1. Best Interests of the Child

• The paramount principle: Courts always decide based on what is best for the child, not the parents’ convenience or wishes (Cap. 13, s.3).
• Factors include: welfare, emotional needs, education, health, stability, and the child’s own views (if mature enough).

2. Types of Custody Orders

• Sole custody: One parent makes all major decisions (e.g., education, medical, religion).
• Joint custody: Both parents share responsibility and must agree on major decisions.
   Even with joint custody, the child usually lives with one parent (the “care and control” order).
• Split custody (rare): Different children live with different parents.
• Shared care and control (increasingly considered): Child spends substantial, structured time with both parents.

3. Care and Control vs. Access

• Care and control: The parent the child lives with daily (day-to-day decisions).
• Access (visitation): Rights of the non-resident parent to spend time with the child.
• Can be “reasonable access” (flexible) or “defined access” (fixed schedule, e.g., weekends, holidays).
• Supervised access may be ordered if safety concerns exist.

4. Parental Rights & Responsibilities

• Both parents remain guardians even after divorce, unless the court removes guardianship.
• Guardianship covers long-term welfare decisions (education, medical treatment, religion, etc.).

5. Practical Considerations the Court Looks At

Courts will assess:

• Age and needs of the child
• Who has been the main caregiver historically
• Financial capacity of each parent
• Stability of living arrangements
• Willingness to facilitate the child’s relationship with the other parent
• Any issues of violence, neglect, or abuse

6. Relevant Case Law

• LKW v DD (CFA 2010) – though about finances, it reaffirms the fairness and best interests approach.
• KEWS v NCHC (CFA 2013) – stressed realistic consideration of financial support and care needs of children.
• Hong Kong courts often follow English authority (e.g., White v White) but always adapt to local needs, especially regarding children.

Everyday Example

Imagine parents divorcing:

• The mother has been the main caregiver, but the father has stable work hours and a supportive family network.
• The court may order joint custody, grant the mother care and control, and give the father defined weekend and holiday access.
• If the child is 12 and expresses a strong wish to live with the father, the court may consider this, but still weigh the long-term welfare carefully.

Practical Takeaway

• Custody in Hong Kong is not about parental “rights” but about the child’s welfare.
• Courts favour arrangements that allow both parents to stay involved unless it is harmful to the child.
• Parents are encouraged to settle custody issues through mediation before going to court.