your holiday plans with the co-parent as far in advance as possible so that there is no miscommunication or room for issues to suddenly arise shortly before you’re about to embark on your holidays with the children. If your relationship with your ex-spouse is difficult and you have been embroiled or continue to be embroiled in divorce litigation, it may be a good idea to print out and review the relevant orders and/or emails/letters detailing the agreement reached between you and your ex-spouse so there is no confusion for the arrangement of holidays.
Prepare A Detailed Itinerary: If it makes it easier, write out a detailed schedule or itinerary and provide the same to the other parent, including what activities the children will be engaged in, who the children will come into contact with, emergency details such as hotel information, important phone numbers and flight details.
Talk To Your Solicitor: Before planning your holiday, consult your solicitor to ensure that all the necessary paperwork is in place, including the appropriate custody and holiday orders. Reviewing these orders and asking any questions you have about what they mean or their practical effect is a good idea so that you fully understand the parameters of any custody, child sharing and holiday orders. If there are certain issues that still need to be addressed ahead of the holidays, your solicitor can assist you by initiating dialogue with your ex-spouse and his/her solicitors. It can be beneficial to discuss these matters with your solicitor sooner rather than later, and it’s important to plan and meet with your solicitor well in advance of any upcoming holidays if needed. Last minute issues are not welcome especially when you and your children may have already made plans and want the enjoyment of a holiday to start as soon as possible.
Sort Out Immigration Issues: Travelling in and out of Hong Kong is relatively easy. However, when there are certain custody orders in place, it is important to speak to your solicitor and have them send the appropriate paperwork to the Hong Kong Immigration Department to ensure that you will not be prevented from leaving Hong Kong with your children. Just in case, remember to always take all relevant paperwork with you, including any custody orders, in the unlikely event Hong Kong immigration asks questions and needs to see the appropriate orders to allow you to take your children out of Hong Kong.
Have Fun!: Remember that you’re on holiday and the focus should be enjoying your time with your family. Make it fun! Organize activities that your children will enjoy. Try and drown out the stresses of daily life and focus on the here and now. While it may be difficult to do so when you’re dealing with a difficult spouse or are still embroiled in a litigious divorce, try and unplug and focus on the fact that you are with your children and loved ones and that should in itself be cherished and celebrated.

Overall, remember to focus on the future and look forward new adventures with fresh eyes, full of new possibilities. Yes, a new norm has to be adapted to, but the more you focus on the future and all the good things to come, the more settled you and your family will be in time.

The Difficulties With Surrogacy In Hong Kong

What Is Surrogacy?

Surrogacy is assisted reproduction that heterosexual or same sex couples may turn to in order to help them start a family. This is typically done by asking a surrogate mother to give birth to a baby on their behalf. Depending on the type of surrogacy that is chosen by the family, the child can be genetically linked to at least one of the commissioning parents.

Is Surrogacy Legal In Hong Kong?

While surrogacy is permitted in Hong Kong, it is heavily regulated. A surrogacy agreement is usually entered into between the commissioning parents and the surrogate mother to agree on the surrogacy arrangement such as surrogacy fees, medical expenses and perhaps even more importantly, the legal parentage of the child i.e. who are the legal parents of the child. However, such agreements are not recognised by the Hong Kong Courts and are unenforceable. Therefore, problems with the surrogacy arrangement could arise if the relationship between the commissioning parents and the surrogate mother turns bad.

The situation is made worse by the fact that the Hong Kong Courts criminalise the commercial aspect of surrogacy whereby it is forbidden for the surrogate mother to receive any payment for her services and/or for an agent to receive any payment for finding a surrogate mother for hopeful parents. Such restrictions are applicable regardless of whether the payment is made or received in Hong Kong or elsewhere. In reality, it is difficult to find a potential surrogate mother and secure her services without any payment. As such, commissioning parents could find themselves criminally liable simply because they are having a child through commercial surrogacy.

Legal Parentage Of The Child

Hong Kong Courts regard the surrogate mother to be the legal mother of the child, regardless of whether the process took place in Hong Kong or elsewhere. The situation with the child’s father parentage is more complicated. If the surrogate mother was married at the time of fertilisation, her husband will be considered the legal father of the child unless he did not consent to his wife becoming a surrogate mother at the time. If the surrogate mother was not married at the time, the male partner who attended the surrogacy treatment services with her will be considered the legal father.

Parental Order

Upon the child’s birth, the surrogate mother and her husband or male partner will become the legal parents of the child. As such, the commissioning parents are required to apply to the Hong Kong Courts for a Parental Order which confirms that they are the legal parents of the child instead.

