Category Archives: Parent

Silver Linings in Divorce

It is a new year and we can never predict what lies ahead, but there are definitely many adventures to be had. If you are going through a divorce, there may be many challenges ahead, but regardless of the challenges, there is always a silver lining in every difficult circumstance.

With that being said, I have listed some of the common challenges you may face dealing with divorce this year, but alongside that I have also listed some of the wonderful accomplishments and adventures you may gain along the way:

1. Heartbreak Over A Failed Relationship. When divorce happens, there is heartbreak, especially if you are the spouse that wanted the relationship to work. Understandably, heartbreak is emotionally and physically taxing and can be magnified in divorce. You and your spouse have invested considerable time into each other and there are many dreams you both had for your family. While it is normal for individuals to go through a grieving process, this is also a wonderful time for you to focus on what is ahead. Set new personal and professional goals, think about some of the hobbies you have always wanted to master and the places you have always wanted to see, especially if Covid-19 restrictions are on its way to being eased in Hong Kong and around the world! For many of you, this could also mean a new start in building new relationships and getting back into the dating scene. Divorce is not the end and there are many wonderful experiences and memories you will encounter over your lifetime.

2. Finance Woes. Divorce can wreak havoc on your finances. For example, a court may order you to pay monthly maintenance for your spouse and for the children, which will cut into your monthly income. In a divorce settlement, you may be required to pay out a significant sum to your ex-spouse to equalize the division of assets and debts. The nest egg you saved in your retirement accounts may also be cut in half as part of a divorce settlement. While the financial pressures associated with divorce can cause great stress, this is also your chance to become empowered to take charge of your finances and create a roadmap for your future financial success. It is during this time that it would be beneficial for you to meet with a financial expert to plan a budget and manage finances following divorce. If you are the receiving party to maintenance, it is not wise to squander your monthly support cheques or your lump-sum divorce settlement with no thought to your financial future. This may also be a good time to think about entering back into the job market and should be discussed with your solicitor about how this will play into your divorce.

3. Co-parenting Rocky Road. In divorce, you and your ex-spouse will begin to co-parent. For some parents, co-parenting is easy with no issue. However, other parents find co-parenting a nightmare and have difficulty communicating with each other. Co-parenting may be difficult for parents, but this “new normal” is also very difficult for children and pets. Remember that this is difficult for everyone involved, especially when you and your ex-spouse are sparring over co-parenting issues. While co-parenting can be rocky, it is a great opportunity for you and your ex-spouse to work on communication skills with one another and with your children. Talk to your children about what the divorce means for them and how it will affect their relationship with you. Ask your children how they feel and what you can do to make the transition easier. Using this difficult situation as an opportunity to build communication bridges with your children will be rewarding in the long-run. Remember that it is important not to use your children as a weapon against your spouse during divorce proceedings. Avoid talking to your children about adult issues related to the divorce. Finally, now that a new family dynamic is being created, this is also a great opportunity to create new traditions and new routines for your family.

With the start of the new year, consult with your attorney about how you would like to proceed in your divorce and the goals you would like to see by the end of the year. Setting goals for your divorce will help you overcome every challenge you face during divorce. Once you get past the challenges, you can then look back and be proud of your accomplishments.

Your Legal Rights To Relocate Your Child

In our previous post, we discussed the importance of a well-thought-out plan before you decide to move your child away to another country. Whilst it may be tempting to romanticize the idea of a fresh start, it is important to refrain from jumping the gun and instead reflect upon the effects of a relocation on your child and your ex-spouse.

Unless you and your ex-spouse agree to a relocation, the relocation process will be costly and time-consuming once the Family Court is involved in the decision-making process. Relocation applications are taken very seriously by the Family Court in Hong Kong. Thus, before you decide to relocate, it is prudent to become knowledgeable as to what the Family Court will consider in making its decision regarding your desire to relocate. Thus, it is especially important that you retain a solicitor to discuss a relocation.

