mean either joint physical custody (where the children stay half the time with each parent) or that the decisions on the upbringing of the child will be made jointly by both parents.
1.42Joint physical custody is more likely to be successful where both parents have a reasonable relationship and do not have dysfunctional patterns of behaviour. If both parents are positively motivated then it can work. Joint custody should not be forced on parents, as it is only practicable where, for instance, there is adequate housing for the children at both parental homes and reasonable proximity between those homes.
1.43The issue should be how to encourage both parents to be involved with their children, both before and after divorce. Any change of the law needs to ensure sufficient flexibility to enable the law to reflect changing demographic trends in families. Those changes include smaller families, more mobility, more common law relationships, and an increase in shared parenting.
1.44Ironically, as more families divorce, the single parent, usually the mother, who has been allocated custody because of more physical time with the children, has to rely more on relatives or child care workers as more women return to work. Thus, the old preference for women to have custody as they were likely to stay at home, has changed to a situation in Hong Kong where both parents are likely to be working long hours. The child is looked after by a domestic helper who is not necessarily specially trained in child care, or a grandparent or other relative. This reduces the argument in favour of maternal custody, though the law and the decisions of the courts are not necessarily reflecting those demographic changes. We will next look at the current law and practice in Hong Kong in chapter 2.