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Divorce Confidential: Global Overview of Child Custody In Divorce

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Entertainment journalists are not lacking for work, as juicy gossip about celebrity breakups continue to make headlines across the globe. Last year’s most surprising split being the divorce of mega superstars, Brad Pitt and Angelina Jolie. There have been numerous reports about what caused this picture-perfect relationship to sour, including allegations of misconduct against the children and abuse of alcohol and drugs. Since initial news broke of the split, Brad Pitt and Angelina Jolie have made great strides by keeping details of the divorce under wraps and agreeing on a settlement.  More recently, there is even talk of a possible reconciliation!

In case of Brad and Angelina, what we do know is that when Angelina Jolie initiated the divorce proceedings and her Petition for Dissolution requested “sole physical custody” of the couple’s six children. This is a significant detail because California laws (and most other states across America) encourage “joint custody” of children. An individual who requests sole physical custody for one reason or another usually makes this request because of concerns about the other parent’s ability to care for the children.

While we may never know Angelina Jolie’s real reasons for requesting sole physical custody, the important point is that California law, like most states in the U.S., encourage joint legal and physical custody of children. However, not all jurisdictions across the globe follow these same standards. As a California attorney, now practicing as a Registered Foreign Lawyer (California, USA) in Hong Kong, I have discussed the differing child custody laws between California and Hong Kong with Stephen J. Peaker, head of the Family Law Department at Oldham, Li & Nie (OLN) and a fellow of the International Academy of Family Lawyers (IAFL). To begin, let’s take a look at what joint legal and physical custody means in California and why it’s so important for the health of families of divorce:

1. California Favors Joint Legal and Physical Custody

Joint legal custody means both parents agree to share in the rights and responsibilities to make decisions relating to the health, education and welfare of a child. Joint physical custody means both parents agree to equally share in the physical care of a child. California law encourages divorcing parents to share responsibilities in both the legal and physical custody of a child because parents who share this responsibility are ultimately working towards the “best interests” of a child. The ultimate goal is to ensure the health and success of the child. Many other countries, including England, Scotland, Australia and New Zealand encourage this model of joint parental responsibility and as family law practitioners, it is our hope that other countries will follow this model. Co-parenting, while difficult at times, encourages healthy relationships when a family unit is broken.

2. Legal Custody, Physical Custody & Control In Hong Kong

In Hong Kong, parents are usually given joint legal custody, but with physical care and control to one parent and with reasonable access to the other parent. This is currently done without reference to joint parental responsibility, which fails to encourage separated parents to act collaboratively in the best interests of the child. When joint custody, care and control is given to one parent, too much authority is given to one individual which can sometimes result in the reasonable access parent having less contact with the child and a diminishing role over time despite having joint custody. This issue is especially important in Hong Kong because many local citizens have dual nationality (following the transfer of sovereignty in 1997 from the United Kingdom to China) and many foreign nationals live and work in Hong Kong. When these citizens with dual nationality divorce in Hong Kong, they are in a system where the best interests of children are the primary focus, but where the law is historically the same law as the United Kingdom had prior to the enactment of the 1989 Children Act. Fortunately, Hong Kong courts are making great strides and moving forward towards a more child-centered model. This is good news for parents who wish to continue to nurture a healthy relationship with the children after divorce.

3. Steps Towards Joint Parental Responsibility Focus

The Law Reform Commission of Hong Kong has published a report on “Child Custody and Access” which has been a point of discussion since March 2005. The primary focus of the 72 recommendations in the report is to emphasize continuing responsibility of parents towards their children even after divorce. This is already evident in Hong Kong courts, which are now making more orders for “joint custody” which divorcing couples in California are already accustomed to. In Hong Kong’s premier radio broadcast show called Backchat on RTHK radio, Stephen Peaker, along with other key players in the family law community in Hong Kong discuss why this is significant for families in Hong Kong. Essentially, this new reform is significant because when parents decide to no longer remain as life partners, the children are no longer deprived of having the love and care from both parents.