1. Welfare of the Child: In Hong Kong, the welfare of the child is the paramount consideration and in Hong Kong, the Family Court will ask important questions before making a decision: First, is the removing parent’s application genuine? Second, is the removing parent’s application realistic? See Payne v Payne [2001] EWCA Civ 166 and also Z v XWN [2018] 3 HKLRD 644. With respect to the first question of concern, the Family Court will look at whether the removing parent’s motivation is genuine and that the removal is not for selfish reasons or to exclude the other parent from the child’s life. The Family Court will also look at whether the decision to remove the child is well-researched and that the proposals in place for the child are practical. Practical considerations can include schooling and proximity of extended family allowing the child a support system. With that being said, ask yourself: Where will my child attend school/daycare? What community will we plan to live in? What family and friends will my child be surrounded by and what support system do I have in place? These are things to consider because the Family Court will consider these factors when deciding what is in the best interests of your child. Once the Family Court considers the removing parent’s motivation and practical considerations for the removal of the child, the Family Court will then look at the opposing parent’s reasons for the opposition. Here, the Family Court will also look at the opposing parent’s motivations and the extent of detriment the opposing parent will face if the application is granted for the other parent to remove the child. The Family Court will also consider the detriment to the removing parent in the event the application is refused and what it would mean for him/her. It is important to remember that whilst all of these factors will be considered by the Family Court, it will all be considered in light of the welfare of the child.

2. Your Personal Plans: In keeping with the theme of the welfare of the child, the Court will likely request detailed information regarding your personal plans as well. Your plan is important because it directly relates to the welfare of the child. For example, what type of employment do you have lined up once you move and how will this help you support yourself and your child? Are you moving for personal reasons such as a new marriage? Are you pregnant and your new husband lives in a different city? These are all factors the Court may take into consideration when making its final orders so the more information you can provide the Court, the better.

3. Frustration Of Contact: As noted above, one thing you will want to reflect upon is the reason behind your decision to move with your child. Are you trying to frustrate your child’s contact with your ex-spouse? If that is your goal, you may want to think twice before you file a motion for a relocation because it is likely that your motive will become transparent through court proceedings. Once the Family Court finds that you are moving to frustrate contact with your ex-spouse, it will play into the Family Court’s decision to allow your relocation.

Make an informed decision that is based on what you know to believe is in the best interests of your child as this will be the Family Court’s paramount consideration when ordering a relocation. Finally, it is important to note a few things as we end this article: First, there is no presumption of favour just because you are the primary caretaker of the child. Second, remember that you cannot unilaterally remove your child from Hong Kong without written consent from the other parent or leave of the Court. If you attempt to remove your child without the other parent’s consent and he/she becomes aware of this, the other parent could easily serve an order on the Director of Immigration to restrain your child from being removed from Hong Kong. Any questions you have about a relocation should be carefully discussed with your solicitor so you are aware of all the risks involved.

Considerations Before Relocating Your Children

Hong Kong is a cosmopolitan city, attracting many individuals from various countries to live, work and raise children. In the heat of a divorce, many expatriates may decide they no longer want to remain in Hong Kong and many times, individuals decide to relocate back to their home country. Unfortunately, this may be a complicated situation if you and your spouse are from different countries and the neutral destination to raise your children may continue to be Hong Kong. With that being said, if you are set on relocating with the children in the midst of a divorce, there are important things to consider before you make a final decision to move away with your children.

First of all, if your spouse does not agree to you and your children’s relocation, your plan for a fresh start may not be as easy as you think. Relocation applications can be extremely expensive and can result in a long drawn-out litigated process through the Family Court system. While the Family Court will consider your request to move the children out of Hong Kong, it is usually not a quick decision but rather a well thought-out order by the Family Court. Thus, it could be months or even years before you are given the green light to move with your children to another country.

Before you make a decision to remove your children from Hong Kong, here are some helpful tips to consider before you make this life-altering decision:

1. Think About the Best Interests of Your Children
Is this move beneficial for your children? When you relocate your children, you are moving them away from the other parent. That may be appealing to you in a messy divorce, but to your children, this may be a devastating reality. Think about what is in the best interests of your children first and foremost. If your ex-spouse has an equal timeshare with the children, it may not be that easy to move the children away from their current home country. You will also want to consider the fact that you may be moving your children away from the support system (both family and friends) that they are used to. When this becomes a litigated matter, your desire to move away may not happen immediately, so you also need to consider what the best timing is for your children’s transition in this relocation. If your children are old enough to understand your decision to move, you may want to have open dialogue with them as to their wishes on whether they want to move at all.

2. Have a Plan
Have you thought out the relocation plan all the way through? What school will your children attend and is this school up to par with the current school that your children are attending? Who is going to help care for the children when you are unable to be there for them? Do you have family and/or friends who are in the vicinity to help with childcare and be a support system to you and your children? Do you have a job lined up and is this really a better opportunity than the current employment situation that you are facing in Hong Kong? These are just a few questions to ask yourself prior to the relocation of your family. These are also some questions the Court will want you to explain prior to making its decision so it is important to have a plan and not make a decision based on a whim.

