Category Archives: Custody

How To Prepare For Family Court In Hong Kong

After filing for a Divorce in Hong Kong, you will be required to attend the Family Court once the court sets down a hearing, whether it be for a First Appointment (a hearing where the court will be given an update on your case and where a judge give directions to move your case forward) or a more substantive hearing with respect to an application filed by yourself or your ex.

With that in mind, many people ask what they should expect and how to prepare for a Family Court hearing. Here are some tips ahead of your court hearing:

Where Is The Family Court Located? The Family Court is located in the Wanchai Law Courts at Wanchai Tower, 12 Harbour Road. Prior to attending the court, make sure you know the exact courtroom that you are required to attend and ensure you provide for sufficient time so that you are not late for your hearing. There is a sitting area available at the courthouse whilst you wait for your hearing to begin. However, if you need to have discussions with your solicitor prior to the hearing, plan ahead and go early so you can reserve a conference room pending the commencement of your hearing. The waiting time before your hearing begins could be long so be sure that you have sufficient childcare and/or have informed your employer that you will be away for at least a few hours for your hearing.

What Should You Wear? This is a frequently asked question and should not be ignored. When you attend a hearing, you will be in front of a District Court judge and it is imperative that you appear presentable. Whilst you are not required to wear a suit and/or tie, it is recommended that you are dressed in smart and respectful attire.

How Should You Prepare? If you are represented by a solicitor, it will be best for you to have a discussion with your solicitor prior to the hearing. Your solicitor can provide you with a rundown as to what to expect and how the hearing will proceed. Generally speaking, you will not be required to speak directly to the judge if you are represented by a solicitor. However, there may be occasions when a judge will ask you a question directly in court so you should be ready to speak if necessary. If you are attending the court for a more substantive hearing and/or trial and are required to provide testimony, be sure to spend a few hours with your solicitor in advance so that you can be prepared to give oral testimony which your solicitor can assist you with. If there is something you wish the judge to know about your case, speak to your solicitor and ensure that he/she understands what points you want addressed at the hearing (because your solicitor and/or barrister will be the one to present your case to the judge and they will speak on your behalf). If you are representing yourself, be sure to prepare by jotting down on paper, the key points you wish to get across to the court so that when you do present yourself before the judge, your points are clear and concise. Focus on getting the facts across to the judge rather than using it as an opportunity to complain to the judge about your ex.

Finally, try not to be nervous. This is an opportunity for you to be heard at the hearing and if you are represented, trusted that you are in good hands, with a solicitor who is advocating on your behalf.

Round-Up of Divorce News

Spring has arrived and what better way to ring in the Spring season than to summarize some of the few highlights from Divorce news stories circulating the Web.

Gender and Diversity In Divorce

South China Morning Post published a story about a decision by a Court in Beijing, China ruling that a Husband should compensate his Wife for housework she had done over a period of five (5) years. The penalty? US$7,700. Whilst there may be some housewives out there that might scoff at the idea that 5 years’ worth of housework was only worth a penalty of US$7,700, it is in fact an interesting ruling as it places a monetary value to chores and housework.

According to the SCMP article, there has been and continues to be a larger debate in China about the role of women who stay at home rather than enter the workforce. This is the first ruling of its kind in China since a marriage law came into effect on January 1, 2021. With the new law in place, it will be interesting to see how this plays out and how women (who continue to mostly be in charge of housework in China) will be compensated as they are now entitled to request relief from the Court.

Chasing After The Sun

In a recent Miami Herald article, it was declared that Florida is fertile ground for love such that divorced men are choosing the state of Florida as their primary destination to move to after a divorce. Could it be that it is perhaps the sun and that sun-kissed glow attracting newly single men to flock to the sunny Florida state?

According to the article published by the Miami Herald, a study by MagnifyMoney confirms that Florida is welcoming nearly 2,581 men in the 12 months after a divorce. The study states that the real reason men are choosing Florida over other states is due to job opportunities and career advancement along with the lower cost of living offered by Florida as an incentive to move. Given the current state of affairs around the globe, it also would make sense for individuals to move where space is a luxury, as is outdoor recreation activities. After Florida, men are choosing California, then North Carolina as their second and third best destination option.

If men are heading to Florida, then where are women heading? According to the study, women opt for Texas, followed by Florida, then Georgia.

