Many parents from different countries who live in Hong Kong for professional reasons start a family and raise their children in the city. However, if they divorce or separate they will have to deal with 子女撫養權, especially if a parent wants to leave Hong Kong with the child.
It is ideal for unmarried parents to agree on the arrangement for their child in order to avoid the stress and costs of litigation. In practice, it makes sense for an unmarried father to put his name on his child’s birth certificate in order to resolve disputes in the future. For married parents, the best interests of the child come first when the court decides on 子女撫養權 and access arrangements.
Shared 子女撫養權y is promoted because it is best for both parents to realize that they have a responsibility towards their child and that their parental duties do not end with the breakdown of the marriage. If parents want joint custody so that both parents can make important decisions about the upbringing of their children, the court will grant joint custody once the arrangement is in place.
In general, 子女撫養權 refers to a court order for the care and control of the child or the children. Access means the child’s right to be seen by the non-caring parent and, in the case of joint custody, supervised or controlled. On the contrary, if custody is conferred on one parent, the court recognizes that the role of both parents for their child has not ceased as a result of the divorce.
Under customary law, a custody order includes the right to exercise full parental rights and authority. A sole custody order does not restrict parental rights or powers and limits one to the exclusion of the other. Some lawyers believe that the effect of a “sole custody order” is to transfer most, if not all, or some, or all, of the parental rights/authorities to the guardian.
The transfer of sole 子女撫養權 to a parent is no longer recognized when the marriage breaks down, the child’s well-being is safeguarded and a parent is given the necessary authority to make final decisions on matters relevant to the upbringing of the children, taking full and rational account of the views of the other parents. The marriage of the parents of the children is to be treated by the court as an overriding consideration for the welfare and well-being of both children, irrespective of the marital status of the parents. A parent to whom sole custody is conferred will be given the authority to make the final decision in the event of disagreement with the non-caring parent, and the decision must be made after proper consultation and if the other parent believes that the decision is contrary to the best interest of the child the court will be asked to decide on the matter.
Not even though the court considers that a healthy relationship between the parents should be in the best interests of the child. The court can issue a joint custody order if one parent is found unfit.
Before the commencement of proceedings, the child or family falls under the jurisdiction of the court and if a parent wishes to remove the child from Hong Kong, the consent of the other party is required. If the custody order does not impose restrictions on the transfer of the child to Hong Kong and leaves the court alone, one parent must give a written commitment to return the child to the jurisdiction and the other parent must give written consent to the transfer. During the court proceedings, both parents are allowed to move with their child.
In addition to court disputes over custody and access, disputes surrounding the child can also be resolved through private mediation. Once a custody order is confirmed by a notice in the form of instruction, both parents are entitled to remove the child from Hong Kong as long as they obtain the court approval and written consent of the other parent. Both parents are not obliged to return the child to Hong Kong without having spent the agreed time there.
The parent without custody has the right to a reasonable visit, but the court may restrict or terminate the right of visitation. The father of an illegitimate child can apply to the court for the same rights. If the father makes a request, there is no difference in the treatment of the child and both parents can apply for custody, care, and control of access to their child.
Shared custody (as opposed to sole custody) refers to custody conferring on both parents the custody and control of one party. The original justification for a joint custody order, as opposed to a sole custody order, is that one party has the right to decide on all important matters concerning the child’s upbringing, and both parents have that right. The joint custody order symbolizes that the separated parents can continue to play a role in raising the children even after the divorce without being excluded.
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