Ningbo divorce agreement agrees that custody belongs to the other party, can it be changed later?

The fact that the divorce agreement stipulates that the children will be raised directly by the other party does not mean that the relationship of support is fixed. As long as the subsequent statutory circumstances arise, the other party may sue the court for a change in the dependency relationship. However, the starting point of the court's review is always whether it is more conducive to the growth of minor children, rather than who is more aggrieved and who wants children more.

This means that just because one's conditions have improved, the other party has remarried, or the child has expressed his desire to live with him, it may not be enough to get support. Evidence is required that the direct dependant is unfit to continue to support, or that the change itself is clearly more in the interests of the child.

1. legal basis

article 56 of the (I) of Interpretation of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code lists four types of situations that should be supported: the party living with the child is unable to continue to raise the child due to serious illness or disability; children who have reached the age of eight are willing to live with another party who has the ability to support them; there are other legitimate reasons to change.

Article 1084 of the Civil Code also establishes the principle of being most beneficial to minor children, and stipulates that the issue of the upbringing of children who have reached the age of two shall be decided by the court according to the specific circumstances of both parties, and the children who have reached the age of eight shall respect their true wishes. These two provisions together constitute the review framework for changing the dependency relationship.

How to understand the 2. four types of statutory circumstances.

The first category is objective inability to support, mainly refers to the direct support party suffering from serious illness or incapacity of care due to disability, the need for medical records, disability identification and other materials to support. The second category is subjective misconduct, including bad habits such as failure to support obligations, abuse, domestic violence, gambling and drug use, which usually have the most intuitive negative impact on the child's living environment.

The third category is the wishes of the children. If the children who have reached the age of eight clearly express their willingness to live with the other party and the other party has the ability to support them, the court will generally respect them. The fourth category is the bottom-line clause, which is used to cover legitimate reasons other than the first three categories, but the application scale is stricter, and it needs to be specified why maintaining the status quo would be clearly detrimental to children.

How to prepare 3. evidence

in view of the situation that the direct caregiver is not suitable to continue to raise, common evidence includes feedback from school teachers, medical records, alarm records, certificates from neighborhood committees or village committees, neighborhood testimonies, chat records, etc. The focus is on presenting the objective facts that children lack care for a long time and their living and learning status is obviously declining, rather than unilateral evaluation.

In view of their own support ability, they should prepare income certificates, housing certificates, working hours descriptions, family members who can assist in taking care of them and other materials to prove that their children can obtain a stable and continuous living and educational environment after the change. If the child has reached the age of eight, he should also fully communicate with them and respect their true wishes, but should not be guided or pressured.

4. the weight of the will of children over eight years of age

eight years old is an important node. If the child has reached the age of eight, the court will take the true will of the child as an important consideration when judging, but it will still be examined together with the conditions of support of both parties, and the will itself is not a decisive condition. The court usually hears the children in an appropriate manner to avoid them facing a direct confrontation in court.

What needs to be reminded is that if the child is under the age of eight, the court mainly judges based on the parenting conditions of both parents and the current situation of the child's life, not the subjective wishes of the child. At this time, it is more effective to focus on the stability of their own parenting conditions and living arrangements than to repeatedly emphasize who the child wants to be.

5. Ningbo Area Practice: Family Investigator, Social Investigation and Pre-litigation Mediation

there are family investigators and psychological counseling mechanisms in family trials in Ningbo. In cases involving custody disputes, the court can entrust family investigators to visit families, schools and communities to verify the actual life and care of children, and introduce psychological counseling when necessary. Such mechanisms make judgments more dependent on objective investigative material than on oral statements by both parties.

In practice in Ningbo area, family cases are generally first appointed pre-litigation mediation, and disputes over the change of dependency relationship will also enter the mediation process first. If an enforceable plan can be formed at this stage on the child's care arrangement and visiting mode, it is often more conducive to reducing the disturbance to the child than the judgment. Judging from the general practice reflected in the public judgment of the Ningbo court, the court's attitude towards the dependency relationship tends to be stable. Unless there are obvious disadvantages in the existing arrangements, it is generally not easy to change the living environment to which the children have adapted.

6. operational steps

the first step is to collect evidence that the other party is not suitable for continuing to raise, such as school feedback, medical records, alarm records, chat records, etc.; the second step is to prepare materials that they have the ability to raise, including income, housing, working hours and assistance care arrangements; The third step, if the child has reached the age of eight, fully communicate with him and respect his true wishes; the fourth step, in the fifth step, the court may apply to the court of the defendant's domicile or the child's habitual residence to file a lawsuit for changing the dependency relationship; in the fifth step, the lawsuit may apply to the court for social investigation or entrust a professional institution to evaluate.

Finally, it should be noted that changes in dependency relationships can usually be made together with adjustments to maintenance and visitation arrangements. If there is only a dispute over the details of visiting time, education and medical expenditure sharing, it is not necessary to go through the change procedure, and adjustment can be made through mediation or separate prosecution to reduce the disturbance to the child's life.

Practical Experience of 7. Lawyers

the agreement says that the child is directly raised by the other party, which does not mean that it is fixed. The other party may sue for change as long as legal circumstances arise later. But there is a premise to see clearly: the starting point of the court's review is whether the change is more conducive to the growth of children, not who is more wronged between parents and who wants children more. Therefore, "I am in good condition now", "the other party has remarried" and "the child said he wants to talk to me" are usually not enough to promote change. Such reasons sound sufficient and the evidence is often very thin.

What needs to be done is to make it clear with facts that "the other party is not suitable to continue to raise" or "change is obviously more beneficial. Organize materials around whether care is in place, whether the living environment is stable, the children's true wishes and adaptation, and pay attention to the traces of daily care, school and medical records, living conditions, etc. If the child is older, his true will will be more valued, so that the child's ideas can be presented naturally, and do not deliberately guide him. If necessary, it can also be strengthened by means of family investigation and social investigation to make the facts more complete.

In change cases, negotiation is often more convenient and protective of children than litigation. You can try to communicate with your former spouse first, and talk about visiting arrangements and alimony together. If we can't talk about it, we will sue again. At this time, the communication record in the early stage has become part of the facts. I would also like to remind you that you should not use change as a tool to turn over old scores or vent your anger. The court is focusing on the interests of the child. Only by preparing for this point can you get closer to the result you want and not let the child get hurt again in the seesaw., The child's feelings should also be taken into account.