Divorce and Daughters

In a new article published by The Economist, there are several studies conducted in America which confirm that having a female first-born does in fact increase the risk of the child’s parents divorcing, particularly in America and the Netherlands. This study conducted by Jan Kabatek of the University of Melbourne in Australia and David Ribar of Georgia State University in Atlanta, Georgia, USA also states that “daughter-divorce” risk emerges only in a first-born girl’s teenage years. According to the researchers, the primary reason behind the “daughter-divorce” risk is based upon the fact that parents quarrel more over the upbringing of teenager daughters versus teenage sons.

Covid-19, Depression and Divorce

In unsurprising news, the BBC reports that due to the Covid-19 pandemic, there has been a rise in depression and stress among parents resulting in fears, worry and anxiety. This has led to frequent arguments among couples, thus placing additional stress on the relationship and opening the door to couples considering separation and divorce. Demands faced by parents are becoming increasingly stressful as parents not only are dealing with Covid-19 related fears, but the resulting effects of Covid-19 including lockdowns, home schooling mixed in with the pressures of work commitments.

According to the report, Oxford researchers are now tracking both children and parents’ mental health throughout this crisis.

Those are some of the more interesting stories hitting the web. Stay tuned for additional summaries of interesting stories circulating the web related to divorce.

Custody and Access of Children of Unmarried Parents

After the breakdown of a relationship, matters of child custody and access can become a thorny issue for the parties involved. This is equally the case whether the parents are married or unmarried.

What are the rights of unmarried fathers?

Some unmarried fathers may believe that they automatically have the same rights and authority as the mother. While this may be the case for married fathers, it is not so straightforward for unmarried fathers. Under the Guardianship of Minors Ordinance, where a child is born out of wedlock, only the mother has automatic parental rights and authority. An unmarried father will have to apply to the Hong Kong Court for an order that he shall have some or all of the parental rights in respect of the child.

But what does it mean to have parental rights? Generally speaking, the rights and authority of a parent includes:-

the right to live with the child and control the child’s day-to-day upbringing;
the right to the physical “possession” and “services” of the child;
the right to choose the child’s education;
the right to choose the child’s religion;
the right to choose the child’s surname;
the right to inflict moderate punishment on the child;
the right to consent to medical treatment for the child;
certain rights to enter into contracts on the child’s behalf;
the right to act for the child in legal proceedings;
the right to administer the child’s property;
the right to appoint a testamentary guardian for the child;
the right to consent to an application for a passport for the child;
the right to arrange for the child to leave or emigrate from the jurisdiction;
the right to consent to the child’s marriage;
the right to consent to the child’s adoption.

In practice, it is prudent for the unmarried father to register his name on the child’s birth certificate which may help in resolving any disputes in the future.

When deciding on whether to grant an order that an unmarried father shall have some or all of the parental rights in respect of the child, the Court will consider the following factors:-

the degree of commitment which the father has shown towards the child;
the degree of attachment which exists between the father and the child; and
the reasons of the father for applying for the order.

Custody and access arrangements for children of unmarried parents

It is ideal for unmarried parents to come to an agreement in relation to the arrangements for their child to avoid the stress and cost of having to go to Court. However, where the separation is acrimonious or where there are disagreements over matters such as what school the child shall attend, where the child will live, when the child shall have access with the father, these matters can be brought to the Court to be resolved.

As is the case with married parents, the best interests of the child is the first and paramount consideration of the Court when deciding on custody and access arrangements. The Courts tend to favour joint custody orders as being in the best interests of the child in order to recognise the joint involvement of both parents in the major decisions relating to the child. The exception to this would be where there is very high conflict between the parents and they are unable to communicate or cooperate each other, in which case an order for sole custody may be more appropriate.

For young children of unmarried parents, it is generally ideal for the child to have the stability of living with one parent (usually the mother) on a day-to-day basis and have regular and structured access with the father. This can be organised in numerous ways. For instance, the unmarried father may wish to have evening access with the child on weekdays after school to enable him to have dinner with the child and continued involvement in the child’s studies and homework. Access on weekends may also be considered to let the unmarried father have quality time with the child and to take the child out for fun activities such as the cinema, theme parks and the beach. The unmarried father may also be allowed to have telephone calls with the child. For holidays, it is usually considered fair to allow an unmarried father to have some access during the holidays and for the father to take the child overseas for trips, if appropriate. The appropriate arrangements, however, will vary depending on the age of the child and the suitable arrangements for a baby or toddler will be very different from a teenager.

It should be noted that any order in relation to custody or access will not be enforceable if the parties are living together and an order will cease to have effect if the unmarried parents continue to reside together for more than 3 months after the order is made.