3. Communicate With the Other Parent
Communicate with the other parent about your desire to move. You may be surprised that he or she may be willing to work with you in allowing the relocation. This will also help you avoid costs associated with a litigated motion to move. Communicating with the other parent will also help you and your ex-spouse figure out an appropriate parenting plan and visitation schedule, which may include online “virtual visitation” through Skype, Facetime or ZOOM. It is also important to discuss travel expenses for visitation now that the two of you are no longer living in the same city/country. Open communication may reduce conflict between you and your ex-spouse and reassures the other parent that you are not trying to cut him or her out of the children’s lives. It shows the other parent that you want them to be involved despite the distance.

These are some important questions to ponder upon before you make an ultimate decision to move forward with a relocation application. It is important to remember that Hong Kong is a member of The Hague Convention on the Civil Aspects of International Child Abduction and any individual who unilaterally and wrongfully removes a child from the jurisdiction will be subject to the Convention. Thus, it is important that you speak to a solicitor in this process so that he/she will be able to help you navigate the legal system in this life-changing decision. Ultimately, this should not be an impulsive decision but one that is well thought out and planned appropriately.

Deed of Guardianship: Do You Need One?

The world is struggling with the Covid-19 pandemic and as a result, many individuals are taking into account the legal paperwork needed in the event of a “worst case scenario.” One legal document that parents may want to consider is a Deed of Guardianship, which sets out guidelines for the caring and well-being of minor children in the event of both parents passing away.

A Deed of Guardianship is a legal document signed by both parents and two witnesses. It is a document separate from a Will and unlike a Will, a Deed of Guardianship will set out specific guidelines regarding the care of your minor children in the event of passing. A Deed of Guardianship will set out the minor children’s primary caretakers and can also identify temporary guardians until such time the minor children can be in the care of their permanent guardians. Many times, individuals will also choose to create a separate document called a Temporary Deed of Guardianship, allowing parents to set out clear guidelines on who will be the children’s temporary guardians to assist in the care of the minor children and set out the intention of the parents pending a permanent move to the permanent guardian’s household.

Deed of Guardianships may be especially important to expatriates living in Hong Kong, especially when family members are not in the same jurisdiction. For many expatriates, there is a concern that in the event of both parents’ death, the minor children would then be taken into government custody (eg. Social Services). If this occurs, the government then makes a decision on who will be the appointed guardian. Any disagreements among potential family member guardians can cause delay and result in the child/children remaining under the care of Social Services. By having a Deed of Guardianship, the parents can have assurance on how and who the children will be taken care of should the death of both parents occur.

It is important to speak with a solicitor who can draft a Deed of Guardianship on you and your spouse’s behalf. You may also want to consider establishing not only the guardians, but also alternate guardians in the event the guardians pass away before your child/children reach the age of 18 (which is the age when the guardianship terminates) or if the appointed guardians is unable or unwilling to act as a guardian for the children.

Deed of Parenting

When you speak with your solicitor, you may also want to consider discussing a Deed of Parenting as well. What is a Deed of Parenting? A Deed of Parenting simply states that you and your spouse are the legal parents of the children. This is important in circumstances where you and your spouse are traveling cross-border and there is any question by immigration and customs officers as to the parentage of your children and whether they are with appropriate caretakers. Many times, customs and immigration officers may question parentage when you and your spouse have a different surname than that of your child/children.

Speak with your solicitor about whether a Deed of Parentage is something to consider, especially as customs and immigration agents are becoming much more critical about travel and the necessity to have essential travel documents requirements.

Parental Child Abduction In Divorce

Hong Kong is home to many expatriates and in a divorce, the issue of where a child will reside and grow up after a divorce is a distinct area of discussion among parents. Whilst the majority of parents do come to an agreeable conclusion as to a child’s future place of residence, there are those few highly litigious cases when removal of a child from the jurisdiction of Hong Kong can occur without the permission of one parent and without leave of the court.