The following are the conditions that the commissioning parents have to meet in order for the Court to grant a Parental Order:

The gametes of either or both of the commissioning parents were used in the creation of the embryo;
The application for a Parental Order was made within 6 months of the birth of the child;
The child’s home must be with either or both of the commissioning parents at the time of making an application for a Parental Order;
Either or both of the commissioning parents must be:
- Domiciled in Hong Kong (an individual is domiciled in Hong Kong if he or she has physically lived in Hong Kong and intends to make Hong Kong their home for an indefinite period);
- Has or have been a habitually resident of Hong Kong for 1 year prior to the application (an individual is a habitual resident of Hong Kong if he ordinarily resides and returns to Hong Kong after visiting other places); or
- Has or have substantial connection with Hong Kong (substantial connection are all the personal factors of the husband or wife which connect him or her to Hong Kong).
The commissioning parents must be at least 18 years of age when the Court grants the Parental Order;
The surrogate mother and father must be shown to fully understand the effect of the Order and freely and unconditionally agree to the grant of the Order by the Court. The surrogate mother’s unconditional agreement shall not be valid if it is given by her less than 6 weeks after the birth of the child; and
There shall not be any exchange of monetary benefits or other kinds of benefits, except expenses reasonably incurred, for the surrogate parents’ agreements in subparagraph 6 and for making the Parental Order.

In light of the fact that Hong Kong does not recognise surrogacy agreements, the Court maintains control over the legal parentage of a child. Any potential commissioning parents should be well aware of the criminality of commercial surrogacy when securing the services of a surrogate mother and the hurdles for securing legal parentage of a child in Hong Kong.

Children Issues In A Divorce

How Are Children Matters Dealt With In The Family Courts?

The Hong Kong Family Courts have the jurisdiction to make Custody, Access and/or Maintenance Orders in relation to children i.e. those aged under 18. Generally speaking, children are not required to have separate legal representation, unless the Court considers it appropriate to do so.

What Is A Custody Order?

A Custody Order is a court order which relates to the child. In such type of Order, the court will make an order on three aspects, namely:

Custody;
Care and control; and
Access of the child.

Custody may come in two forms – sole custody and joint custody. The former means that only one of the parents has custody over the child and the latter means that both parents have custody over the child. Having custody over a child means that the custodian parent can make all the important decisions affecting the child such as his/her education and religion. It is important to note that if a parent has sole custody over a child, the other parent can still have a say in key issues related to the child such as choice of school and/or religion. Generally, the Family Court tends to grant a Joint Custody Order as the Court recognises the importance of having both parents involved in the upbringing of the child. This is so unless it is clear to the Court that a Joint Custody Order will not work in the circumstances, perhaps because the parties are unable to communicate, or the situation remains too acrimonious.

Care and control of a child is typically granted to the custodial parent. Having care and control means that the custodial parent has the right to make decisions over the child’s daily matters, such as what they wear on a daily basis or the foods that they eat,.

What Is An Access Order?

An Access Order is usually granted to the non-custodial parent and allows the parent without care and control to visit the child. For example, the Court can grant one of the following three types of Access Orders:-

Reasonable Access Order;
Defined Access Order; or
Supervised Access Order.

A common access order is Reasonable Access, which means that the parents are left to make arrangements as to how and when access will take place between themselves. If an agreement cannot be reached or if any problem with access arises subsequently, the Court may vary the Order to a Defined Access Order which specifies when, where and how access will occur. If there are difficulties over access, the Court may also grant Supervised Access, which means that access can only take place with the supervision of an independent third party who is responsible to supervise the access time.

Children’s’ Financial Matters

In a divorce suit, the Court may make a Financial Order for periodical payment or lump sum payment for the benefit of the child.

A lump sum payment is ordered to achieve a clean break and may be ordered to be paid as one lump sum or by instalments. The Court in considering whether to grant an Order will consider the circumstances of the case and the following non-exhaustive list of factors:

the financial needs of the child;
the earning capacity and assets of the child;
the physical and mental condition of the child,
the standard of living of the family prior to divorce; and
the education the child was receiving and expected to receive.

The Financial Order shall only take effect upon the grant of the Divorce Decree Absolute, the final Court Order which officially dissolves a marriage.

In addition to the above, another type of Financial Order called Maintenance Pending Suit can also be applied for in the best interests of the child. The Court, in awarding Maintenance Pending Suit, will order one of the parties to the divorce to make periodical payments to the other for his or her maintenance for the duration of the divorce proceedings. The Court will consider the reasonable needs of the child and the ability of the husband or wife to pay without conducting a detailed investigation. This type of Order can take effect from the date of the presentation of the Divorce Petition until the Divorce Decree Absolute.

Divorce, when it involves children, will add layers of complexity to the divorce procedure. Thus, in order to safeguard custody your rights and your children’s rights, be sure to consult your solicitor and ask questions!

Calling In Experts For A Divorce

Who Are The Experts?

Experts are individuals with education, experience and knowledge in a specialised area. They may be called upon when there is an issue in a divorce that the Court needs specialist input on. The Court will consider the expert’s advice and/or opinion when deciding an issue.

What Types Of Experts Are There?

