Navigating a tough time in your relationship or marriage? Dads, here’s what you need to know about child custody rights for fathers.
Going through a separation or divorce is never easy, and it only gets more complicated if you add your kids into the equation. Between the emotional turmoil and legal logistics, a common topic tends to surface: child custody. While mums are seen as the traditional child caretaker, more fathers today are stepping up and playing an integral role in childcare.
So, how does a separation or divorce implicate a father’s role when it comes to custody rights? How can you secure meaningful time with your kids and still be a part of their upbringing? We bring in family and divorce lawyer Jocelyn Tsao to unpack all you need to know about fathers’ custody rights and navigating this transitional period.
Meet the expert
Jocelyn Tsao is the managing director of Withers Hong Kong and leads its family law team. With over 15 years of experience, she handles high-profile divorces, custody disputes, and complex financial cases (trusts, cross-border assets, and digital wealth). A seasoned litigator and mediator, she’s recognised by Doyle’s Guide, Legal 500, and Chambers and Partners for her expertise in child relocation and high-net-worth matrimonial law.
Your questions on fathers’ custody rights answered
Question: Is it true that mums always win custody in Hong Kong? What rights do hands-on dads have?
Answer: Myth busted! This is not true. Fathers have equal parental rights as mothers, which is why, in most cases, both parents will have joint custody.
Whether a parent can have “care and control” of their child depends on who the child’s primary carer is. In other words, the parent who’s responsible for managing the daily routine and needs of the children, which includes their schooling, extra-curricular activities, tutoring and medical appointments.
With modern-day fathers becoming increasingly hands-on, there have been cases where the father is granted “care and control” of the children. Or, in cases where no distinct parent is responsible for the child’s day-to-day care, “shared care and control” of the children is granted, meaning a fairly equal split of time with the mother.
Question: If we were not married when our child was born, do I have any legal rights as a father?
Answer: Unfortunately, you do not share the same legal rights as the mother. There’s no legal presumption of paternity when a child is born outside of a marriage.
To have equal legal rights, fathers of children born out of wedlock will need to actively seek a court declaration (under Section 3 of the Guardianship and Minors Ordinance). For an application for a Section 3 Declaration, the court will look at the degree of commitment which the father has shown towards the child; the degree of attachment which exists between the father and the child; as well as the reasons for applying for the order.
These legal parental rights granted will include custody rights of the child. It encompasses the right to be consulted over important decisions in the child’s life, such as their school, country of residence, religion, and medical decisions made on their behalf.
Question: What’s one thing the court will look out for when deciding custody rights for fathers?
Answer: To determine child custody rights, the court will order a social investigation report to be prepared. How does this work? A social worker will be assigned to observe and interview both parents, the children, and anyone relevant to the care of the children. The social worker will also observe interactions between the parent and their children to make a recommendation for custody, care and control, and access.
Additionally, the court will look at the family’s status quo, meaning whether the father has been primarily managing the children’s daily lives in all aspects. It is advised that hands-on dads be able to demonstrate their commitment and capability in looking after their children. Actions such as ferrying the children to and from school, supervising their schoolwork, and being present for them at home will help build a stronger case.
Question: What is your best advice for dads who want to stay meaningfully involved after separation?
Answer: A lot of parents argue tooth and nail over the split of time with their children, but focus on the quality of time instead. Even if you aren’t the parent with “care and control” of your children, it is still possible to maintain a close relationship if you make good use of your time with them. It’s the little things that count, from being present and available for them to having conversations and participating in meaningful or fun activities together.
Still have unanswered questions on custody rights for fathers, or navigating a separation or divorce? Reach out to Jocelyn Tsao of Withers to find out more.
This post is in partnership with Withers.
