Child Custody Issue ( Guide for Legal Terms)
Introduction
Couples decided to divorce have to undergo legal proceedings to handle the matters on their child(ren), property and money. In order to facilitate the divorcing parents to have a better understanding on the legal terms, this leaflet introduces some terms relating to matters on their child(ren) which are commonly encountered by the divorcing parents in the legal proceedings. The legal terms are not exhaustive and the applicability are depended on the circumstances of individual cases. You need to consult a legal practitioner for further advice on the legal information below or on your specific case.
1)Guardianship
Guardianship implies the bundle of rights and duties and authority of a parent towards his/her child(ren). This includes the right to make decisions and to be consulted on decisions about the upbringing of the child(ren) and on all aspects of the child(ren)’s welfare. As parties to a marriage cease living together upon separation or divorce and only one of them will live with the child(ren), guardianship may be further divided into:
- Custody
This comprises the bundle of rights that parents have over their child(ren). This includes the right to make all important decision affecting the child(ren) such as decisions regarding his education, religion and medical treatment for the child(ren).
- Care and Control
This is the day-to-day care given by parents to their child(ren) to protect them from harm. In order to take care of the child(ren)’s daily living, the parent granted care and control will live with the child(ren).
- Access
Access is the right to have contact with the child(ren), such as through letters, emails, telephone calls, visiting the child(ren), taking the child(ren) out, etc.
Different families can have different access arrangement. According to the duration of the access to the child(ren), access arrangement can be classified into the following types:
- Staying Access
The parents with access can contact the child(ren) in the daytime and have the child(ren) staying overnight at his/her home during the period of access.
ii.Day Access
The party with access can contact the child(ren), such as taking the child(ren) out, but he/she cannot have the child(ren) staying overnight at his/her home without the consent of the custodial parent.
2)The following orders may be made by the court in child custody proceedings:
- Order on Custody
- Sole Custody Order
The custodial parent granted with a sole custody order could have care and control over the child(ren) and could make important decision affecting the child(ren). If the non-custodial parent wants to be consulted on matters relating to the child(ren)’s welfare, he/she must apply to the court.
- Joint Custody Order
Joint custody is where the court grants custody to both parents although physical care and control is usually granted to only one of them.
- Split order
This order vests daily care and control in one parent and gives custody, in the sense of wider decision-making power, to the other parent.
- Order on Access
- Reasonable Access
When the divorcing parents are able to cooperate with each other, reasonable access may be granted to the non-residing parent, i.e. the schedule and place for reasonable access is agreed upon by the parents.
- Defined Access
When the divorcing parents cannot agree on access arrangements, they may request to have an order for defined access, where the schedule, and sometimes place, of the access is specified in the court order.
- Supervised Access
Under this order, the access by the non-custodial parent will be supervised by the custodial parent, a relative or a third party such as a social worker of Social Welfare Department.
C. Supervision Order
If it appears to the court that there are exceptional circumstances making it desirable for the child(ren) to be placed under the supervision of an independent person, the court any order the child(ren) be placed under the supervision of the Director of Social Welfare.
“The custodial parent” refers to the one who is granted custody of the child(ren) upon separation or divorce.
“The parent with care and control” refers to the one who is granted care and control of the child(ren) upon separation or divorce.
‘The non-custodial parent” refers to the one who is not granted care and control, or custody. Unless under exceptional circumstances, party losing the custody and care and control of the child(ren) may still be given access to the child(ren).
When you and your spouse cannot agree between yourselves on the custody / access arrangement of your child(ren) or when the Court has concerns about the custody / access of your child(ren), the Court may call for an investigation report. For details on the investigation report, please refer to the leaflet “Child Custody Investigation Report (Guide for Parents)”.
July 2009