For more information about the financial obligations of unmarried parents for children after separation, please see our previous article on the topic.

Child Maintenance And Access If One Parent Leaves Hong Kong

Hong Kong is a cosmopolitan city with people from all over the world. Over the years, many expats have chosen to settle down and start a family in the city. When relationships breakdown and parents separate, this can have a huge impact on the family dynamic. This is even more so when one parent chooses to relocate overseas either to return to his/her home country, for work opportunities or because of a new partner.

What happens to access arrangements when a parent relocates?

Upon divorce, orders will be made by the Hong Kong Court regarding child maintenance and access arrangements. Generally, the parent who does not have day-to-day care of the child (the ‘paying parent’) will have to pay child maintenance to the parent who does (the ‘receiving parent’). When separated parents continue to live in the same city, access with the child can be arranged fairly easily. However, this will be complicated if the paying parent relocates while the receiving parent and child continue to remain in Hong Kong.

Once the paying parent moves to a different country, it will be more difficult for the paying parent to maintain contact with the child and the paying parent’s access with the child will inevitably decrease. Flying back on forth between countries frequently to see the child may not be economically viable especially if the paying parent has moved very far such as to the United Kingdom or Canada. While social media and online modes of communication such as WhatsApp and Skype have made it easier for families to stay connected, the time difference may make it difficult to arrange a mutually agreeable time that fits into the child’s school schedule especially as the child grows older and has more extracurricular activities. Ideally, both parents should be able to agree to the relocation and access arrangements so they can be adjusted to accommodate the move.

Enforcement of child maintenance if the paying parent relocates and stops paying maintenance

The paying parent still has a duty to maintain their child regardless of how much time they get to spend with the child or what country they live in. However, if the paying parent stops paying maintenance after relocating, the receiving parent may encounter very real difficulties in trying to enforce an existing child maintenance order. The receiving parent will have to go to the Hong Kong Court to try to take enforcement action. The enforcement of Hong Kong maintenance orders overseas is governed by the Maintenance Orders (Reciprocal Enforcement) Ordinance. Whether a child maintenance order made in Hong Kong can be enforced overseas will depend on the country which the paying parent has moved to and whether it is a reciprocating country. Currently, only 15 countries and places are designated as reciprocating countries:-

United Kingdom
Bermuda
Manitoba, Canada
Saskatchewan, Canada
Ontario, Canada
Isle of Man
Australia
British Columbia, Canada
Brunei
Malaysia
New Zealand
Singapore
Solomon Islands
South Africa
Sri Lanka

If the paying parent has moved to any of the above reciprocating countries, the receiving parent can apply in the Hong Kong Family Court for the child maintenance order to be sent to that country for enforcement.

Parents cannot enforce an arrangement made informally between them, it must be made an order of the court first. Moreover, the receiving parent will need to provide the overseas address at which the paying parent can be found. Enforcement can be further complicated if the paying parent moves to another country with the intention to avoid having to pay child maintenance and the receiving parent does not know where the paying parent is living.

Enforcement of maintenance orders overseas can be complicated. If you are seeking to enforce a maintenance order overseas, it is important to seek legal advice from a family lawyer.

Pet Custody and Crafting Pet Parenting Plans

In this modern world, there is a growing trend of couples choosing not to have children. This is especially the case when individuals are more inclined to focus on careers and other responsibilities. For those couples who still wish however, to add to their family unit, there may be an inclination to add furry friends to the family nucleus. As more households include pets, it is no surprise that pets can and do become a central focus when couples split in their divorce proceedings. So, who gets the pets in a divorce? What can courts do when “dividing” a pet in matrimonial proceedings and what part should you play in resolving this dispute regarding your family pet?

Legally, pets are not afforded the same rights as a child and whilst you may consider your pet to be your child, the courts will not see it that way. Instead the court will look at pets as property and so, since pets are considered property, there is no “custody” issue to be resolved. This does not mean you and your ex-spouse need not be creative when resolving disputes related to your pet.

Here are some things to consider:

Brainstorm a pet parenting plan: There is no limit to creativity when it comes to the idea of crafting a pet parenting plan. Brainstorm a pet parenting plan that allows you and your ex-spouse to have regular visitation with your family pet. Similar to a child custody and visitation agreement, you and your ex-spouse can agree on who pays for vet bills, who is responsible for visitation travel, and the date and time for regular visitation. Ask your solicitor to assist in formalizing a contract to crystalize the pet parenting plan that you and your ex-spouse have agreed to. It is important to remember that the courts have no power to make orders regarding pet custody since pets are considered “property.” The same custody rights that children are afforded are not the same with your pet.

