No Ring, No (automatic) Rights! Unmarried Fathers’ Parental Authority and Responsibilities
In Hong Kong, the parental authority and responsibility of a mother and father who are married, are equal. However, the legal position of unmarried fathers is significantly different from that of an unmarried mother. With respect to a child born out of wedlock, legally the mother is automatically endowed with full custodial rights and parental authority, whilst the biological father has none. This is regardless of his name appearing on the birth certificate or any recognition of his paternity.
There is no definition under Hong Kong legislation for “custody rights” or “parental authority”. However, they usually cover the right to make decisions on major issues for children concerning education, extra-curricular activities, health, religion, and residence - and an unmarried father does not get a decisive say in those decisions as of right. These decision-making powers remain solely with the mother unless the father applies to the Court and successfully obtains the relevant Order.
How an Unmarried Father Can Obtain Parental Authority and Responsibility
To secure legal rights, the unmarried father must apply for a Court Order under the Guardianship of Minors Ordinance (Cap. 13) granting him some or all parental rights and authority (as applied for), which he would otherwise have had, if the child were born within marriage.
The Courts typically consider various factors such as the father’s commitment to the child, his involvement in the child’s upbringing, the strength of their relationship, and his reasons for seeking the Order. Each case is fact specific and the paramount consideration is whether an Order, and it’s extent, would be in the best interest of the child. Early legal advice helps protect the child’s and the unmarried father’s rights and ensures the most effective steps are taken.
Why Legal Recognition Matters
Without a Court Order, an unmarried father may face obstacles when decisions to be made over a number of significant matters related to a child’s upbringing are in dispute. This could include matters such as what school the child attends, whether they should undergo a medical procedure, changing the child’s name, securing the child’s return to Hong Kong following a wrongful removal by the unmarried mother or appointing a testamentary guardian.
It is best to consult a solicitor to understand your options.
This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with above.