Really important question on custody rights

[NewMommie]

Does anyone have good information on what custody rights are in Hong Kong for a couple married under Hong Kong law? The scenario is this - the couple met and married in Hong Kong, and the children are born in Hong Kong, but are both expats from the same home country. In the case of divorce/separation, can the mother take the children back to the home country, or will the courts force her to stay in Hong Kong with the children?

[jvn]

Sorry, I can't help but I think there were some threads on this subject on GeoExpat - maybe try there.

[NewMommie]

Thanks jvn - my friend ended up speaking with a family lawyer and I thought it was interesting enough to share the results of the conversation.

Essentially on custody issues the HK courts will rule in favor of the best interest of the child, but there is a strong preference toward where the child "habitually resides", and in this case although they are expats they met and married in HK and had a child in HK, so the child habitually resides in HK even though neither of the parents is a HK resident or PRC citizen. She is now in the position of having to make a case for her to have custody based on the fact that she has been raising their son, but also that she cannot stay in HK because she can't work here, etc, therefore she has a better support system back home. The lawyer says courts will favor the mother on custody, but again, there is a strong interest in keeping the child where he has grown up (in a way a silly argument because he's still basically a baby and they haven't lived in HK that long)...which would essentially trap the mother in HK unless she were to give up custody of her child. Apparently there is a Hague Convention parental abduction treaty that HK signed as well, which means you can't just run back home with your child or HK has the right to petition to bring you back? (Not that I would advise something like that!)

I guess the take-away is that if you are feeling trapped in HK and isolated, which I read sometimes a lot of women in HK are when they come here with their husbands, you should try to make a point of visiting your home country frequently to have some evidence that HK is not the home residence. This lawyer is saying honestly it's best to just have an agreement on custody between the parents because the court can rule in some awful ways. But of course, they are going through a messy divorce so that's not going to be easy for them...

[carang]

what intrigues me is this: the mother has no legal right to live in hk (if she is not working with a work visa)... her "dependence" on the father effectively ends when the marriage ends.

how in the world would the HK gov't make a case AGAINST the mother returning to the home country with the child? she has no right to live here once her dependence ends....

[carang]

ps> don't know why she COULDN'T work here? she has a dependent visa, she's allowed to work.

[NewMommie]

Yes you are totally right - she COULD work here, and that's part of the issue. They actually met in Hong Kong when both were on work visas from their respective companies. But she is making the case that she can't work here again since she has no family here and if she's working and the ex-husband is working, the kid (who is basically just a baby still and not in school) won't have any parents around. I also thought this was a strange result but I think the outcome will vary based on what the courts ultimately decide, so the point is that if any moms are in precarious positions, just to have overwhelming evidence to support a return to the home country if that is something that is important to you. I think either way it's a sad situation, because the child will have to live far away from one of his parents, unless one of them makes a sacrifice. And in this case (although I am biased since I have only talked to the mother), I suspect the mother is more willing to make sacrifices than the father.

[carang]

i highly doubt that the gov't will accept her reasoning that she CANNOT work... hk is known for having plentiful, relatively cheap domestic help!

honestly, she doesn't want to return home because she can't work here... she wants to return home because she wants to be with her family and their support. there is nothing wrong at all with THIS reason....but to say that she "can't" work here is an out and out fabrication of the facts.

the ONLY thing that is stopping her from working here is the fact that she wants to go home... it has nothing to do with "no parent" to take care of the child....after all, in her home country, if she goes to work, there will be no parent to take care of the child!

[carang]

sorry, don't mean to come across as being argumentative... just considering what the courts and more especially, the lawyers, will make of her "arguement"...