Children Issues In A Divorce

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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:

  1. Custody;
  2. Care and control; and
  3. 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:-

  1. Reasonable Access Order;
  2. Defined Access Order; or
  3. 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:

  1. the financial needs of the child;
  2. the earning capacity and assets of the child;
  3. the physical and mental condition of the child,
  4. the standard of living of the family prior to divorce; and
  5. 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:-

  1. 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.
  2. 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.
  3. 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.
  4. 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.

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.

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