There are many types of experts in a divorce. Here are some of the most common types:-

Psychologists: Psychologists are regularly called upon for children matters. They will analyse the situation and interview the parties involved before providing a professional opinion on the effect of divorce on the children to the Court. The psychologist will then recommend a child custody and visitation plan based on their analysis.
Vocational Expert: Vocational Experts are usually engaged in cases where one of the spouses has not worked for a long time as they might have given up their career to look after the family. There may therefore be a need to assess his or her current and future earning ability for the calculation of child and spousal support. A vocational expert will evaluate a spouse’s education and skills to determine their earning capability.
Forensic Accountants and Financial Experts: Forensic accountants are experts in discovering a spouse’s hidden assets and/or hidden sources of income. For example, if one spouse own a business, a financial expert could help in assessing and providing the Court with a more accurate value of the business. Such information helps to build an objective financial picture of the spouses’ assets for division and for the calculation of child support and spousal maintenance.
Real Estate and Antique Experts: Real Estate experts have the knowledge and skills to calculate the true market value of property. In divorce cases where high value assets are involved, antique experts may be retained to value certain items or collections. Again, this provides the Court with a more accurate financial picture of the spouses to consider when deciding on the question of asset division, or the calculation of child support or spousal maintenance.

While experts may be beneficial to your case, it is important to note that they may be costly and you may have to bear the costs by yourself. You should therefore discuss the need for an expert with your lawyer to see whether the benefits of hiring an expert outweigh the costs of the service that they provide.

Mediating Divorce In Hong Kong

When you marry, the hope is that it will be a forever partnership. Unfortunately, divorce is all too common these days and it is a reality for many individuals in Hong Kong and around the world. While the effects of divorce cannot be completely avoided, it can somewhat be alleviated depending on how you choose to approach your divorce.

One way to alleviate the difficulties associated with divorce is mediation. In Hong Kong, there are many qualified mediators who can assist you and your spouse in working through the complex issues associated with divorce and allow both you and your spouse the opportunity to discuss issues and hopefully come to an agreement and plan that works best for you and your family.

Here are a few things to consider in determining whether mediation is an optimal alternative for you and your spouse:

Do You And Your Spouse Communicate? If you and your spouse are on speaking terms and can communicate without anger, frustration and criticism, this is a good sign that the two you will be able to sit together in mediation and work on resolving issues in your divorce
Do You Want To Minimize Fees And Costs? The bottom line is that mediation saves money. When you litigate your divorce there can be exorbitant costs incurred to pay solicitors, barristers, joint experts and so forth. Mediation minimizes costs and if you and your spouse are tight on funds and wish to minimize fees and costs, mediation is a wonderful alternative.
What Are Your Future Plans? It is true that when you litigate a divorce in Hong Kong you may be delayed due to the time constraints/busyness of the Family Court and being heard before judge. If you are in a hurry to get a divorce and want to resolve issues as soon as possible, mediation is a good option which will mean that your divorce proceedings are not drawn out for years to come.

In Hong Kong, a litigated divorce is costly. Not only do you have to consider Family Court costs, but you also have to consider costs that are incurred as a result of employing a solicitor and potentially a barrister depending on the complexity of your case. If you are able to communicate effectively with your spouse and believe the two of you can come to reasoned decisions and agreements related to issues such as asset division, spousal and child maintenance and child custody issues, then mediation may be a viable option for you.

Here are some helpful tips that may assist in a successful mediation:

Do Not Involve The Children In Adult Discussions/Decisions: If you want to mediate your divorce and want to come to a reasoned decision that is in the best interests of you and your family, it is highly beneficial to lay the groundwork of a co-parenting relationship with your spouse. To do so means that you do not involve the children in any adult discussions with respect to the divorce. This also means there should not be any badmouthing of the other spouse with the children. Remember that children need both parents and it should be your priority to facilitate your children having a healthy relationship with the other parent.
Compromise: To be successful at mediation requires you to compromise with your spouse. If you are not willing to compromise, it will be very difficult to come to an agreement in mediation as there needs to be both give and take between you and your spouse. You may be surprised that when you take a few steps towards compromise, your spouse may be willing to meet you halfway and be more willing to compromise him/herself.
Be Willing To Reach Out And Communicate: You may want to consider reaching out to your spouse to smooth out any misunderstandings before mediation so that you and your spouse can come to the mediation table without any built-up resentment or anger. While you may not have the same relationship as when you were married, it is important to recognize that you and your spouse may still need to remain in each other’s lives. For example, when you are co-parents of the children of the family. Reaching out and putting pride aside will go a long way in building a new relationship post-divorce.
Try To Understand Your Spouse’s Point Of View: It is important to always consider your spouse’s point of view. While it may be hard to do so given long-standing resentments and issues in the relationship, this is an important step in resolving issues amicably. Perhaps your spouse may be proposing something reasonable. Take the time to consider their point of view before forming your own decision. You may be surprised that there is a compromise in the midst of two differing ideas/opinions.

If you are interested in mediating your divorce, speak with a professional solicitor experienced in matrimonial law. He/she will be able to put you in touch with an experienced mediator who can assist you and your spouse in resolving issues. Once you and your spouse agree on a mediator, the mediator will walk you through the steps and preparation needed before you attend the first session. It is important to note that depending on the complexity of your case, you and your spouse may need to attend multiple mediation sessions. The key however is that you and your spouse are both willing to cooperate and participate in the mediation process. That in itself will go a long way in helping you and your spouse achieve the goals you want in your divorce.

Navigating The Holidays With A Child Custody Order

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