Does Ningbo not have the right to visit without paying alimony?

After their divorce, Mr. Wang failed to pay child support for a prolonged period, prompting Ms. Wang to refuse his requests to see their child in a fit of anger. Mr. Wang, however, maintains that the right to visitation is a statutory right and cannot be deprived on the grounds of unpaid child support. To state the conclusion directly: the right of access is a statutory right of the parent who does not have primary custody of the child, and the other parent may not refuse such access on the ground that the former has failed to pay child support. Any arrears in child support should be resolved through claims for payment or applications for enforcement; these two matters are independent of each other and do not constitute preconditions for one another. Using the tactic of “denying access to the child” in response to “failure to pay child support” will only trap both parties in a legal and enforcement deadlock.

1. legal basis: two sets of independent rights and obligations

The “independence” of visitation rights and child support stems from two provisions of the Civil Code:

1. Visitation Rights Clause: Article 1,086 of the Civil Code provides that, following divorce, the parent who does not have direct custody of the children shall have the right to visit the children, and the other parent shall be obligated to assist in the exercise of such right. The manner and timing of exercising visitation rights shall be determined by agreement between the parties; if no agreement is reached, the People’s Court shall make a decision. If a parent’s visitation with a child is detrimental to the child’s physical or mental health, the people’s court may, in accordance with the law, suspend such visitation; visitation shall be resumed once the grounds for suspension have ceased to exist.
2. Child Support Provisions: Article 1,085 of the Civil Code stipulates that after divorce, if the children are placed in the direct care of one parent, the other parent shall bear all or part of the child support expenses. The amount of the expenses to be borne and the duration thereof shall be determined by agreement between the parties; if no agreement can be reached, the People’s Court shall make a judgment.

can be seen by comparing the two: the visitation right is given to "the party who has not been directly raised", and the maintenance obligation also falls on "the party who has not been directly raised"-the legislator allocates the rights and obligations to the same subject at the same time, which precisely shows that the two are not the consideration relationship of "you don't give money, I don't show it", but the independent and parallel institutional arrangements. The Supreme People's Court's interpretation (I) on the application of the Marriage and Family Code of the the People's Republic of China Civil Code strictly limits the suspension of visits: Article 67 stipulates that minor children, parents who directly raise their children and other legal guardians who bear the obligations of raising, educating and protecting minor children have the right to request the people's court to suspend visits. Article 68 stipulates that for relevant individuals or organizations that refuse to assist the other party in exercising the right of visiting, the people's court may take compulsory measures such as detention and fines in accordance with the law, but it cannot enforce the personal or visiting behavior of the children.

Under what circumstances can the 2. be "not allowed to see": the legal requirement for the suspension of visits

It is not always illegal to refuse to visit, but legal procedures and legal reasons must be followed. The review points for the suspension of visits are as follows:

1. Statutory ground: Visitation is detrimental to the child’s physical and mental well‑being; typical examples include situations where the visiting parent has engaged in domestic violence, drug abuse, alcohol‑induced misconduct, child abuse, or suffers from a serious mental illness, thereby posing a risk of harm to the child. As for "the other party does not pay alimony", "the relationship between the two parties is bad" and "the other party reorganizes the family", they are not legal reasons for suspending visits.
2. procedural requirements: the right subject should make a request to the people's court for the suspension of visitation, and the court should make a ruling or judgment on the suspension of visitation after examination. it is not allowed for the party directly raising to decide on its own and unilaterally announce the "cancellation of visitation". Article 66 of the (I) of interpretation stipulates that if one of the parties requests to suspend the visit in the process of performing the effective judgment, ruling or mediation statement, the people's court shall, after consulting both parties, consider it necessary to suspend the visit, make a ruling in accordance with the law; after the reason for the suspension disappears, the people's court shall notify the parties in writing to resume the visit according to their request.
3. recovery mechanism: suspension is a temporary measure rather than permanent deprivation. after the cause of suspension disappears (such as the visiting party's completion of withdrawal and rehabilitation treatment), visiting should be resumed.

