Podcast S2E4 | Household: Kids Custody

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Alfred Ip and Carly Fan discuss issues concerning children custody and considerations that are taken in order to put the interests and well-being of the children first, including in situations that might require their relocation to another country. They also talk about protecting children from the mental health impacts that divorce proceedings often have on them and the benefits that a co-parenting coordinator might be able to bring to divorcing spouses and, ultimately, to the whole family.


Welcome to a new series of The HIP Talks podcast: a collection of discussions on legal topics hosted by Hugill & Ip Solicitors. We provide high quality legal services with integrity, professionalism and respect for our clients and the community. Our solicitors have achieved outstanding results and recognitions in the areas of Dispute Resolution – Corporate & Commercial – Private Client, Probate and Trust – Family – Employment – Business Immigration and Data Privacy.

Carly Fan 00:31 Hello, everyone. I am Carly a trainee solicitor at Hugill & Ip. Today I have the pleasure to discuss the topic of children custody with our firm’s partner, Alfred Ip.

Alfred Ip Hello.

Carly Fan 00:43 Hello Alfred. Let me first give a brief introduction on children custody. As you have discussed with Thelma Kwan in a previous episode of the HIP talks, we know that divorce is often a complicated and turbulent process.

Carly Fan 01:00 It only gets more complicated when children are involved. Two main concerns regarding children in a divorce are care and control, more commonly known as child custody, and child maintenance payments, more commonly known as child support. So, to start off, can you tell us what factors do the Courts take into consideration when awarding custody of children in divorce?

Alfred Ip 01:24 Can you imagine when two parents are fighting over each other, and the children sometimes could be caught in the middle? Actually, when the Court is considering a divorce, the child benefit and interest will be first and paramount consideration. And when the children are going through a turbulent time, the first that the Court may think is what would be the current status and how are the children being looked after and if only there’re very pressing issue otherwise the Court will try to maintain the status quo in order to stabilize the situation, and deal with any sort of disputes or issues that the parents may have among themselves. And in that respect, in a lot of situations, there will be a main caregiver of the children. A lot of times it will be the wife, no matter whether she’s working or not, she’ll spend probably more time with the children looking after them, feeding them, looking after their homework, playing with them. While a lot of times the father will also spend a lot of time with the children looking after them, there will be a main caregiver, and that main caregiver could probably be the mother and the mother may be awarded with the main responsibility of looking after the children in that case, and she will be given care and control. And the husband, the father in that case will probably be awarded like reasonable access, but what the access frequency and the mode of access will be something that will be discussed a bit later. And in that respect, if the parents cannot agree with each other, the Court will look at a lot of situations, including the current arrangement, the future proposed arrangement, and sometimes the children’s our own wishes will also be looked into, and unless there’s a very special situation, otherwise, the Court would not usually separate brothers and sisters. They will try to maintain the sibling unity. And the main concern would be: would the parents be in a position to look after the children with the proposed care and control and access arrangement.

Carly Fan 04:01 So, stemming from what you have just said, actually, in many cases, the mother is more involved in the day to day care of the children, and thus more likely to gain child custody following the divorce. So, would you agree that it is true to say that the mother always gets custody?

Alfred Ip 04:18 First of all, I don’t think that it is fair to say that because the mother has always been the person who is the main caregiver should be getting custody. And indeed, most of the circumstances, unless there’s a situation justifying giving sole custody to one parent, otherwise the father and the mother will be given joint custody, because there would be the best interest of the children when both father and mother would play a role in their lives. Joint custody is most of the time when children’s decision will be made jointly. So unless the father and the mother are in such a bad relationship that they cannot even see eye to eye and talk to each other like sensible adults and they just keep fighting all the time to the point that it will only be giving more headache and issues to the children otherwise the Court normally will give joint custody to both parents, the only outstanding issue would be care and control.

Carly Fan 05:23 I see. So, contrasting joint custody with sole custody, for example, when a parent wants to leave Hong Kong with the children, then we can expect that the administration process will be eased by sole custody, is that correct?

Alfred Ip 05:38 Um, it very much depends on the case just because one parent is moving away from the children doesn’t mean that will immediately they lose custody, because at the end of the day is still one of the parents and he or she should have a role in their upbringing, just because there’s distance apart doesn’t stop them from making joint decision with the parent. But a lot of times when there is one parent who wants to relocate, they might be issues that arise when whether two children will be moving with him or they should be leaving in the same place with the remaining parent.

