Is it possible for the man of a child under the age of two in Ningbo to win custody?

Zhang’s child has just turned one year old, and his wife has filed for divorce while also claiming custody of the child. Mr. Zhang believes that his financial situation is better and that his wife is frequently away on business trips, making it difficult for her to care for their child, so he wants to know whether he can obtain custody. Conclusion first: in principle, children under two years of age are directly raised by the mother, but if the mother has a legal situation that is not suitable for raising, the father can fight for custody; the father needs to prove that raising by himself is more conducive to the healthy growth of the children, and "better economic conditions" itself is not enough to change the legal principle.

1. Legal Basis and Element Breakdown

Article 1,084, paragraph 3 of the Civil Code provides: “After divorce, children under the age of two shall, as a general rule, be raised directly by the mother.” Where the parents cannot reach an agreement on the issue of custody for a child who has already reached the age of two, the people’s court shall make a judgment based on the specific circumstances of both parties, in accordance with the principle of acting in the best interests of the minor child. If the child has reached the age of eight, their true wishes shall be respected. "This paragraph establishes the rules of age-based support: the principle of direct support by the mother under the age of two; The age of two to eight is judged on a case-by-case basis according to the principle of most favorable to minor children. Respect the wishes of children over the age of eight.

“Principle” implies that there are exceptions. Article 44 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code further clarifies: If the mother has one of the following circumstances and the father requests direct support, the people's court shall support it: First, suffering from long-term infectious diseases or other serious diseases, it is not suitable for the children to live with them; second, the conditions for support do not fulfill the obligation to support, and the father requires the children to live with them; third, for other reasons, it is not appropriate for children to live with their mothers. Article 45 also permits parents to agree that the father shall have direct custody of children under two years of age, provided that such agreement does not adversely affect the child’s healthy development; in such cases, the court shall uphold the agreement. Elements for a father’s successful lawsuit: (1) the existence of a statutory exception; (2) the father’s ability to provide support and meet the caregiving requirements; and (3) that custody by the father is in the best interests of the child—none of these three conditions can be omitted.

2. Subdivision of circumstances: when the mother is not suitable for custody and the agreement route

Split according to the mother's situation: first, if the mother suffers from long-lasting infectious diseases (such as active tuberculosis, etc.) or serious mental illness, and cannot take care of the baby, the father can fight for it; second, if the mother is on a business trip for a long time, goes out frequently or explicitly refuses to take care of the baby, and the father needs to provide evidence-only because of the general unfavorable factors such as busy work and low income, not enough to change the principle; third, the mother has serious situations such as abuse, abandonment, drug abuse, etc., and the child is really not suitable to live with the mother, and the father should collect corresponding evidence; fourth, if the mother voluntarily gives up or the two parties agree to be raised by the father, and there is no adverse effect on the child, it is recommended to fix it in writing and state the reason; fifth, if the child is breast-fed, unless the mother is clearly not suitable, the father claims more difficult.

It is also necessary to pay attention to the connection with Article 14 of the Interpretation (II) on Marriage and Family of the Civil Code: in divorce proceedings, both parents require to directly raise their children who have reached the age of two. If one party has the situation of domestic violence, gambling and drug abuse, bigamy or cohabitation with others, robbing and hiding minor children, etc., the court should give priority to the direct support of the other party. Although the rule applies to children over two years old, the judicial orientation that “the party who abducts or conceals the child will be at a disadvantage” also carriesWarning significance for cases involving children under two—attempting to create a fait accompli by taking the child may, in fact, become anDisadvantageous factor.

3. Case Perspective: Evidence Presented by the Father and the Court's Considerations

(Example, fictional) When Mr. He divorced his wife, their child was nine months old. The wife is a nurse at a Grade III hospital and works mostly night shifts; after the child was born, Mr. He and his parents took care of the child for most of the time. The wife has filed for divorce and is seeking custody of the child. In the litigation, Mr. He submitted his wife’s work schedule and business travel records, daily photographs of the children being cared for by their grandparents along with their medical records, and proof of ownership of their home as well as documentation confirming the hiring of a nanny. The court held that although the child was under two years of age, the wife did not have the ability to take care of the child for a long time. Based on the principle of "most beneficial to minor children" and the actual care status quo, the court ruled that the child should be directly raised by Mr. He, and the wife should have the right to visit and pay alimony. This simulation illustrates that custody of children under two years old is not automatically awarded to the mother; with a combination of evidence showing “the mother is unable to fulfill her caregiving duties over the long term” and “the father’s own conditions for raising the child are superior,” the father can very well prevail.

Real-world adjudication also reflects this logic. According to the Ningbo court's public divorce judgment, in the divorce dispute between Chang and Meng, the legitimate children were directly raised by the plaintiff and the defendant paid 1000 yuan a month in alimony. In the divorce dispute between Li mou and Zhu mou, the legitimate daughter was raised by the plaintiff, and the defendant paid 1000 yuan to 18 yuan a month from the next month after serving her sentence-Ningbo court paid attention to the actual care conditions and the interests of the children in the child support arrangement. According to the introduction of the family trial mechanism of Ningbo Court, Yuyao Court has set up the province's first professional family trial collegial panel and implemented the family investigator system (promoted by the Supreme Law). Ninghai Court will issue 466 investigation reports from 2020 to 2022-the father can make good use of the family investigation procedure to objectively present the conditions for both sides' support.