There is another practice in practice that is worth reminding: blocking visits without authorization may in turn hurt the blocking party itself. In the subsequent change of custody, when the court judges "which party is more conducive to the growth of children", it will examine whether one party obstructs the parent-child relationship for a long time; malicious hiding and blocking visitation may be identified as a factor that is not conducive to the physical and mental health of children.

3. How to recover unpaid child support: three avenues

The maintenance fee and visitation right are treated separately, which means that the unpaid maintenance fee should follow its own procedures:

1. negotiation and mediation: firstly communicate with the other party about the amount of overdue payment and the arrangement of supplementary payment, and invite the village (community) people's mediation organization or the mediation before the court to intervene, and discuss the supplementary payment scheme and the subsequent payment method at one time.
2. sue separately: if the other party refuses to pay, sue for alimony in the name of the child. Collect evidence such as divorce agreement or judgment, calculation form of arrears period, collection record, etc. before prosecution. The "Answers to Several Questions Concerning the Trial of Marriage and Family Cases" (Gao Fa Min I [2016] No. 2) of the People's Court of Zhejiang High Court makes it clear that divorce lawsuits are compound lawsuits, and disputes over custody, visitation and property can be handled together in the same lawsuit-if they have not yet been divorced or are in litigation, they should be claimed together to avoid multiple lawsuits.
3. Apply for compulsory execution: if the other party refuses to perform the effective judgment, mediation statement or agreement confirmed by the judiciary, the court can apply to the court for compulsory execution based on the effective legal documents. The court can inquire, freeze and deduct their bank deposits and salary income, put them into the list of dishonesty and restrict high consumption.

The amount of alimony itself can also be adjusted dynamically: the second paragraph of Article 1085 of the Civil Code stipulates that the agreement or judgment does not prevent the child from making a reasonable request to either of the parents that exceeds the original amount when necessary. In situations where the directly custodial parent experiences a sudden drop in income or where the child’s education and medical expenses have significantly increased, an application may be made to increase child support; conversely, the paying party may also apply for a reduction in circumstances such as unemployment or serious illness.

4. How to seek redress when visitation is obstructed?

There are also relief channels for the infringement of visitation right: first communicate with the direct dependant, and specify the specific visiting time, place and handover method; if the communication is invalid, if the original judgment or agreement has clearly agreed on the visiting method, the court can apply to the court for enforcement -- the court can take compulsory measures such as fine and detention to the party who refuses to assist (Article 68 of the Interpretation (I)), however, the child cannot be forcibly handed over to the visiting party or the visiting act itself cannot be enforced. If the original judgment does not specify the visiting method, a separate lawsuit may be filed to determine the visiting time and method. The court will make a judgment based on the children's age, place of residence, study arrangement and other factors, and fully listen to the true wishes of children over the age of eight (Article 1084, paragraph 3, of the Civil Code).

5. Common misconceptions

1. Misunderstanding 1: If you don't pay child support, you have no right to look after children.. The right to visit and the maintenance are independent of each other, and the non-payment of maintenance does not constitute a ground for deprivation of the right to visit.
2. Misunderstanding 2: The direct support party can decide not to let the other party visit. Suspension of visits is subject to statutory grounds and is ruled by the court, and unilateral blocking is a refusal to assist and may be subject to coercive measures.
3. Misunderstanding 3: The right of visitation cannot be enforced. Although the court cannot enforce the child's personal enforcement, it can take measures such as detention, fines, and inclusion in the list of dishonest persons who refuse to assist.
4. Myth 4: It is a smart way to force the other party to give money by "not letting see". The effect is counterproductive: it not only constitutes an infringement of visitation rights, but also may become unfavorable evidence in the custody change litigation, and may also trigger the other party to apply for compulsory visitation and escalate the contradiction.
5. Myth 5: If the other party speaks ill of the child during the visit, the visit can be permanently banned.. Individual improper speech does not constitute a cause for suspension. It should be resolved by flexible methods such as adjusting the visiting method, shortening the visiting time, and requiring on-site supervision. Only when necessary can the court apply for suspension.