Carly Fan 06:20 I see. So, moving on, I have a hypothetical question. So how can one parent prevent the other from removing their children from Hong Kong during divorce proceedings?

Alfred Ip 06:32 Actually, it is one of the major concerns that the parent may have, they are very scared that because the other parent, just take the children and fly away. In that case, that parent can ask the other parent to surrender the children’s passport in the custody of either a third person or their lawyer that could prevent the other parent from leaving the country with the children. Of course, then one may ask: what if the parent goes ahead and apply for replacement for children’s passport to take your children away? We can also ask the other parent to make an undertaking to the other side and the Court not to apply for replacement of the children’s passport without the other parent’s consent.

Carly Fan 07:21 Another question for you is if joint custody has been granted by the Court, how can the parent with right of access ensure that the parent with care and control does not remove the children permanently and deprived him or her have access to the child?

Alfred Ip 07:37 One of the many ways that can be implemented is to put an undertaking to Court not to remove the children from the jurisdiction without the other parent’s consent. If the parent breaches that undertaking, then that parent may be subject to contempt of court and even imprisonment and another way is to insist on a written consent to be provided by the other parent so that the children cannot be removed from the jurisdiction without such written consent. And we can apply for the name of the children to be put at the Immigration Department and to stop this to make sure that the children would not be going away without another parent’s consent.

Carly Fan 08:23 I see. So there are these protections in place. Yeah. So, moving on to another topic. What audience may or may not have heard of international parental child abduction. Can you tell us more about international parental child abduction?

Alfred Ip 08:40 This is exactly what you mentioned earlier. That is one parent taking the children away without the other parent’s consent. In that situation, he or she needs to report to the relevant authorities in his jurisdiction immediately in order to bring forward the Hague Convention proceedings, we call it, that is making an application to other countries that were the children are in order to ask for an order to bring them back to where the original country is.

Carly Fan 09:17 So what are some possible defenses that a parent may have against returning their child to his or her own country of residence?

Alfred Ip 09:25 Um, possible defense would be that, for example, under extreme circumstances, there’s nowhere else, there’s no other option for her to remain in the country, for example, the husband is beating her up or the husband is not providing any maintenance and she has to rely on the support from her other family members in her home jurisdiction and things like that. And at the end of the day, it is about the children’s benefit. So another possibility is that the parent who removed to child may say that the other parent has actually consented to it. And actually, we did come across cases that the mother, for example, said that I’m going back to visit my parents with the children, I will be coming back at a certain date, and she never did. That kind of situation would not be where there’s consent, because the husband was thinking that they will return, but eventually they did not return. So in that situation, the wife may say that all that’s the only way that we can remain in our home jurisdiction because of certain things that the father has done to me. It will be ultimately the Court decision looking after the children’s interests in mind.

Carly Fan 10:45 I see it’s a sensible conclusion to say that the Court would really factor in the child welfare and the child’s interest. So another question is that, as we all know, many of our clients are either expats or international families, which they often relocate to suit the employment needs of the parents. So how does the Hong Kong Court address the issue of child custody in situations of relocation?

Alfred Ip 11:12 It is actually very sad because when one parent decides to relocate, and then other does not, then where would the children go? Who should the children follow? It would be up to the relocating parent who wants to bring the children with him or her to satisfy to the Court that as such circumstances, everything has been planned for properly. So the Court would actually look into the proposal to be given by the relocating parent that is, where they’re going to live, which school are the children going to be enrolled into, who is going to be providing the financial support of the children, covering the children basic needs, such as school and daily needs and other things. And the major position is that unless the Court is satisfied that the children are well looked after, and it would be better for the children to relocate to another country – don’t forget we’re talking about a new country that children are probably not familiar with – the Court would not make and order casually allowing the relocating parent to bring the children with him or her. At the end, what if the children cannot adapt to the new environment? What if they’re left behind in terms of their education? There are actually a lot of concerns and these are the concerns are usually brought up by the staying parent where the staying parents are legitimately concerned whether the children will be looked after and this is especially important for the relocating parent to have a very careful plan. So, to give an example, just saying that we’re relocating and enrolling the children into a school is not good enough. He or she has to make an application to their school confirming that the school has the space and can enroll the children into that school. And also he or she has to satisfy to the Court that the school is actually a good school and the children desirably will have an opportunity to look into it, and understanding that it is the intention of the relocating parent to enroll them in that school, and the children are not dissatisfied or they’re happy with the relocation.

