家族法

Divorce Confidential: Global Overview of Child Custody In Divorce

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.