What factors will be considered in a divorce before child custody is awarded to one or both parties?
divorce custody
The custody arrangements for children after divorce are often the issue that both parties are most concerned about. The Hengcheng team will help you clarify the legal arrangements for custody, visitation and child support to ensure that your relationship with your children is fully protected after the procedures are completed.
custody
In Hong Kong procedures, there are two types of custody. The first is "joint custody" with the other parent's father or mother; the second is "single custody" of the child.
care and control
One of the father or mother who has the right of care and control is responsible for all the daily living, food and daily affairs of the child, and living together is necessary.
Visitation rights
When one parent has the right of care and control, the Hong Kong court will issue a control order so that the other parent has reasonable visitation rights.
Key Child Custody Considerations
When determining custody arrangements, the court will independently examine the specific circumstances of each case and evaluate which option is in the best interests of the children from multiple dimensions.
After divorce, the custody rights of both parties are completely equal in law. If both parties can reach a consensus on the custody arrangement, they can jointly apply to the court for confirmation; if there are differences, the court will make a ruling based on the best interests of the children.
Parenting arrangements usually cover three core matters: (1) child custody (custody), (2) visitation arrangements, and (3) children's living expenses and alimony.
maintain the status quo;
The age gap between parents and children
Accommodation available for children
Advantages of siblings living with one parent
Character, abilities and personality of parents
Family religion and culture
children's own wishes
Parents’ financial resources
Physical and mental health of parents and children
Divorce procedures
According to the Matrimonial Causes Ordinance of Hong Kong, there is a time limit for divorce applications. Unless permitted by a special court, under normal circumstances, two people must be married for at least 12 months before they can apply for divorce.
divorce agreement
The divorce petition (also known as the agreement) needs to fill in the personal information of the two people, listing their marriage date, current marital status, previous address of residence, date of separation and each person's address.
Alimony
The purpose of alimony is to ensure that the normal lives of both parties will not be affected by divorce, so that the party requesting alimony or his or her children can receive financial support and protection.
Divorce between China and Hong Kong
Generally speaking, custody refers to the power to care for and supervise children through a court order. The father or mother who obtains custody after divorce must be responsible for taking care of the children's daily lives and making decisions regarding their children's day-to-day welfare. The court may also grant joint custody.
Key Considerations for Courts to Evaluate Custody
Child custody (custody) must be formally confirmed by a court order. The court will comprehensively consider the parents' parenting ability, financial status and emotional relationship with the children, and award custody to one of the parents, while the other parent can visit regularly as scheduled. In today's society, co-parenting is the most common and recommended method.
Each case is handled independently. Before making a final decision, the court will give top priority to the overall interests of the children and will assess the actual impact of the following factors on a case-by-case basis.
maintain status quo
Based on the best interests of the children, the court prefers to avoid disturbing their existing living environment. If the children have become accustomed to and adapted to the current living arrangements, the court will generally not take the initiative to change the status quo without compelling reasons.
primary caregiver
Children often develop deep attachment relationships with their primary caregivers. Separation can cause emotional problems and affect the physical and mental development of children. The court will usually arrange for the children to continue to live with the parent who has the primary care of them in daily life.
Age of parents and children
Age factors play a role in parenting decisions. Courts generally prefer that infants and young children be placed in the care of their mothers. If one parent is older, the court may also consider this as one of the considerations in assessing long-term care capabilities.
Parents’ ability to meet their children’s needs
The court will evaluate the earning ability, health status and financial resources of both parties to determine whether each party can adequately take care of the daily needs of the children. Even if one party has engaged in inappropriate behavior, it does not necessarily directly affect his or her ability as a parent. The overall interests of the children are always the primary consideration of the court.
Common custody issues
The following has compiled the most frequently asked questions when handling custody arrangements to help you have a preliminary understanding of the legal process before consultation. If you have specific situations that require evaluation, please contact the Hengcheng consulting team.
What is the difference between joint custody and sole custody?
Joint custody means that both parties have custody of the children. Normally, they can make unanimous decisions about the children's life and growth, such as where to go to school, where to live, who will take care of them, etc.
However, joint custody of children also involves allocation of the care and control of one party and the visitation rights of the other.
In sole custody, all rights over the children are given to one party, while the non-custodial owner can only have regular visitation.
Who is responsible for paying the children’s living expenses after divorce?
Theoretically, if both parties have income, both parents must jointly pay for the children's living expenses. If both parties agree that one party will pay in full, and the court also believes that this arrangement is the best and satisfies the court, it is also acceptable.
How to determine the visitation time? Can the other party not be allowed to visit the children in the future?
Visitation belongs to the interests of the children and the divorced party. No interest of the children should be deprived, so the other party cannot be arbitrarily denied effective visitation.
Unless the child's safety is threatened, such as domestic violence, or the visitor exhibits unusually corrupt behavior, the court deems it inappropriate to conduct visitation.
Visiting time is generally divided into three types: reasonable visitation, free visitation and defined visitation:
- Reasonable visitation; Reasonable time is defined as a reasonable living time that can be coordinated by both parents. For example, if the child is sleeping late at night or cannot leave school during school hours, this is an unreasonable time.
- Free visitation: The agreement on free visitation is broader, and both parties often dispute in court over what constitutes free time. It is generally not recommended.
- Defined visitation; Defined visitation will generally list the days of each week, the time period, how both parties will hand over the children, and how the four major holidays of each year will be allocated.
Can siblings live with their parents alone after divorce?
From the court's perspective, children are not the assets of both parents, and it is the child's best interest for them to grow up together. If the two people have disagreements about custody rights, the court will send the Social Welfare Department to visit the home and prepare a report for the court. The court will make a decision based on the report and the child's welfare.
However, 90% of the courts have ruled that after a child’s parents divorce, it is in the best interests of the child that the siblings should live and grow together.
Custody rights for children born out of wedlock.
Custody rights for children born out of wedlock are related to all custody and upbringing cases of children. The court will first consider the best interests of children under the age of 18. According to Section 3 of the Guardianship of Minors Ordinance, in any legal proceedings conducted in any court, when dealing with issues involving the custody, upbringing or property management of a minor, the court must give the minor’s best interests as its primary consideration, and must consider the minor’s wishes on a practicable basis having regard to the minor’s age and understanding, as well as any information prepared by the Director of Social Welfare. Both father and mother have equal rights and powers, but if the child is born out of wedlock, the mother has all the rights and powers of the parents. The father may be granted by the court some or all of the rights and powers that the law would have given him as a father if the minor had been born in wedlock (that is, assuming that he and the mother were married).
Hong Kong divorce custody price
Child custody arrangements are a vital part of the divorce process. Hengcheng provides professional custody agency services to help you understand the legal procedures, prepare the required documents, and follow up throughout the entire application process to effectively protect the legitimate rights and interests of you and your children.
Whether you are applying for a custody order, visiting arrangements, or related matters involving your children's living expenses, we can provide you with personalized professional advice.
Scope of custody agency services
Child custody application and custody order processing
Visiting Arrangements and Application for Visiting Orders
Application for children’s living expenses and alimony
Drafting and processing separation agreements
Full agency handling of divorce application
Distribution of joint property between husband and wife
Application to vary custody order
Application for Protection Order and Supervision Order
Matters related to children born out of wedlock
mediate differences between parties
- An uncontested divorce can be completed in as little as 5 months (a temporary divorce order can be obtained in about 3 months)
- Professional preparation and advice before attending the hearing
Starting from HKD$2,000