Practical design and suspension procedure of 6. visitation scheme

Most disputes over visitation stem from vague arrangements; it is more important to outline the details in advance than to seek redress afterward.

1. Design of routine visiting scheme: It should be stated in the divorce agreement or judgment-frequency of visiting at ordinary times (such as once a week or once every two weeks, receiving at 9: 00 a.m. on Saturday and sending at 5: 00 p.m. on Sunday), allocation of winter and summer vacations and legal holidays (such as living with one party for one week in winter vacation and half in summer vacation), visiting places and transportation methods, and rules for postponement and supplementary visiting when the other party's business trips or children are sick. When presiding over mediation, the Ningbo courts generally encourage solutions that clearly specify the time, place, and method of handover.
2. Alternative arrangements for high-conflict families: If there is a fierce conflict between the two parties, neutral place handover (community shared court, police office, shopping mall service desk, etc.), close relatives entrusted to pick up and drop off, and stay overnight in the visiting party's residence can be adopted to ensure continuous visits first, and then gradually restore the normal frequency.
3. Application Procedure for Suspension of Visiting: If it is found that the visit of the other party is really harmful to the physical and mental health of the children, the minor children, direct dependents or other legal guardians shall apply to the court for suspension of visiting (Article 67 of the (I) of Interpretation), together with domestic violence alarm records, medical records, drug or alcohol abuse evidence, etc.; after the court makes a decision on suspension, the reason for suspension disappears and can be applied for recovery. Do not arbitrarily block others by “blacklisting” them.
4. Consequences of refusing to assist: For individuals or organizations who refuse to assist in visiting, the court can take compulsory measures such as detention and fines (Article 68 of the (I) of interpretation), and can be included in the list of dishonesty; relevant units (such as schools and kindergartens) who refuse to cooperate can also be dealt.
5. Visiting Arrangement of Living in Different Places: If one party moves to another place, it can agree on a fixed period of video visiting (such as video on Wednesday night and Sunday every week), centralized visiting during long vacation and sharing the traveling expenses, and write the online visiting into the agreement as a supplement of daily visiting.

7. FAQ

The other party has not paid alimony all the time. Can I refuse him to look after the children?

No. The correct approach is to fix the evidence of arrears, through consultation, separate prosecution or application for enforcement of the recovery of alimony.

Under what circumstances will the court suspend visitation

It must be a situation that is not conducive to the physical and mental health of children, such as domestic violence, drug abuse, abuse, etc., and the legal subject must apply to the court, and the court will rule to suspend it, and it cannot be deprived by "sentencing" on its own.

If the other party refuses to cooperate with visitation, can I file a lawsuit?

Yes. If the effective judgment has clearly defined the mode of visit, it may apply for enforcement; if there is no express agreement, it may sue to request the determination of the time, place and mode of handover of the visit, and may together claim compensation for damages of a soothing nature (generally limited support, with emphasis on facilitating the implementation of the visit).

The right of visitation was not written at the time of divorce. Can I claim it later?

Can. If the divorce judgment or agreement does not involve the right of visitation, the direct dependant may sue separately; Article 65 of the (I) of interpretation also makes it clear that if the effective divorce judgment of the people's court does not involve the right of visitation, and the parties file a separate lawsuit on the issue of the right of visitation, the people's court shall accept it.

When the other parent takes the child to their hometown for an overnight visit, how can risks be prevented?

You can limit the visiting area and overnight conditions in the agreement or judgment-make it clear that "children are not allowed to be taken away from the city during the visiting period" and "address must be informed in advance during the overnight stay", and agree on the consequences of violation; in case of taking away or hiding children without authorization, immediately report to the police and apply to the court to order them to return and adjust the visiting mode. If the circumstances are bad, it can be used as the basis.

alimony has not been given, can you directly request to detain the other party?