4. Common misconceptions and correct answers

Myth 1: The father will never be granted custody of a child under two years old.Correct answer: In principle, children under two years of age are to be directly raised by the mother; however, if the mother falls under any statutory circumstances rendering her unfit to raise the child, or if both parents reach a mutual agreement, the father may certainly obtain custody—what matters most is the evidence.

Misconception 2: Good financial circumstances can override one’s principles.Correct answer: In cases involving children under two years of age, greater emphasis is placed on whether the mother can effectively fulfill her caregiving responsibilities and serve the best interests of the child. A significant income disparity, even if present, is generally insufficient to override this principle when the mother is capable of providing care.

Misconception 3: If I just get custody of the child first, the court will rule in my favor. Positive explanation: robbing and hiding children violates Article 24 of the Law on the Protection of Minors (it is not allowed to compete for custody by robbing or hiding minor children). According to Article 12 of Interpretation II, the other party can also apply for a personal safety protection order or a ban on infringement of personality rights. Robbing may also become an unfavorable consideration for the ownership of custody.

Misconception 4: If the agreement stipulates that the father is responsible for support, no further justification is required.Correct answer: Explanation 1—Article 45 requires that the agreement “have no adverse impact on the healthy growth of the children”; the court will still review the actual conditions of child rearing, so it is more prudent to formalize the agreement in writing and provide a detailed rationale.

5. List of Evidence Materials and Operating Steps

The father should prepare: ① the evidence of the situation that the mother is not suitable for raising-the disease diagnosis certificate, the medical record, the long-term business trip/shift arrangement record, the chat record of failing to raise the obligation, the witness testimonies and photos of maltreating or not taking care of the children; ② the proof of self-raising ability-the income flow, the tax payment record, the real estate certificate, the photos of the housing condition, the care arrangement (grandparent assistance, the nursery);③ Evidence of children's actual living conditions-birth certificates, vaccination records, medical records, daily care photos, and proof of parent-child living together; ④ Evidence of the other party's legal fault (domestic violence alarm records, warning letters, judgment documents, etc.). In practice: Before filing a lawsuit, secure and preserve evidence; during the divorce proceedings, simultaneously assert the right to custody; apply to the court to appoint a family affairs investigator to assess the actual caregiving conditions of both parties; at trial, focus the argument on what is in the “best interests of the minor child”; if custody is not granted, clearly specify the visitation arrangements and frequency in the judgment, thereby preserving a basis for future modification of the custody arrangement.

6. Modification and visitation rights after not being granted custody

Custody awarded to the mother for children under two years old does not mean the father is “permanently excluded.” The support relationship can be changed under three circumstances: first, the two parties agree to change, as long as it is conducive to the growth of the children and does not harm the interests of the children, the change agreement can be signed and implemented; Second, the direct support party has a situation that it is not suitable to continue to support-suffering from serious illness or disability, unable to continue to support, not fulfilling the support obligations or maltreating the children, and the other party sues for the change of the change of the relationship, the court should support it; third, if the child has reached the age of eight, and I am willing to live with the other party and that party has the ability to support it, the court will respect the wishes of the child to make a change. If the father loses the lawsuit at present, what he should do is to arrange the visit realistically, pay the alimony on time, and continue to participate in the growth of his children. These are not only obligations, but also evidence of "I have the ability and willingness to support" when advocating changes in the future.

The realization of visitation rights also needs to be detailed: the judgment or agreement should specify the specific time of visitation (which day of the week or month, what time to what time), the way (pick-up, video, going out together), holidays and summer and winter vacations, so as to avoid the difficulty of implementation caused by the vague expression of "visitation at any time. If the custodial parent unreasonably obstructs visitation, the other parent may apply for enforcement. Enforcement in visitation cases shall primarily rely on persuasion and education, with coercive measures employed as a supplement. The court may impose fines or detention on the obstructing party, and in serious cases, may modify the custody arrangement. If the visit is detrimental to the physical and mental health of the child (e. g. the visiting party is prone to violence, alcoholism, etc.), the immediate dependents may request the suspension of the visit (article 1086, paragraph 3, of the Civil Code), and the visit shall be resumed after the reason for the suspension has disappeared. In short, the ultimate goal of a custody dispute is not simply “who gets custody,” but whether the child can grow up stably between two families—by establishing clear rules and ensuring both parents adhere to them, the harm to the child will be minimized.