When brainstorming a pet parenting plan, it is important that both you and your ex-spouse be mindful and sensitive towards the needs of a pet. You may want to discuss with your ex-spouse the time each of you spend with the pet, as the pet will certainly be bonded to one individual over the other. Who has more time to spend time with the family pet on a daily basis? Who travels frequently? Who takes the family pet to the vet and to pet playdates? Who has care and control of the children and does this affect a pet parenting plan as the children may be closely bonded to the family pet? These are all important considerations to be mindful of when brainstorming a pet parenting plan.

Pet Timeshare/Visitation Schedule: Similar to a child sharing plan, a pet parenting plan can outline the visitation times you and your ex-spouse will share your beloved pet. You and your ex-spouse can be creative in how you want to divide time with your pet, as long as you both agree to a suitable timeshare. Need some ideas? How about:

Every other weekend and one night a week
One week on, one week off
2-2-5-5 schedule: Parent 1 has the pet for two days. Parent 2 has the pet for the following two days. Parent 1 has the pet for the next five days. Parent 2 has the pet for the next five days and so on.

The above pet parenting schedules are just a few examples of how pet parenting can be divvied up between you and your ex-spouse. But ultimately, a pet parenting schedule should be crafted so it is tailored to what works for you and your ex-spouse. You both may also want to consider pet timeshare during major holidays, which can also include Mother’s Day, Father’s Day, pet birthdays and long-weekends. What happens if your ex-spouse wants to move away to another city? Have an open discussion with your ex-spouse about who will get primary custody of the pet and consider allowing the other pet parent to have time with the pet for the entire summer. If your pet is involved in extra-curricular activities, the party that is responsible to take the pet to these activities should be memorialized in your agreement. These days, there are so many activities that pets can become involved in, including pet play dates with other pets and their owners or even “Yappy Hours” that allow pet parents to meet, mingle and drink with other pet parents and their pets. In the USA, they even have “Hoppy Hour” for those who are bunny parents and where bunnies can mingle and play including agility classes where bunnies learn to hop over obstacles and compete in races! Be creative, it is up to you both as dedicated pet parents!

Shared Costs For Your Pet: Another issue you and your ex-spouse may want to weave into your pet parenting plan is how costs will be shared between the two of you. Having a pet is expensive. There are vet bills to consider, in addition to costs for food, maintenance and grooming. If you have a dog, there may be dog walkers and doggy daycare costs to be considered too. There will also be transportation costs to calculate into the equation when you and your ex-spouse have to transport your pet to and fro from each household.

Assign The Ultimate Decision-Maker: Generally, when parents fight for child custody in Hong Kong in a divorce, one (sole) or both parents (jointly) will be assigned custody over the child, with one parent having care and control and the other parent access. Although pets are not treated with the same legal considerations as a child, this is something that you may want to discuss and consider when sharing a pet with your ex-spouse. For example, who will be the ultimate decision maker when your pet becomes ill? Who will make decisions related to your pet’s death, burial and costs associated with your pet’s death? These are all things you definitely should consider if you and ex-spouse are committed to sharing your pet after a divorce.

Finally, here a few more things to consider when crafting a pet parenting plan which focuses on the mental health of both yourself and your pet!

Talk to a Solicitor, Talk to Your Veterinarian: Pet custody is a real issue, especially now that pets are no longer considered just “pets” but are quickly becoming valuable members of a family. In the event that you establish a pet parenting plan, you may also want to consider consulting with your veterinarian so he or she can give you tips on how to make the transition easier for your pet now that your furry four-legged friend is being shuttled between two households. Like children, pets undoubtedly require a level of consistency between two households.

Consider Talking To A Therapist: In the event your ex-spouse has “custody” of your pet, you may want to consider speaking with a therapist. In a divorce, there is truly a sense of loss and a grieving process that each member of the family must go through. The grieving process may be magnified if you no longer have access to the family pet especially if a close bond was established with the pet during the marriage. It is for this reason why brainstorming a pet parenting plan may be something to consider, especially if it helps lessen the sense of loss you may feel and experience during the divorce process.

Remember to be creative when drafting a pet parenting plan. Like children, focus on what is in the best interests of your pet!

How To Prepare For Family Court In Hong Kong

Subscribe to Our Newsletter

Subscribe to Our Newsletter