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2016年3月16日 水曜日

Divorce in Hong Kong - Part 3

16th March 2016 (Wednesday)            
Katty Tsang
 

Today, I would like to write about Custody, one major subject in a case of divorce, where there is/are child(ren) of the family.

Most of my clients came to me, especially if they are the mothers, their first concern is not about the alimonies, but about the child(ren) -- whether they can be granted the custody of the child(ren).

Custody
The children's welfare is at all times the first and paramount consideration of the Court for obvious reasons.

When speaking of custody issue in Hong Kong, there is a high tendency that children of the family are usually granted to the mother, who is usually the primary caregiver. 

If custody is disputed between the husband and wife, the Court will usually order for a Social Welfare Report.  Social Welfare Report is to be conducted by a social worker to be appointed, and he/she will interview with the children's mother, father, grandparents, the children themselves if they are able to express their feelings and thoughts.  Apart from interviews, the social worker will also pay home visits.  When all information is gathered, the Social Welfare Report will be submitted to the Judge for his/her review and consideration.

Two Types : Sole Custody vs. Joint Custody

In Hong Kong, we have sole custody and joint custody.

The Court will consider all facts of the case and with reference to the Social Welfare Report and other relevant information, and consider also what is in the best interest to the children before making the decision.

Sole custody means, either the mother or the father will be granted custody.  All rights of making major decisions and all responsibilities of taking care of the children will be given to the party who is being granted with sole custody.

Whereas, joint custody means custody is granted to the mother and the father.  On this head, the Court will need to decide which party shall have "care and control" of the children, which effectively means living and taking care of the children daily.

The party who is not granted with sole custody or, the party who does not have care and control of the children in the case of joint custody, shall have right of access to the children.  Terms and conditions of access shall be reasonable.  Most commonly seen is once a week during the weekend for a certain period of time (say, 8 hours).  For example, if wife is granted sole custody or care and control in the case of joint custody (as the case may be), the husband will be able to spend time with the children alone without the wife.

Of course, there is nothing forbids the wife to be present during the husband's meeting the children, if the wife and the husband are in good friendly terms.

As a final note, most of the cases the Court (or even legal practitioners) will prefer joint custody than sole custody, unless the situation is undesirable to order joint custody.  In recent years, Hong Kong is under extensive reviews and discussion on a reform of custody of children. It is anticipated that the concept of Parental Responsibility will be introduced and replaced the existing custody system.



This article is for reference purpose only and does not intend to provide any advice.  If you need legal advice for your actual case, please seek legal advice from a qualified attorney of your choice.

投稿者 Kuribayashi Sogo Law Office

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