Insights

Common Questions in Ningbo Regarding Child Custody Rights

Ningbo Author：LuXu WANG

When many divorced parents are fighting for the custody of their children, they are full of confusion about the judgment standard of the court, the preparation of evidence, the relationship between the maintenance fee and the custody: to whom is the child awarded? Does mom have to bring more? Can you get custody if you have money? Direct conclusion: the only main line of custody decision is "the most favorable to minor children"-the court applies the rules according to age stratification (under two years old, the principle of direct custody of the mother is taken as the principle; At the age of two, comprehensive discretion shall be based on the principle of being most favorable to children. Respect the true wishes of children when they reach the age of eight), focusing on who takes the main care, whose economic and companionship conditions are more stable, and whether changing living environment is unfavorable for children; the right of custody and the maintenance fee are two different things-obtaining the right of custody does not mean that the other party can be deprived of the right to visit, and not paying the maintenance fee does not necessarily mean losing the right to visit. The marriage and family interpretation (II) implemented on February 1, 2025 further clarifies: domestic violence, bad habits, cohabitation outside marriage, and snatching and hiding children will be at an obvious disadvantage in the custody struggle.

1. The three-step framework of court judgments

The first step is to look at the age, the second step is to look at the conditions, and the third step is to look at the details of willingness and facts:

  1. Under two years of age: The principle is that the child shall be raised directly by the mother (Article 1084, paragraph 3 of the Civil Code). If the mother has a long-term cure of infectious diseases and other circumstances that are not suitable for living together, has the conditions for raising but does not fulfill the obligation to raise, or has other circumstances that are really not suitable for living with the mother, the father may request direct support (Article 44 of the Interpretation (I)); If the two parties agree to live with the father and have no adverse effect on the child, the court shall support it (Article 45).
  2. The child has reached the age of two: if no agreement can be reached, the court shall make a judgment in accordance with the principle of acting in the best interests of the minor child. Priority situations include: sterilization or loss of fertility, obvious unfavorable environment for children with their longer life, no other children but the other party has other children, more favorable life with them and the other party suffers from serious diseases (article 46 of the explanatory (I)); Children living with grandparents for a long time and the elderly are willing to be able to continue to take care of them can be used as priority conditions (article 47); rotation of support may be agreed upon for comparable conditions (art. 48).
  3. has reached the age of eight: the true wishes of the children should be respected -- the court should listen to the opinions of the children alone and make a judgment in combination with other conditions. Note that “respecting the child’s wishes” does not mean simply complying with them mechanically; if a child’s expressed wishes are clearly influenced by one parent or conflict with the child’s best interests, the court will ultimately prioritize what is in the child’s best interests.

It is also crucial to explain the reverse list of Article 14 of the (II): if one party has committed domestic violence, abuse and abandonment, gambling and drug abuse, bigamy and cohabitation with others, or other serious violations of the duty of husband and wife loyalty, snatching and hiding minor children (the other party has no such serious circumstances), the court should give priority to the direct custody of the other party. As a result, fault and aggressive behavior have become “negative labels” in custody decisions.

Facts that the 2. Court focuses on

"most beneficial to children" in the case falls into six dimensions of review:

  1. Daily care facts: Who is responsible for the child’s meals, daily routine, school transportation, and medical appointments—this is the factor with the highest weighting.
  2. Emotional bond: With whom is the child closer—during the period of separation, who has been providing care and companionship, and who has been hindered from visiting?
  3. Economic and Living Conditions: Income stability, housing conditions, and school district resources, but these are considered only as part of “parenting capacity,” not the sole criterion.
  4. Assisting care resources: grandfathers' health status, willingness and ability to assist (explain (I) article 47);
  5. Conduct and lifestyle habits: presence or absence of adverse factors such as domestic violence, gambling, alcoholism, drug abuse, extramarital cohabitation, etc. (Explanation (II), Article 14);
  6. The child’s wishes (for children aged eight and above) and the continuity of their living environment: the extent to which transferring schools or moving impacts the child.

3. maintenance fee is decoupled from custody

alimony is another set of rules: the party who does not directly support the children should bear part or all of the alimony (Article 1085 of the Civil Code); the amount is determined according to the actual needs of the children, the affordability of parents and the local living standard, and those with fixed income are generally paid 20%-30% of the total monthly income, those who bear more than two children may be appropriately increased but generally not more than 50% (Article 49 of the (I)); The payment period is generally up to the age of

18for the children. Key points:

  1. Whether the maintenance payment is paid or not does not affect the visitation right-if the maintenance payment is not paid, the other party can not refuse to visit; if the maintenance payment is not paid, the other party can not refuse to pay the maintenance payment, and the two obligations are independent of each other;
  2. A divorce agreement stipulating that one party shall not bear child support obligations is binding on both parents, but the child may still request payment when necessary (Interpretation (II), Article 16) — the subject of the right to claim child support is, in essence, the child;
  3. The maintenance fee can be increased with the improvement of living standard and the increase of children's education and medical expenditure (the second paragraph of Article 1085 of the Civil Code).