4. Input from Children

In custody proceedings in California, a child may be given the opportunity to speak his/her mind about preference as to whom he/she would like to live with. Many judges will consider a child’s preference if the child is at an age of maturity and emotion. Hong Kong’s move towards a child-centered focus will now allow a child’s preferences to be brought into the system. Similar to the appointment of minor’s counsel in California, Hong Kong already has a system for separate representation of children via the Official Solicitor. Stephen Peaker praises these reforms and the role of the Official Solicitor as this is an important matter for children and their families. Mr. Peaker anticipates the Hong Kong government will do their best to bring this to the table as soon as possible. Since 2015, the Hong Kong government and the Chief Justice have promoted the introduction of the law as soon as possible, which is a very welcome move.

No matter where you are located across the globe, the focus in a divorce involving children should always be the “best interests” of the children. Even a child-centered model (as seen in California) does not work without the full cooperation of parents in divorce. As I stated in my article about co-parenting, you can take steps to encourage successful co-parenting with 1) regular communication; 2) seeking assistance from a professional when communication is an issue and 3) avoid court litigation because a court can’t always make the best decision for you and your family. Parents working together is always the best option for a healthy future.

Click here for the article published on The Huffington Post.

Safeguard the Board from Email Scam: Asset Recovery and Protections

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OLN’s partner Anna Chan, and associate, Jonathan Lam were invited by the Hong Kong Institute of Chartered Secretaries to present on the topic of “Safeguard the Board from Email Scam: Asset Recovery and Protections” on 10th April 2017. The 1.5-hour seminar drew over 180 attendees and they were given an overview on various remedial measures and protection procedures in view of the increasing prevalence of email scam. The seminar also touched on protection of board and company secretary, a topic which is of major concern to the attendees as professional company secretaries.

Email us at marketing.oln@oln-law.com to receive a copy of the presentation slides.

Is your personal data at stake because of the increased transparency in tax administration through Automatic Exchange of Information (“AEOI”)?

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It is an inevitable trend under the international tax reform that countries will be working together to promote transparency in tax administration. Hong Kong, as a responsible international citizen and a leading financial centre, has recently put in place domestic legislation in relation to Automatic Exchange of Financial Account Information (“AEOI”).

1. What is AEOIs?

AEOI is a new system that involves the transmission of bank account holders’ financial information from Hong Kong to an overseas tax jurisdiction with which Hong Kong has entered into an AEOI agreement (or known as an “AEOI Partner”).

The transmission of the information would involve the following steps:-

What sort of information will be furnished and exchanged?

  • Name, address, jurisdiction of resident, tax identification no., the date and place of birth (in case of individuals)
  • Account number
  • Account balance or value as at the end of the specified information period or other appropriate reporting period
  • Interest income, dividend income, other income generated from the financial assets, gross proceeds from the sale or redemption of financial assets

Whom will the IRD exchange information with?/ Who are our AEOI Partners?

  • From 2018 onwards: Japan, United Kingdom for information of the preceding year
  • From 2019 onwards: Korea
  • Timeframe to be determined (legislation in progress): Belgium, Canada, Guernsey, Italy, Mexico, Netherlands

Additional jurisdictions will be added to the list upon signing of the following agreements with Hong Kong:-

  • A comprehensive avoidance of double taxation agreement (“CDTA”) or tax information exchange agreement (“TIEA”); and
  • A competent authority agreement (“CAA”)

2. Which account holders will be reported?

  • Account holders (both individuals and entities) who are subject to taxation as a resident in other jurisdictions.
  • Hong Kong taxpayers who are not tax residents of any territory outside Hong Kong will not be reported.

How will the reporting financial institutions identify the accounts held by tax residents of other jurisdictions?

The Inland Revenue (Amendment)(No.3) Ordinance 2016 provides the reporting financial institutions with the legal basis to collect the required information from account holders:-

(1) For accounts opened on or after 1 January 2017

Reporting financial institutions should request a self-certification from the account holder.

(2) For pre-existing accounts

If a reporting financial institution has doubts about the tax residence of an account holder, it can seek a self-certification from the account holder to verify its tax residence.

