Under what circumstances would the court allow an application for joint custody?

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In a recent matrimonial case XSLB [2018] CHKEC 639, the Court dismissed the Husband’s application for joint custody of the son. The Court was of the view that granting the custody, care and control of the son to the Wife would be in the best interest of the son on grounds that the two parents had poor connection and communication. For many years in the past, they had been unable to effectively communicate and cooperate with each other in respect of various matters of their son. Besides, the Wife was willing to give a number of undertakings, confirmations and consents to relieve the Husband’s worries.

Background

The parties in this case were married in 2012. By 2015, the Husband left their former matrimonial home and the parties began to live apart. In September 2016, the Wife filed a petition for divorce on grounds of unreasonable behavior. On 21 February 2017, upon the application by the Wife’s lawyer and in default of appearance of the Husband, the custody, care and control of the son was granted to the Wife, with reasonable access to the Husband.

On 26 May 2017, the Husband took out two summonses seeking the son’s custody, including overnight access. The Husband originally sought sole custody, but during the trial, he accepted joint custody arrangement.

The law

Generally, when parents are divorced, a joint custody order that allows both parents to participate in the children’s custody would be in the best interest of the children. However, if the parents are unable to cooperate practically with each other on substantial matters concerning the children to make rational decisions, a joint custody order would not be in the best interest of the children.

Decision

The Court found that the two parents had poor connection and communication. For many years in the past, the parties had been unable to effectively communicate and cooperate with each other in respect of various matters of the son. Recently, with the help of social workers, things appeared to have improved slightly between them. Yet, the parties still hold very strong prejudice against each other, as seen from their testimonies. Furthermore, since the Wife and the son live in Hong Kong, whereas the Husband lives in Mainland China, this would inevitably create further difficulties for the parties to communicate and cooperate in matters concerning the son.

The Husband was worried that the Wife might remove the son to live abroad on the pretext of taking the son on a vacation abroad. In this respect, the Wife was willing to give various undertakings, confirmations and consents to relieve the Husband’s worries.

The Court found that there was no evidence that suggested the Wife intended to leave Hong Kong with the son permanently to live in the United States. As seen from the evidence, the Wife lived and worked in Hong Kong and the son also went to school in Hong Kong. The Court found that the Husband’s “worries” were merely “shadow catching”.

The Wife further undertook that if she was granted the sole custody of the son, before making any decisions in respect of the son’s custody, she would use her best endeavour to inform, consult and discuss with the Husband in advance and take the Husband’s view into account. Upon careful consideration of all circumstances of the case, the Court held that a joint custody order was neither appropriate in this case nor in the best interest of the son.

Finally, the parties were reminded that a sole custody order did not exclude the Husband from participating in important matters that would affect the son. Although sole custody was granted to the Wife, before making major decision that would affect the son, such as major healthcare and medical decisions or decisions as to further studies, going abroad, emigration and religious belief, the Wife shall consult and actively take the Husband’s opinion into account.

For a parent facing a divorce or separation, one of the primary concerns can be which parent will gain custody of the child. Ideally, children are better served when both parents play a large role in their life. There is no hard and fast rule for a sole or joint custody order. Given that the background of each family is different in different cases, the Court will consider all factors before a decision is made. Parents are advised to seek legal advice before making any application for custody order. After all, the child’s welfare and interest is always the primal concern of the court.

 

 

 

 

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
Published by ONC Lawyers © 2018