Children’s Views In Divorce Proceedings

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Children’s Views In Divorce Proceedings

In litigated custody battles, clients frequently ask if their child can testify before the judge.  However tempting this is, there are many factors to consider before placing your child into the front lines of a bitter divorce battle.

In Hong Kong, family court judges are cautious and historically, children’s views are only accepted through a social welfare report and/or any expert evidence such as a child psychologist.  However, similar to what is being seen in the USA, Hong Kong courts are now recognizing the importance of a child’s view and it is being promoted.

Child Theft

In Hong Kong, as part of its obligations under Article 13 of the United Nations Convention on Rights of the Child, the court will acknowledge that where a child’s interests are affected, a child’s viewpoint can be taken into consideration if that child is capable of forming his/her own views whether it be in person or through a representative. In practice, a child’s viewpoint is taken in the form of the following:

  1. Judicial Interview: Under his/her own discretion, the judge may grant an interview and the mechanism for conducting an interview of a child. This interview is not for the purpose of gathering evidence (which is the responsibility of the social welfare report) but rather it is to enable a judge to listen to the views of a child.
  2. Appointment of Legal Representative for the child: This is similar to what has been seen in California cases where a minor’s counsel is appointed under California Family Code section 3151 which allows the appointment of an attorney to look after a child’s best interests.  Here in Hong Kong, the appointment of a legal representative for a child is pursuant to Rule 72 and 108 of the Matrimonial Causes Rules and the purpose is to reflect a child’s interests and not necessarily a child’s wishes.  A legal representative for a child is not an automatic right and an unlikely appointment if a child’s view is adequately reflected and evidenced in a report before the court.

Whether a judge will allow your child’s views to be heard or not is dependent on a number of factors including: whether a child is suffering from harm due to access disputes; cases which are exceptionally difficult and involve foreign elements such as immigration or removal; an older child is opposing a proposed course of action; where there may be parental alienation from one or both of the parents; cultural and/or religious differences affecting a child; complex medical/mental health issues that need to be determined; serious allegations of physical, and mental or sexual abuse or in circumstances where neither parent seem to be suitable guardians.

Divorce matters affecting Children

Before a consideration is made with respect to allowing your child to testify or express his/her views to a court, you may want to ponder upon the following:

  1. Is Your Child’s Testimony Necessary? Ask yourself tough questions including why you want your child to testify.  What is the real reason?  Can your child truly assist the judge to  understand the circumstances in your home and how the custody arrangement is affecting your child? Generally speaking, there should be a strong reason behind having your child testify against the other parent rather than simply you wanting more custody time and/or harboring resentment/revenge against your ex-spouse.
  2. What Are The Long-Term Effects On Your Child? Consider the long-term effects testifying will have on your child.  A divorce is already a traumatizing experience for most children.  It is even worse if the parents are engaged in a bitter and litigated custody battle.  Consider factors such as whether it will be difficult for your child to testify because it will make him/her feel guilty for picking sides.  You need to consider the psychological effects this will have on your child and how it will affect his/her relationship with your ex-spouse.

Child's feelings in divorce

Remember that it is in your child’s best interests to have a healthy and communicative relationship with your ex-spouse, who is, after all, your child’s other parent.  Allowing your child to testify will undoubtedly affect the relationship dynamic between you and your ex-spouse and your child.  Also, try and determine why your child is expressing an interest in testifying.

In making any decision relating to your child, be sure to focus on what is in your child’s best interests and the right decision will follow.

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!

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