Insights

Whether the opinions of children over 8 years old in Ningbo can completely determine the ownership of custody

Ningbo Author：LuXu WANG

Can the opinion of a child over the age of 8 completely determine the ownership of custody? Conclusion: No. The law stipulates that "children who have reached the age of eight should respect their true wishes"-respect does not mean that they are accepted in full. The child's will is the most important reference in the court's decision, but in the end, the court must still make a comprehensive judgment in accordance with the principle that is most beneficial to the minor children, combined with the parenting conditions, accompanying time, educational environment and other comprehensive judgments of both parents; in individual cases, although the child clearly expresses his desire to be with one party, the court may still make different arrangements. This paper makes clear the boundary and practical operation of "respecting will.

1. legal basis: a principle plus a pointer

the third paragraph of Article 1084 of the Civil Code stipulates: "After divorce, children under the age of two shall be directly raised by the mother. If the parents fail to reach an agreement on the upbringing of a child who has reached the age of two, the people's court shall, in the light of the specific circumstances of both parties, make a judgment in accordance with the principle of being most beneficial to the minor child. If a child has reached the age of eight, his true will shall be respected. "

to disassemble this paragraph, the upbringing of children over the age of eight contains two layers of rules: the first is the general principle-"most beneficial to minor children"; The second level is the procedural guideline-"respect their true wishes". The two are not two parallel standards, but a master-slave relationship: respecting the will is a way to implement the most favorable principle, and when the child's will is consistent with the most favorable principle, the court adopts the will; When the two conflict-for example, the child is induced by one party or the expressed will is obviously not conducive to his healthy growth-the court still takes the most favorable to the child as the final judgment standard.

Why can't 2. let the child have the final word"

the span of eight to 18 years old is very large. The cognitive and judgment ability of eight-year-old children is still developing, and their willingness is easily affected by the living environment, emotion and inducement of one party, which may not reflect the real interests. The court needs to examine the "authenticity" and "stability" of the will: whether it is the child's autonomous expression, whether it has been instigated or threatened, and whether the expression is consistent. For example, if the child says that he has a better relationship with his mother, but the man has been undertaking counseling and education for a long time, which can ensure the consistency, regularity and stability of education, and the woman has no fixed residence and the conditions for raising them are obviously insufficient, the court may decide that the man should directly raise her-this is the sample of handling when there is a difference between "respect for wishes" and "the most favorable principle.

In addition, there is a layer of institutional considerations: custody disputes are often accompanied by parental conflicts. If children are mistaken for "deciding who their parents win", they will drag the children into the adult war and cause secondary psychological damage. The law sets an age threshold of eight years, a balance between "listening to the child" and "protecting the child from conflict"-the will is listened to, but it is up to the courts to decide how to accept it after professional review.

How the 3. Court Hears and Examine the Will

in practice, the way to listen to the opinions of children over the age of eight is far more detailed than "asking a question in court:

  1. separate inquiry: the judge will ask the child separately in the family trial place to avoid pressure from the presence of parents. The inquiry focuses on daily life, getting along with parents and real thoughts;
  2. family investigators intervene: the investigators visit families and schools to understand the children's learning and living conditions and their relationship with their parents, and issue investigation reports for the court to judge the authenticity of their wishes and the conditions of their upbringing;
  3. psychological counseling and evaluation: when necessary, psychological counselors intervene to evaluate the reasons behind the child's psychological state and willingness;
  4. consideration of age and expression ability: the weight of willingness of children who have just reached the age of eight and those who are close to adulthood will vary from case to case.

The focus of the court's review includes: whether the child clearly expresses (rather than retelling what the adult teaches), whether the will is stable (whether the multiple expressions are consistent), and whether there are signs of induced coercion. If one party is found to have the act of robbing, hiding or abetting the child to express his or her position, according to Articles 12 and 14 of the (II) on the Interpretation of Marriage and Family Editing, which will be implemented in 2025, this act will instead become a major unfavorable factor in its struggle for custody.

How do 4. parents correctly "present" their children's wishes?

  1. Don't induce or force: repeatedly "teach children to speak", coerce and induce children to declare their positions. Once the court has found out, not only will the will not be accepted, but also may damage their own integrity evaluation;
  2. keep real interactive records: photos, videos, chat records and letter diaries of children getting along with themselves can objectively reflect the parent-child relationship and children's emotional tendency;
  3. with the help of third-party testimony: the observation records of teachers, neighbors, relatives and friends on children's daily expression are more convincing than parents' unilateral statements;
  4. application for separate inquiry or family investigation: those who have reached the age of eight may apply to the court for hearing opinions in a way that is least harmful to their children, and if necessary, apply for the intervention of a family investigator.

