Insights

What evidence does Ningbo need to change the custody of children

Ningbo Author：LuXu WANG

When Xiao Li got divorced, custody of their child was awarded to the ex-wife. However, after the ex-wife remarried and had another child, she began to neglect the original child, leading to a decline in the child’s academic performance and a low mood. Xiao Li wants to apply for a change in child custody but doesn’t know where to start or what documents to prepare. The conclusion begins with the following: to change the custody of a child, it must be proved that the person directly raising the child is legally unsuitable to continue raising, or that the child living with the other party is more conducive to its healthy growth; Common legal situations include the other party's inability to raise due to serious illness or disability, failure to raise obligations or abuse, and the willingness of children over eight years of age to live with the other party. Evidence should be prepared along three main lines: “the other party is unfit to raise the child,” “I am capable of raising the child,” and “the child’s genuine wishes.” Among these, evidence regarding the child’s wishes (for children aged eight or older) and the other party’s parenting circumstances are the most critical.

1. Legal basis: Four statutory circumstances for changing custody rights

Article 56 of the "Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Chapter of the Civil Code of the People's Republic of China" stipulates that if any of the following circumstances exist, the people's court shall support a parent's request to change the child custody arrangement:

  1. The party living with the children is unable to continue raising them due to a serious illness or disability;
  2. The party living with the children fails to fulfill their duty of care or engages in abusive behavior toward the children, or their cohabitation with the children has a demonstrably adverse effect on the children’s physical and mental health;
  3. A child who has reached the age of eight expresses a wish to live with the other parent, and that parent is capable of providing care;
  4. There are other legitimate reasons requiring a change.

Requirement breakdown: Changing custody is not something that can be done on a whim; the court’s fundamental standard for review is “maximizing the best interests of the child”—it must assess both whether there is a legitimate reason for the change and whether the child’s post‑change living environment will genuinely be more conducive to their development. Frequent changes to the custody arrangement are detrimental to a child’s stable development; therefore, courts adopt a cautious approach to requests for modification and require the party seeking the change to bear the burden of proof.

2. Three lines of evidence: what does each focus on?

First point: Prove that the other party is no longer suitable to continue serving as the primary caregiver. corresponds to Article 56, paragraphs 1 and 2; common types of evidence include:

  1. The other party suffers from a serious illness or disability: Provide a diagnostic certificate, medical records, hospitalization records, and a disability assessment report; where necessary, apply for a forensic examination to determine whether the party is “unable to continue providing support.”
  2. Failure to fulfill parental support obligations: long-term failure to pick up or drop off the child, failure to pay child support (with no transfer records available), and witness testimonies and daily life records indicating that the child has been cared for by grandparents or other caregivers for an extended period;
  3. Abuse or actual adverse effects on physical or mental health: police reports, records of inquiries conducted by public security authorities, reports from schools or community organizations, testimony from neighbors, photographs of the child’s injuries, and medical records.
  4. Environmental factors detrimental to a child’s development: evidence of the other party’s harmful habits such as alcohol abuse, drug use, or gambling; records of domestic violence; frequent relocations or unstable housing.

Second point: Demonstrate that you are capable and better suited to serve as the primary caregiver. Corresponding to the third item of Article 56 "the party has the ability to support" and other justifiable reasons, the common evidence includes:

  1. Stable income: labor contract, salary flow, tax payment certificate, business income certificate;
  2. Stable residence and education conditions: property ownership certificate or long-term lease contract, school district situation and photos of living environment;
  3. Time and Energy: Work schedule details, arrangements for family members to assist with caregiving, and daily records of picking up and dropping off children;
  4. Emotional Foundation: Photos and videos of time spent with the child, communication records, and records of participation in school activities.

The third line: fix the true will of children (over eight years old).The child’s wishes are one of the direct grounds for modifying custody, but they must be documented in a legally valid manner.

  1. Written statements or video statements from the child; ensure the setting is natural and free from any inducement.
  2. Apply to the court to ask the opinions of the children in the trial -- the court will make a separate inquiry in combination with the children's age and expressed wishes, and this record has the strongest probative force;
  3. In Ningbo, you may apply to the court to appoint a family affairs investigator to conduct on-site visits to ascertain the children’s true wishes and prepare an investigation report (see the Ningbo Practice Guidelines for details).

The three lines each have distinct roles: the first line determines whether the change is justified; the second line assesses whether the child will have a better environment after the change; and the third line considers the child’s own expressed wishes. Courts typically conduct a balancing of interests by considering three factors; relying on any single factor alone usually makes it difficult to prevail in litigation.

The "daily accumulation" of evidence is often more effective than the surprise after the event: who will transport the child to and from school, attend parent-teacher meetings, accompany him to see a doctor, and help with homework. The facts of daily care can be presented through the transportation records, home-school communication group messages, medical registration records, daily friends circle, etc. The emotional connection between the child and which party is closer can be reflected through call records, videos and photos; teachers, neighbors and staff of trustees are the most direct witnesses to the neglect of the other party-what they usually see is much more objective than the unilateral statement in court. If the child has obvious emotional or academic problems (grades continue to decline, weariness, insomnia), medical treatment and psychological consultation records are not only evidence of "adverse effects", but also indicate the urgency of change, which can be submitted together.