When this occurs, it comes within the realm of parental child abduction and the courts take this very seriously as many countries are members of the Hague Convention; a multilateral treaty developed by the Hague Conference on Private International Law and which provides an expeditious method to return a child internationally abducted by a parent from one member country to another. Hong Kong is a member of the Hague Convention and The Child Abduction and Custody Ordinance (Cap. 512)(CACO) was enacted on 5^th September 1997 to give effect to the Convention in Hong Kong. It is important to note that the People’s Republic of China itself is not a contracting state to the Convention, but yet Macau, another Special Administrative Region is. Thus, at this time there is no mechanism in place between Hong Kong, Macau and Mainland China for the return of abducted children to China.

In Hong Kong, removal occurs when a child who was previously in the country of his/her habitual residence is taken away to another country. Retention occurs where a child who has previously been for a limited period of time outside the country of its habitual residence, is not returned on the expiry of that limited period.

In the event that you are concerned that your ex-spouse may unilaterally remove a child from the jurisdiction of Hong Kong, there are steps you can take to prevent this from occurring:

First and foremost, speak with a family law solicitor to discuss the filing of an application to restrict the removal of the child from Hong Kong. This application should be made within the main divorce suit and can be made on an ex parte basis, which is essentially an emergency hearing. If you are successful in obtaining an order restricting the removal of a child, be sure to speak to your solicitor about ensuring this order is adhered to including providing a copy of the removal restriction order to Hong Kong’s Immigration Department who will then have notice of this removal restriction should your ex-spouse attempt to leave Hong Kong with your child.

If you believe that your ex is plotting to remove your child from Hong Kong, be prepared and take preventative measures such as notifying your child’s teachers, babysitters and other caretakers of a possible threat. Record any and all threats made by your ex-spouse and keep updated photos of your child. Gather all documents related to your child such as passports and birth records and make sure you have copies of all documents and that the originals are safely stored in a secured place, accessible only by you. It may also be worthwhile to keep the lines of communication open between you and your ex-spouse, as it may help reduce any potential flight risks that you may be concerned about.

If your ex-spouse has already left Hong Kong with your child without your permission and/or without the leave of the court, it is imperative that you take immediate steps including the following:

Contact Police: Contact local authorities to report parental child abduction. This is especially important if you are concerned about the safety and well-being of your child and/or you’re concerned that your ex-spouse will be going into hiding with your child.
Seek Legal Counsel: As this is a situation which requires immediate attention, get into contact with a solicitor who can assist you with the return of your child. You will want a solicitor who is well-versed in Hague Convention related matters and one who has previously successfully obtained the return of a child from a foreign jurisdiction. Once a child is taken out of Hong Kong, there are many hurdles a parent must go through and if you are not properly armed with an outstanding legal team, it will be that much more difficult. If you are concerned about the whereabouts and well-being of your child, it is very important to keep your solicitor apprised of all communications with your ex-spouse and your child.
Make An Application: Once you have reached out to your solicitor, he/she may suggest that you file an application for the return of your child, but may also suggest that you make a request directly to the Secretary for Justice by filling in the necessary paperwork from the Department of Justice.
Do Your Own Research About The Hague Convention Treaty: Read up on The Hague Convention Treaty and become familiar with it so that you are knowledgeable about what situation you are dealing with. Not all countries are part of the Hague convention so it is vitally important to initially determine whether the country holding your child is a party to the treaty. Do your research and do not be afraid to ask your attorney tough questions about how the Hague Convention Treaty will affect your case and the likelihood of success of having your child return to Hong Kong.

It is important to note that a court will have discretion to refuse the return of a child to Hong Kong. The courts will consider factors such as consent, acquiescence in a removal, grave risk for a child’s return both to physical or psychological harm and/or the court may even consider a child’s maturity and his/her views about a return.

If you are the parent who wishes to remove your child from the jurisdiction of Hong Kong, the route is of course is to go through the legal system which includes negotiating and resolving issues related to child custody and access in your divorce case through mediation or having it resolved by a court order. It is understandable however that many parents find this to be a frustrating process as the courts in Hong Kong are dealing with backlog of cases resulting in delay before there is an adjudication of matters and even then, one parent may not be happy with the result. It goes without saying however, that at no point should a parent take matters into their own hands and resort to parental abduction of a child which can have detrimental effects especially on a child.

If you wish to remove your child from the jurisdiction of Hong Kong, speak to your solicitor about filing an application to remove your child permanently from the jurisdiction. If you and your ex can agree, a consent summons can be filed with the court. Remember, an ill-thought-out plan with little research and planning will not convince a judge that it is in a child’s best interest to be removed from the jurisdiction of Hong Kong.

Silver Linings in Divorce

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