Detention is a compulsory measure for refusing to implement the effective legal documents with serious circumstances, and it is necessary to apply for enforcement first: if the court still refuses to implement and has the ability to perform after investigating and controlling his deposit, salary and real estate, it can take fines and detention measures according to law and be included in the list of dishonesty; simply failing to pay alimony will not directly trigger detention, and it is necessary to "apply for enforcement first and then deal with the circumstances of resisting".

The other party always belittles me in front of the child during the visit. Can you stop the visit?

Individual improper speech is generally not enough to constitute the cause of suspension, and the court will judge according to the degree of influence. You can first request to adjust the visiting mode (shorten the time, change to public places, temporarily stay overnight) and keep relevant records; If you continue to provoke parent-child relationship and seriously affect the mental health of your children, you can apply to the court for suspension of visiting and attach psychological evaluation, consultation records and other evidence.

After divorce, I have been unable to see my child. Can I directly apply for enforcement of the visitation rights?

If the effective judgment has specified the visiting method and time, the court can apply to the court for compulsory execution, and the court will take compulsory measures such as fine and detention to the party who refuses to assist; if the original judgment or agreement does not specify the visiting arrangement, the court should first sue to determine the visiting scheme and then discuss the implementation. In the execution, the court will make flexible arrangements according to the age and wishes of the children to avoid placing the children in the opposite of enforcement.

Is there a time limit for visitation rights

visitation right is a legal status right, which will not be eliminated due to the passage of time, nor will it be automatically suspended due to the increase of a woman's age; as long as there is no legal reason for suspension, the party who has not directly raised can claim and exercise visitation during the whole period of minors. When a child reaches the age of eighteen, the visitation right system naturally loses its applicable object, and parent-child interaction returns to the category of family ethics.

8. Practical Insights from a Lawyer

Taking "no child care" against "no child support" is the most common lose-lose situation after divorce. Visiting and alimony are two sets of independent things. One party owes money and cannot be the reason for you to refuse the other party's visit. If the other party does not show it, it is not the reason why you do not pay alimony. The first thing to do in practice is to separate and deal with two things: arrears take the path of recourse and enforcement, visits are blocked take the path of assistance in visits and relief, don't get mixed up and threaten each other, children are caught in the middle but the most affected.

When dealing with visits, the key is to write "how to explore" clearly in advance.It is better to stipulate the specific time, place, transportation method and holiday arrangement in the agreement or judgment, and vaguely write "visit at any time" which is most likely to cause disputes in the future. If the other party occasionally adjusts due to events, it can negotiate and fine-tune, but it should be confirmed in the chat record to avoid saying nothing. If the child is younger, the practical factors such as lunch break and school transportation should be taken into account. The stronger the plan is, the smaller the room for competition. The more specific the plan is written, the less wrangling will be in the future.

If the other party is in arrears with the maintenance fee for a long time, don't use the visiting right of the child to retaliate. You can claim payment to the court, apply for enforcement, seal up, withhold the other party's income and accounts, the recovery of maintenance is not subject to the general statute of limitations, can be recovered for a long time, and can claim the amount payable during the period of arrears. If you really need to suspend the visit of the other party, you can only go through legal procedures and produce evidence that is not conducive to the child's physical and mental health, and the court will decide, instead of unilaterally "not letting you see", otherwise you may be asked to assist in the visit.

Maintenance and visitation rights are two cars running on the road: arrears go through the recourse procedure, visitation blocked go through the security procedure, and no one should take each other as "hostages". For the direct caregiver, cooperation with visitation is both a legal obligation and a responsibility to protect the child's full paternal and maternal love; for the payer, paying maintenance in full and on time is the bottom line to avoid enforcement and preserve visitation rights. Both parties should specify the time, place, frequency and handover method of the visit in the agreement or judgment, and specify the payment date and payment method of the alimony, so as to reduce friction from the source.