3. Key operational points for evidence collection

  1. Priority of Written Evidence: Diagnostic certificates, medical records, police reports, transcripts, bank transfer records, and other written evidence carry significant probative force and should be treated as the core components of the evidentiary record.
  2. Keep the original carrier of electronic evidence: WeChat chat records, transfer records, photos and videos and other electronic evidence, be sure to keep the original carrier such as mobile phones, not just screenshots; important content can be notarized and fixed or demonstrated in court. According to the White Paper on Family Trial of Ningbo Yinzhou Court, there are many defects in electronic evidence and it is difficult to accept. This hint is also applicable to cases of changing custody.
  3. Combination of oral and written testimony: When witnesses such as teachers, neighbors, or relatives testify in court regarding the child’s upbringing, their testimony carries greater evidentiary weight than unilateral written materials; if a witness is unable to appear in court, they should, where possible, submit a written statement and explain the reason.
  4. Timeline consolidation: Link the timeline events—“the other party’s neglect → the child’s declining academic performance/abnormal emotional state”—using report cards, medical records, and chat logs to form a complete causal chain.

4. Litigation Procedures and Jurisdiction

The change of custody right belongs to the lawsuit of change, which is under the jurisdiction of the basic people's court of the domicile or habitual residence of the defendant (the party directly raising the children); if the two parties agree to change the custody relationship and it is beneficial to the children, they can also sign the change agreement by themselves without litigation. Key points of the program:

  1. When filing a lawsuit, submit the complaint, proof of identity, children’s birth certificates or the divorce judgment (or mediation statement), and evidence of the current custody arrangement.
  2. Within the evidence‑submission period, submit a list of evidence together with the original documents; if you wish to request the appearance of witnesses, a court investigation, or a forensic examination, submit the corresponding written applications as well.
  3. Where matters involve inquiries regarding children or on-site investigations, an application may be made to the court to have the Family Adjudication Division arrange such proceedings; where necessary, an application may also be made for the involvement of a family investigator.
  4. If there is a significant change in the child’s living situation during the litigation (e.g., the other party refuses to cooperate, or the child explicitly refuses to live with them), promptly submit additional evidence and request the court’s attention.

During the pendency of an action for modification, the original custody arrangement shall remain in effect; where it is indeed necessary to prevent the other party from transferring or concealing the child, or from engaging in conduct detrimental to the child, a party may apply for an injunction or request the court to issue a preliminary order establishing a temporary custody arrangement pending judgment, to be determined on a case-by-case basis.

After the successful change, there are still a series of "supporting actions" to keep up with: household registration transfer-apply to the public security organ to move the children's household registration to their own household with the effective judgment or mediation document; School status and school change-communicate with the school transfer and handle the school status change, which involves the attention to the school district policy of cross-district schooling; maintenance connection-after the change, the original maintenance payment obligation is terminated, and the other party pays to you according to the new standard, the amount and payment method should be specified in the judgment or agreement; visitation arrangement-after the change of direct custody, the visitation right of the original dependant is still protected, and both parties negotiate in advance on the time and place of visitation to avoid going to court again for visitation disputes. Once these matters are handled smoothly, the child will be able to complete the transition in a stable environment.

The trial and the presentation of evidence also determine the success or failure: the submitted evidence should be organized according to "grouping + number + purpose of proof", and the evidence should be grouped around the above three lines (the other party is not suitable for raising/self-raising ability/children's willingness), and each group of evidence should indicate the purpose of proof; the key electronic evidence should be demonstrated in court or notarized documents should be submitted, and the witness should apply in advance and the outline of inquiry should be prepared. When challenging the opposing party’s evidence, focus on verifying three key points: whether the source of the evidence is lawful (evidence obtained through surreptitious recording or photography may be excluded); whether the time of its creation is genuine (whether it has been backdated or re‑photographed); and whether the content it proves is relevant to the facts at issue (a family photograph cannot prove “continuous cohabitation”). In terms of willingness to mediate, cases involving changes to child custody tend to have high mediation rates in Ningbo. It may be advisable to reach a comprehensive agreement—covering custody, child support, visitation, and holiday arrangements—under the auspices of the court. Such a mediation agreement carries the same enforceable force as a judgment, involves less adversarial confrontation during enforcement, and causes less emotional harm to the child.

5. Common misconceptions

Misconception 1: You can change it whenever you want. Correct answer: There must be a legal or legitimate reason. The court conducts a prudent review based on the principle of maximizing the best interests of the child; requests for modification without justifiable grounds will be dismissed, and frequent litigation may also adversely affect the judge’s perception of the party making the claim.