4. Common Misunderstandings and Positive Solutions

  1. Myth 1: If you have money, you can get custody. Positive explanation: economic ability is only a component of "support ability", and the court pays more attention to daily care input and emotional connection; the father with high income but absent all the year round may not win over the mother who is fully accompanied.
  2. Myth 2: Children can go with whoever they want. Positive explanation: Only the wishes of children over the age of eight are "respected", and it is only an important reference rather than the only basis; the court will understand the attitude of children under the age of eight, but it will not play a decisive role.
  3. Misunderstanding 3: If you get custody, you can prevent the other party from watching the children. Positive explanation: the right of visitation is the legal right of the other party (Article 1086 of the Civil Code), and maliciously obstructing visitation will become an unfavorable circumstance in the dispute of changing the dependency relationship and alimony.
  4. Myth 4: Snatching children and hiding them can be "fait accompli".Correct answer: Explanation (II), Articles 12 to 14 clearly stipulate that one may apply for a personal safety protection order or an injunction against infringement of personality rights, and the party who seizes or conceals the child is instead presumed to be acting to their own disadvantage.

Enforcement and change practice after 5. custody judgment

Getting custody is only the first step, and implementation and change are the long-term lessons:

  1. the treatment of refusing to deliver the children: if the other party refuses to deliver the children after the judgment takes effect, it can apply for compulsory execution. The court's enforcement is mainly based on persuasion and education. It can take compulsory measures such as fines and detention for those who refuse to assist, but it will not mechanically forcibly "snatch back" the child-if the child has been hidden and the resistance is fierce, the enforcement is often In a deadlock, this is the reason why the (II) lists snatching and hiding as a disadvantage of custody rights and curbs "robbing children" from the source;
  2. Relief for obstruction of visitation right: If the other party obstructs the visitation, they can apply to enforce the visitation right, and the court can take compulsory measures against the obstructing party; if they obstruct the visitation maliciously for a long time, it constitutes the consideration factor of changing the relationship of support. In practice, it is more effective to write down the visiting plan in detail (time, place and handover method) so that the implementation can have a clear grasp;
  3. Conditions for modifying the child custody arrangement: If the primary custodial parent engages in domestic violence, abuse, abandonment, suffers from a serious illness, or has harmful habits, or clearly fails to fulfill their parental obligations, or if a child over the age of eight explicitly expresses a desire to live with the other parent and that parent is capable of providing proper care, a lawsuit may be filed to seek a modification. The central issue in reviewing a motion to modify is whether there has been a “material change of circumstances”; facts that were already considered at the time of divorce generally do not suffice to support such a modification.
  4. Increase and recourse of alimony: If the actual needs of the children increase significantly (education and medical expenses increase, price increase) or the original living standard decreases significantly due to the change of the affordability of the direct dependant, the children may request to increase the alimony (Article 1085, paragraph 2, of the Civil Code and Article 16 of the Interpretation (II)); If the other party defaults on alimony, sue for recourse in the name of the children and apply for enforcement according to the judgment.

Fixation and proof of 6. the wishes of eight-year-old children

how to present the real will of the children who have reached the age of eight, which is directly related to the direction of custody, there are four key points in operation:

  1. The court conducts a separate interview: The judge will hear the child’s views in a private setting, with parents not present and no prior “rehearsal” allowed. Court questioning typically focuses on everyday details—such as who prepares meals, who helps with homework, and who the child spends weekends with. Answers that have been rehearsed are prone to inconsistencies, thereby revealing artificiality.
  2. Auxiliary of written and recorded materials: The tendency (composition, diary, daily conversation recording) that children have naturally revealed to teachers, relatives and friends can be used as auxiliary materials, but it should be noted that the acquisition method is legal and the content is true. The "statement" induced and recorded afterwards is extremely weak and may be counterproductive;
  3. The balance between willingness and interest: when the child expresses his willingness to live with one party, but this party has domestic violence, bad habits or obvious disadvantages, or the child's statement is obviously influenced by one party, the court still takes the most beneficial to the child as the final standard -- willingness is an important reference, not a "final word";
  4. The handling of the change of the will: the child's will may change between the inquiry and the judgment, and the court generally takes the expression of the trial stage as the standard; after the judgment, if the child reaches the age of eight and continues to express clearly that he is willing to live with the other party, it can be an important cause of changing the custody relationship (comprehensive judgment combined with other conditions).

Advice to parents: Eight-year-old children have thoughts and memories. Before and after the trial, they derogate each other and force the children to express their opinions in front of the children, which hurts the children's trust in both parents and also makes the children's statements distorted. Respecting the children's true feelings and letting them speak their minds in court is not only responsible for the children, but also for themselves.