Finally, I would like to give a piece of advice to both parties: for the direct dependents, obstructing the visit and refusing to communicate will only accumulate the ammunition for the other party to change the relationship in the future; for the visiting party, paying alimony on time, punctual visits and not interfering with the children's life are the basis for maintaining a good parent-child relationship. In cases involving obstacles to visitation due to long-distance separation or out-of-town schooling, the agreement or court judgment may stipulate mechanisms for video-based visitation and compensatory visitation during holidays, with clearly defined rules. This approach is far more cost-effective than resolving disputes after they arise.

7. Frequently Asked Questions

What is the legal basis for a court to award custody of a child under two years old to the father?

Article 1084 of the Civil Code establishes the principle of "direct support by the mother", but Article 44 of Interpretation 1 lists three types of situations in which the mother is not suitable for support. If one of them is satisfied and the father's request is met, the court shall support it. In addition, parents can be directly raised by the father according to the agreement of Article 45. Awarding custody to the father does not constitute a departure from the principle; rather, it is a statutory exception to that principle.

Can the mother’s low income and lack of housing be grounds for the father to seek custody?

Generally not. Under the age of two, more attention is paid to whether the mother can perform her duty of care. Income and housing are secondary factors. The mother can rely on the assistance of her parents and rent a house to meet the conditions. Only when the mother is legally unsuitable for support, will the economic conditions be comprehensively considered.

During a divorce, the child is awarded to the mother—can the father still seek a change in custody later?

Yes. According to Article 1084 of the Civil Code and relevant judicial interpretations, if the mother suffers from a serious illness and is unable to support her, fails to fulfill her obligation to support her, maltreats her children or her children are obviously detrimental to her growth with her life, the father may sue separately to request a change in the support relationship. If the mother agrees to the change, it can also be changed by agreement.

If the father has strong financial means, can he directly use this as grounds to seek custody of a child under two years old?

No. Under the age of two, the principle of direct support by the mother is taken as the principle (Article 1084 of the Civil Code), and economic conditions are only one of the factors to be considered comprehensively. Unless the mother has an inappropriate situation to explain Article 44, or the two parties agree to be raised by the father without adverse effects, it is difficult to change the principle only by income advantage. Economic circumstances play a more significant role in determining the amount of child support and in adjudicating custody of children over two years of age.

During the litigation, the child has been in the father’s care. Will the court take into account the current custody arrangement?

will consider comprehensively, but the fait accompli formed by robbing children will not get support automatically -- explain 2 Article 14 even lists robbing and hiding children as unfavorable factors for the ownership of raising; if the child is taken care of by father or caused by mother's consent or objective reasons (mother's illness, hospitalization, business trip, etc.), it can be used as evidence of favorable facts, and it is suggested to keep daily care records, pick-up records and transport records and evidence approved by the other parties, and cooperate with family investigations.

8. Practical Insights from a Lawyer

Children under the age of two are, in principle, to be directly raised by the mother; this serves as the starting point in resolving child custody disputes. However, this is not an absolute rule: if the mother falls under statutory circumstances rendering her unfit to raise the child, the father may seek custody. The term “unsuitable” typically refers to situations where the individual is unable to provide care over the long term, suffers from a condition that is detrimental to the child’s upbringing, exhibits serious misconduct, or objectively fails to fulfill their caregiving obligations. Therefore, the man cannot simply turn the tables by saying, “I’m in a better position”; he must demonstrate, with concrete evidence, that having the child raised by the mother would indeed be detrimental to the child.

The direction of evidence presentation can be divided into two levels. On the first floor, the mother is not suitable for long-term business trips, actual non-participation in care, diseases or behaviors that affect upbringing; On the other floor, one is more stable: income and working hours, living conditions, who helps to take care of the children, who undertakes the daily transportation and medical treatment of the children, and specific planning for education. In cases of this nature, the child’s actual living situation carries the most weight; whoever can prove who is primarily responsible for the child’s day-to-day care and supervision will have the stronger position. In terms of evidence, transportation logs, messages from the parents’ group chat, and medical visit and payment receipts are all more convincing than mere verbal statements.

Strategically, the focus should be on “the child’s actual daily routine” rather than simply attacking the other party. Excessive smear is not only not necessarily effective, but may make judges feel that they are fighting for revenge, and the loss outweighs the gain. During negotiations, you can take a step back and focus on working out specific arrangements for visitation and co‑parenting, using a practical, enforceable plan to secure concessions from the other party regarding child support or property. Even if you don’t succeed this time, you should still keep the door open for future changes to child custody: records of daily caregiving, proof of expenses, and documentation of the child’s adjustment are all solid grounds for making your case down the line..

The dispute over the custody of children under two years old is essentially a dispute over the evidence of "principle" and "exception": the mother should hold the two lines of "direct support as the principle + actual care ability", while the father should use the evidence of "legal exception + superior support conditions" to open the gap. Both sides should remember: children are not chips, snatching, hiding will only backfire. For Ningbo families, the family investigator system provides a channel for objective presentation of support conditions. The father should actively cooperate with the investigation, truthfully declare, and clearly explain the care plan (who will take it, how to take it, and how to arrange medical treatment to school). Even if custody is not granted, the mode and frequency of visits should be fixed in the judgment to reserve the basis for future changes.