D. Custody of children
In Hong Kong, proceedings relating to the custody of children are contained in:
- the Guardianship of Minors Ordinance (GMO), Cap. 13 ;
- the Matrimonial Causes Ordinance (MCO), Cap. 179 ;
- the Matrimonial Proceedings and Property Ordinance (MPPO), Cap. 192 ; and
- the Separation and Maintenance Orders Ordinance, Cap. 16 .
1. The Guardianship of Minors Ordinance
The GMO governs court proceedings relating to the custody and upbringing of children. Under the GMO the welfare of the child in question is to be the first and paramount consideration of the courts. Under section 3 of the Ordinance, in any proceedings before any court relating to the custody or upbringing of a minor or the property of a minor, the best interests of the minor are the first and paramount consideration. Due consideration should be given to the views of the minor where it is practical to do so having regard to the minor’s age and understanding and to available information from the Director of Social Welfare.The rights and authority of the mother and father of a child are equal. Where the child is born out of wedlock however, the mother has all the parental rights and authority. Even so, an unmarried father may be granted some or all of the rights and authority he would have had as a father had the child been born legitimately (that is, had he and the mother been married).
2. Custody of children in matrimonial proceedings
The MCO governs divorce whilst the MPPO deals with ancillary and other relief in matrimonial proceedings. Section 19 of MPPO states that the court may make such order as it thinks fit for the custody and education of a child in matrimonial proceedings such as divorce. Sole custody orders are currently the norm rather than the exception. Under a sole custody order the child lives with one parent, the custodial parent, who has the right to make the decisions regarding the upbringing of the child. The non-custodial parent is usually granted access, which enables contact to be maintained with the child. There is however increasing support for replacing custody orders with parental responsibility orders to emphasise that parents have a responsibility to work together in the best interests of their children and that protracted legal disputes over custody are not in best interests of children.
For more details about matrimonial matters, please click here.