Temporary arrangements and risk prevention during 7. separation

There is usually a window of several months between separation and judgment, and the arrangement of this period directly affects the final result:

  1. Fixation of the facts of temporary support: during the separation period, the children actually live with whom and who will take care of them will become the evidence that "the children live with them for a long time" (explain the article 46 of the (I)) -- if you want the right of support to be biased towards you, you should take care of the children during this period of time and leave a mark;
  2. Advance payment of living expenses and maintenance expenses: if the other party does not bear the expenses of the child during the period of separation, the advance payment voucher shall be reserved, and the divorce can be shared together; the expenses in the name of the child shall be transferred as much as possible, and it is difficult to prove the cash expenses;
  3. Avoid unilaterally "taking away children": the period of separation is a period of high incidence of seizing and hiding. Articles 12 and 13 of the (II) explain clearly that personal safety protection orders and injunctions of infringement of personality rights can be applied for, and temporary determination of raising matters can be requested-seizing children can not solve the problem, but only lose the "reason;
  4. Documenting Obstacles to Visitation: If the other party refuses visitation, use written communication (e.g., WeChat messages, text messages) to document the sequence of “requesting visitation—being denied.” Police reports can also serve as corroborating evidence. This not only provides a basis for later enforcement of visitation rights or modification of custody arrangements but also demonstrates the other party’s lack of cooperation in litigation.
  5. psychological and emotional management: the psychological state of children will affect the judge's judgment of "stable living environment". avoiding conflicts in front of children during separation, avoiding frequent moving and transferring to other schools, and keeping children's regular life are the biggest points that parents can give their children and help themselves.

The essence of the separation period is a “dress rehearsal” of the current caregiving arrangement: whoever has actually assumed the caregiving responsibilities during this time holds the most decisive leverage in court. Treating the period of separation as a “trial run” is far more effective than delivering eloquent arguments in court.

8. Frequently Asked Questions

Can custody be changed after being sentenced?

Can. If one party directly raises domestic violence, abandonment, serious illness, bad habits or obvious failure to raise obligations, or if the child has reached the age of eight and clearly expresses his or her willingness to live with the other party and the other party has the conditions, he or she may sue to change the relationship of support. The point of proof in a change action is that "a significant change has occurred" rather than a simple reenactment of the facts at the time of the divorce.

If a mother has no income with her baby full-time, will she be considered "unable to raise a child?

will not lose custody. Full-time caregiving is, in itself, a significant investment in the child; any shortfall in financial resources can be compensated by the other party’s child support payments. When making its comprehensive assessment, the court treats “time spent with the child” and “financial capacity” as separate considerations, meaning that a stay-at-home parent seeking custody of young children is not at a disadvantage.

If both parties want children, will the court decide to take turns to raise them?

will consider, but on the premise that it is "conducive to the protection of children's interests" (Article 48 of the (I) of interpretation), and both parties need to voluntarily reach an agreement on rotational support. Rotational support requires high living distance, educational convergence and cooperation. The court will review the feasibility of the scheme, and the rotation scheme with difficulties is usually not supported.

Can the other party directly arrest people if they don't pay alimony according to the judgment?

No. The dispute over alimony is a civil dispute, and the correct path is to apply for enforcement: the court may inquire, freeze and withhold the other party's deposits, seal up and auction its property, include it in the list of dishonesty and restrict high consumption. It is enough to sue or apply directly for enforcement in the name of the child, and it is not necessary and should not take drastic measures on its own.

9. Practical Insights from a Lawyer

When fighting for custody, the parties most often ask, "If I bring more, it must be mine" and "If my income is higher, is it more certain". In practice, courts assess which parent is more conducive to the child’s development; the focus of their evaluation varies depending on the child’s age: for younger children, primary consideration is given to caregiving and stability, while older children are afforded greater consideration of their own wishes. Therefore, the strategy should not be to pile up phrases like “I love my child more,” but rather to truthfully present the facts of daily caregiving and a stable living and learning environment.

The material should be organized around three lines: who is actually taking care of (transportation, medical treatment, parents' meeting, daily expenses), whose living and accompanying conditions are more stable, and whether changing the status quo will be detrimental to children. This is especially important during the period of separation. Marks should be left on who is taking care of, where the children are going to school, and who is picking them up, because temporary arrangements during this period are often used as a basis for judgment. We should also avoid a common mistake: hiding children and blocking each other's visits in order to fight for custody, which will leave the other party a handle and do more harm than good.

The right of custody and the maintenance fee are two things. When talking, don't tie them to death, and don't think that getting the right of custody can suppress the visit of the other party. The real and effective negotiation is to find out what the other party wants: to have children, or to have a face and chips. If the other party's core demand is not for children, it can be exchanged in terms of expenses and visiting arrangements. If you really want children, put out the most favorable plan for children, and write down the visit and expenses through mediation when necessary, so as to reduce disputes in the future.

There is no shortcut to the right of custody, only stupid kung fu: make the company real, keep the evidence well, and keep the red line. The so-called "practice" is to take the daily care of the child from now on and leave records. The so-called "keep good" is to systematically sort out the vaccine book, payment voucher, pick-up record and accompanying photos. The so-called "keep" is to resolutely not touch the three red lines of domestic violence, bad habits and snatching and hiding-after the implementation of the interpretation (II), these three types of acts are decisive for the negative effect of custody judgment. At the same time, look at the results rationally: the custody dispute is essentially a dispute over the interests of the child. In the plan, the visiting arrangement is detailed and the maintenance fee is clearly written. Even if the child cannot be directly raised, a stable parent-child relationship and a clear visiting rhythm are equally precious to the child, leaving room for future changes.