Carly Fan 13:49 That’s really helpful advice from you, Alfred. So, there are many practical considerations before parents decide whether or not they would want to relocate. Moving on, I have to throw out a sad and unfortunate scenario, what happens to child custody if the custodial parent dies?

Alfred Ip 14:09 Okay, if the custodial parent dies, the governing law would be the Guardianship of Minors Ordinance. Usually there will be a surviving parent, that parent would be to guardian, either alone or jointly with the appointed guardian. The appointed guardian will be the guardian who is appointed by the deceased parent. That can be done with a deed of appointment of guardianship, of course, unless the Court has declared that parent unfit for custody. I mean, at the end of the day, the Court will understand that the surviving parent would have a strong bond between himself or herself to the children, and usually the parent will not be deprived of custody, unless there’s a very good reason for doing that.

Carly Fan 14:57 A follow up question for you, Alfred, is whether the Court would treat adopted children differently when it comes to divorce proceedings.

Alfred Ip 15:06 No, the Court will consider him or her a child of the family.

Carly Fan 15:11 Thank you for the clarification. So next, we’re moving on to a not so legal topic, but more related to mental health. We all know that divorce can be linked to specific and long-term impacts on health and overall mental well-being. What are the specific mental health related impacts on children arising out of divorce?

Alfred Ip 15:32 Actually, we have come across a lot of cases when the children are caught in the middle of a very nasty divorce. Um, for the children part it sometimes will lead to some adjustment problems, for example they have social discomfort or learning difficulties, or they may have developed disruptive behaviors. The major issue is out of their own insecurity. The first question that they may ask is: is it because of me that my parents go through a divorce? Is it because of me that my father and mother have to separate? Did I do something wrong? And imagine when the parents are busy going through a divorce, bad mouthing each other, complaining against each other, pointing fingers at each other, they may be a little bit too busy to give enough love and affection or attention to the children. That would definitely have an adverse effect towards them and a lot of times divorce leads to a change of environment, for example, moving to a smaller place because the parents need to maintain two households after divorce, whether they can adjust to a new environment, they may even have to move to another school because of that. Would that be of any effect to children? That is actually sometimes that we advise our clients: would there be any adverse effect to the children if you behave in such a way? So, there are actually a lot of considerations and these are the considerations the Court will definitely have in mind when it’s asked to make any decision or order pertaining to children’s issues.

Carly Fan 17:22 I think it’s very good that you’re bringing up the guilt and the disruptions which the children of divorce cases may face. So, a last question is that, given all their potential impacts, what can be done to reduce the stress on all parties, particularly the children?

Alfred Ip 17:41 I would encourage as to move arrangement and settlement in particular, before the situation has come to a point when the parents cannot talk to each other anymore, they need to acknowledge that there are difficulties and issues in their relationship. They need to address to these issues. If that comes to a point that they realize that the marriage is not working anymore, they have to start talking to friends, or even lawyers about the situation and find out a way to attack it. We call it an exit strategy. It has come to a point that it is necessary to bring up the issue of divorce. The first thing is: what next? Is one party going to move out? Who are the children going to live with? How are they going to be maintained? And what would be the long-term solution to it be as moving schools, moving to a new house, even moving to another country. These are the things that should be discussed among two parents, like sensible adults. Without that, the only way is to rely on court proceedings. It will be a very expensive, long and stressful process and the Court in order to make any decision, it will ask a Social Welfare Officer to intervene by making family visits. The Social Welfare Officer would definitely interview the parents, the children, the school, the teachers and other people who are involved in the children’s life. If the parents cannot communicate with each other properly, the Court may order that the co-parenting coordinator be involved, helping the parents into talking to each other in a sensible manner in order to address to any issue arising out of the children’s life. A co-parenting coordinator is a neutral and impartial third party who assess a separated or divorced couple as a decision maker and facilitator of communication. He or she will help solving problems like education choices, visitation arrangement, etc. and he or she will also help parents to learn to communicate with each other in the pragmatic manner. At the end, he or she will focus on the children’s interest instead of the couple’s.

Carly Fan 20:21 It is indeed encouraging to know that there can be a co-parenting coordinator there to encourage effective communication between the parents. So, to wrap up, thank you, Alfred, for your insights on the issues relating to child custody. And thank you for our audience for listening.

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