The Application of 5. Eight-year-old Willingness in Changing the Relationship of Dependency

if the situation changes after the divorce, a separate lawsuit for changing the dependency relationship may also be filed. According to Article 56 of the (I) of Interpretation of Marriage and Family, if a child who has reached the age of eight is willing to live with the other party and that party has the ability to support the change, it is one of the situations in which the court should support the change-at this time, the child's will is more important, which is almost the direct basis for initiating the change. However, it is also not an "automatic change": the court will still examine whether the party's ability to raise and change is beneficial to the child, and the child's momentary gambling statement cannot replace a comprehensive judgment.

6. snatching, hiding and abetting: the red line of behavior that hurts the child's will.

In practice, the most harmful to the authenticity of children's wishes and the most harmful to children themselves are the two types of behaviors of parents in the custody struggle:

  1. snatching and hiding children: before and after the divorce, one party hides the child and blocks contact with the other party, trying to create the fait accompli that "the child is only with me. Article 12 of the (II) on the Interpretation of Marriage and Family, which came into force in 2025, makes it clear that if one parent or his close relatives snatch or hide minor children, the other parent may apply for a personal safety protection order or a ban on infringement of personality rights. Article 13 further stipulates the responsibility of snatching and hiding during separation; article 14 lists "robbing and hiding minor children" as one of the situations in which priority should be given to the direct support of the other party in divorce proceedings-trying to win custody by "robbing children" will only be counterproductive.
  2. Instigate and induce the child to declare his position: repeatedly instil "must follow father/mother" into the child, and let the child "stand in line" with material inducements and emotional kidnapping. Once the court has found out, the authenticity of the child's expression is doubtful as a whole, which weakens the acceptance of his will and causes continuous psychological harm to the child. When the court hears the will, it will specifically examine whether the expression is natural and whether it is like "memorizing lines".

The correct posture is to see the child's wishes as information that needs to be respected and protected, rather than as evidence that needs to be "manufactured. The long-term, stable and sincere company of one party is the truest answer in the child's heart, and it can most withstand court review.

7. Multiple Arrangements for Families with Many Children and Children Over Eight Years of Age

when more than two children are involved and some of them are over eight years old, the arrangement is more complex: the wishes of children over eight years old are listened to and measured separately; When the opinions of the children conflict (one is willing to follow the father and the other is willing to follow the mother), the court determines after synthesizing the parenting conditions of both parties that the common "one person, one" is by no means inevitable-the two children live together for a long time and have close emotional connection, it may be awarded to one party and the other party to pay a higher maintenance fee. No matter what kind of plan, it needs to be demonstrated separately within the limit of "benefiting each child", and children cannot be used as chips in the parents' game to be evenly distributed. If the two parties can agree to take care of them in turn (Article 48 of the Interpretation (I)), the court will support them on the premise that it is beneficial to the interests of the children, which provides a more flexible way out for families with many children than "choosing one of the two.

8. FAQ

when an 8-year-old child says to his father, does the court have to award it to his father?

Not necessarily. The court respects his true will, but ultimately makes a comprehensive judgment based on the principle that is most beneficial to the minor children; the premise for the will to be accepted is true, stable, non-induced, and consistent with the child's best interests.

Children are taught by each other, what should we do?

Explain the situation to the court and submit the record of the child's daily true expression, the third party's observation testimony, apply for family investigation or psychological evaluation, and the court will review the authenticity of the will; Do not "grab your position" in the same way ".

Will the court let the child stand in court?

Generally, children will not be allowed to express their views in front of their parents in court, but will be asked by a judge alone or visited by family investigators to minimize the harm to children.

If an 8-year-old child wants to change his life, can he directly sue for changing his upbringing?

Can. If the person has reached the age of eight and is willing to live with the other party and the party has the ability to support the change, it is one of the circumstances that support the change, and the court may file a lawsuit to change the dependency relationship, and the court will make a comprehensive judgment in combination with the ability to support the child.

What will the court do if the child goes back on his word after expressing his wishes?

Based on the true and stable expression at the time of inquiry, the court will combine the expression before and after with the third party's observation and judgment. If it is found that the will is swayed by the recent influence of one party, the court pays more attention to the long-term living state and objective supporting conditions than to make a temporary statement at a certain moment.