3. Can one parent take a child out of Hong Kong upon the grant of a custody order?
It is not uncommon that divorced couple fears that the former spouse would take the child out of Hong Kong either permanently (e.g. for emigration) or for holiday without his or her advance notice, thereby depriving him or her of the opportunity of child's visiting access.
In view of this, custody orders are endorsed with a notice in the form of a direction that neither parent is entitled to remove the child from Hong Kong unless the following conditions are met:
- obtain the approval of the Court; OR
- obtain the written consent of the other parent who is not responsible for taking the child out of Hong Kong, AND the giving of a general undertaking by the parent (who will take the child out of Hong Kong) to the Court to return the child to Hong Kong after any fixed period spent abroad or at the end of any agreed period, or earlier if called upon to do so by the Court.
Disputes often arose between divorced couple over the division of holidays in respect of child access. Costly application would have to be made to the Court to resolve the disputes if the parties failed to come up with an agreement.
To save cost, upon the making of a custody order with the aforesaid (a) or (b) restriction specified on it, it is possible to file with the Court a general undertaking to return the child after any holiday period spent abroad.
This means that when you want to take the child out of Hong Kong, all you need to do is to obtain your spouse's written consent.
It is only when your spouse unreasonably withheld his or her consent that an application will have to be made to the Court. In the case of a normal holiday, it is unlikely that the Court will refuse the application unless there is good reason to do so.
If you believe that your spouse would object to you taking your child to overseas for holidays, you should inform your solicitor well in advance so that there is ample time for your solicitor to make the necessary application to the Court and to have an early hearing.
Permanent removal from Hong Kong
If a parent, who is granted with the custody of a child, intends to leave Hong Kong permanently for some reasons, that parent must make an application to Court so as to obtain an order from the Court allowing him or her to remove the child permanently from Hong Kong.
If the other parent opposes such application, the judge will have to balance the child's loss of regular contact with that parent against the liberty of the applicant parent (granted with custody) to choose where he or she wishes to live. The Court will not usually interfere with the choice of the parent with custody, if his or her decision to move is a reasonable one. As said, the Court would have regard to the interests of the child, which is of paramount consideration.