Will the account holders be sanctioned?

As a self-certification is a formal declaration that the account holder makes in connection with his / her tax residence, if the account holder has doubts about his / her tax residence, professional advice should be sought.

An account holder who knowingly or recklessly provides a statement that is misleading, false or incorrect in a material particular in making a self-certification to a reporting financial institutions is liable on conviction to a fine at level 3 ($10,000).

For a deeper discussion or any enquiry, please contact one of our members of the Tax Advisory team.

OLN Sponsors the ALB In-House Counsel Summit

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On Tuesday the 12th of September 2017, OLN sponsored the ALB In-House Counsel Summit held at the Conrad Hotel. Big thank you to our Partners Richard Healy, Chris Hooley and Anna Chan; as well as Senior Associate Carmen Tang, Associate Jonathan Lam and Consultants Adelina Wong and Gary Wong for volunteering and representing OLN.

This was a great opportunity for OLN to increase our brand presence among in-house counsels and other legal practitioners — as well giving our members the chance to network and be a part of the various workshops.

There were approximately 500 attendees that registered for the different workshops throughout the day; with heavy foot traffic passing our booth situated outside the Grand Ballroom. We were in contact with a variety of guests; many of which were interested in our practice areas and particularly our mints and golf tees!

We hope to build on the success of this event for the upcoming 2017 In-House Congress Hong Kong on the 10th of October 2017 at the Marriott Hotel where Partner, Anna Chan will be delivering a presentation on “Cybersecurity and Data Privacy”. More details to follow.

Legal Assistance for Fintech Start Ups

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Hong Kong’s “start ups” have seamlessly moved away from “dot.com” to “Fintech”, but irrespective of the actual business of the “start ups” and irrespective of the “APP” or the “tech solution” involved, there are still a number of basic business rules that should apply and which will assist in reducing Founder risk and in making the business as attractive as possible to Investors.

OLN’s Corporate Commercial Practice Group can assist with strategizing on each aspect of the “start-up”, whether that is “pre” start up when looking for initial funding, when the start up is operational, or when there is business growth and the need to look for additional funding or investment.

All these aspects will invariably require clarity of thought and in having documentation that is properly tailored to the operational and business needs of the company.

In this respect, are you aware of all the different types Hong Kong Government funding that could potentially be available to you: https://www.gov.hk/en/business/supportenterprises/funding/. OLN can assist in all procedures and applications for trying to secure such funding.

OLN’s Corporate Practice Group has extensive knowledge, not only acting for Founders, but also acting for private equity investors, so OLN can assist and provide all background information to move forward with the tailored drafting of:

  • Non disclosure agreements;
  • The Term Sheet or Memorandum of Understanding;
  • The commercial terms for the Founders to enable them to put a Shareholder Agreement in place;
  • The Employment Contracts for staff members;
  • All protections to enable relevant intellectual property to be registered;
  • Privacy Policies and in ensuring that data protection principles are understood and dealt with; and
  • Corporate compliance procedures, which will need to be upheld at operational level.
  • We can also assist and advice on the strategy for the use of block chain, smart contracts and cryptocurrencies and in ensuring that all regulatory guidelines are adhered to and or approvals obtained on any aspect of the intended business, especially where data privacy and data protection is involved.

 
OLN’s ongoing work with the Trade and Industry Department and with the Hong Kong Science Park enables us to have a clear understanding of what “start ups” and SMEs practically need.
OLN’s services are tailored to be as practical and pragmatic as possible, so that each client receives proper input and advice relevant to their actual business and needs.

OLN Supports Action Asia Kayak Event

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It was all smiles on Saturday at the annual Action Asia Kayak ‘n’ Run event with many children from Hong Chi Winifred Mary Cheung Morninghope School being excited to be taken out on a kayak course with experienced instructors for short little races around Deep Water Bay. They all thoroughly enjoyed the outdoor experience and the rare taste of nature, before enjoying lunch at a nearby restaurant. OLN has supported Action Asia for many years and thank you to those that volunteered on the day.