Misunderstanding 2: If the other party remarries and has children, it can be changed.Correct answer: Remarriage in itself is not a statutory ground for modifying child custody. What is to be proved is the deterioration of the actual upbringing of the child after remarriage (neglect, adverse effects), not the fact of "remarriage.

Myth 3: As long as children are willing to follow themselves, they can change. Positive explanation: The willingness of children over the age of eight is an important factor, but it is also necessary to have the ability to raise children, and the change is indeed conducive to the growth of children; the willingness of children should be true and voluntary expression, and the expression made under induction or coercion may not be accepted.

Myth 4: It’s enough to just verbally tell the other party that they don’t have to take care of the child.Correct answer: Claims must be supported by evidence. Long-term reliance on others for care, arrears in child support payments, and a decline in the child’s academic performance all require written or electronic evidence; mere verbal assertions are unlikely to be upheld by the court.

6. FAQ

The child is only six years old. Do you still need to ask the child's willingness to change custody?

The wishes of children under the age of eight are not a legally required factor for consideration; however, courts will still, on a case-by-case basis, take into account the child’s level of cognitive development. The evidentiary weight of a six-year-old’s expressed wishes is limited; the primary focus should be on demonstrating that the other party is unfit to care for the child and that the parent seeking custody is better positioned to promote the child’s healthy development.

If the other party fails to pay child support, can this be grounds for modifying custody?

Mere arrears in child support are typically resolved through a lawsuit to recover the support payments and do not necessarily result in a change of custody; however, if the non-payment persists over a prolonged period and the parent completely neglects the child, thereby constituting a failure to fulfill parental obligations, this may be asserted as an additional ground for seeking a modification of custody.

How long does it take to change custody litigation? Who will the child live with during this period?

The first trial is limited to three to six months in general, and those involving identification and investigation will be extended accordingly. During the litigation period, the original support arrangement shall continue to be implemented; if there is an emergency situation that is not conducive to the children, the court may be applied to deal with the temporary support arrangement in accordance with the law, but sufficient evidence is required.

What should I do if, after the modification is approved, the other party refuses to hand over the child or transfer the household registration?

can apply to the court for compulsory execution based on the effective judgment or mediation statement: if the transfer of children is involved, the court will give priority to persuasion and education, and those who refuse to cooperate and the circumstances are serious can take compulsory measures such as fines and detention according to law and assist in the transfer of household registration; if the payment of alimony is involved, they can apply to deduct the other party's salary and deposit, and those who refuse to be included in the list of dishonesty. During enforcement, restraint should be exercised, with the best interests of the child prioritized, and efforts should be made to avoid involving the child in the conflict between the parties.

7. Practical Insights from a Lawyer

If you want to change the custody right, it is not enough to have the wish of "I want to take care of the child now". The key lies in two aspects: one is that the party who directly raises is not suitable to continue to raise, and the other is that the life of the child with you is obviously more conducive to the growth. Therefore, the starting point is not to write the complaint first, but to objectively evaluate whether the evidence at hand is sufficient to support these two articles. Many people start by loudly criticizing their ex‑spouse’s faults, but when they can’t produce any evidence to back up their claims, it comes across as mere venting, which only makes matters worse. The first lesson in such cases is to replace evaluative complaints with verifiable facts.

The evidence should be presented along three main lines: the other party’s unsuitability for custody, your own ability to provide care, and the child’s genuine wishes. The parenting status of the other party can be fixed from the aspects of incomplete care, neglect of discipline, residence and work and rest environment, and attention should be paid to keeping information such as time, place and people present. On the other hand, I have prepared records of income, housing, schooling arrangements and daily companionship. If the child is already eight years old, their wishes carry significant weight; however, care must be taken in how evidence is collected—avoid leading questions or making the child feel as though they are being asked to “choose a side,” as this could cast doubt on the sincerity of their expressed preference.

From the perspective of operation rhythm, instead of sudden prosecution, it is better to have a period of stable care facts: transportation, medical treatment, counseling and living together. These daily traces themselves are the most convincing materials. At the same time, anticipate the other party’s countermeasures—such as suddenly improving caregiving performance or emphasizing that you’re too busy with work to provide care—and clearly outline your work and caregiving arrangements in advance. In negotiation, child rearing often affects the emotions of both parties. If visiting arrangements and alimony adjustments can be used in exchange for the loosening of the other party's custody rights, it is often faster than a hard sentence and less likely to cause secondary harm to the child.

The essence of changing the custody of children is to use evidence to persuade the court that "the change is more beneficial to the children".The preparation of evidence is carried out in three lines: the first line fixes the fact that the other party is not suitable for upbringing (disease and disability, non-performance of obligations, abuse or adverse effects), the second line proves one's ability to support and environmental advantages, and the third line fixes the true wishes of children over the age of eight by legal means; It is supplemented by written and electronic evidence with complete time line. Don't sue on the basis of subjective feelings or a single screenshot-the chain of evidence is complete and the cause and effect are clear, and the change request has a chance of winning. The maximization of children's interests is always the starting point of the court decision.