The Legal Essentials of the Ownership of the Rights of the Divorce Case in Ningbo
When couples divorce, the issue of child custody also arises. For children of different ages, what is the difference in custody determination? How to stipulate the maintenance fee? For stepchildren, adopted children and families with multiple children, how to stipulate the custody right? This article makes a brief analysis of the ownership of child custody in different situations, hoping to be helpful to you.
1. child under two years of age
according to the third paragraph of Article 1084 of the the People's Republic of China Civil Code (hereinafter referred to as the Civil Code) and 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 (hereinafter referred to as the Interpretation of the Marriage and Family Code), children under the age of two shall be directly raised by their mothers. However, if the mother has one of the following circumstances, the people's court shall support the father's request for direct support:
(1) Suffering from infectious diseases or other serious diseases that cannot be cured for a long time, and their children should not live with them;
(2) The conditions for maintenance do not fulfill the obligation of maintenance, and the father requires the children to live with them;
(3) For other reasons, it is really inappropriate for the child to live with the mother.
For example, the mother's economic ability and living environment are obviously unfavorable to the upbringing of her children, or the mother's misconduct is not conducive to the growth of her children, or she is sentenced to prison for illegal crimes and cannot raise her children, etc.
In addition, according to Article 45 of the interpretation of marriage and family, if both parents agree that children under two years of age should be directly raised by their father and have no adverse effect on the healthy growth of their children, the people's court shall support it.
2. child is over two years old
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.
According to Article 46 of the Interpretation of Marriage and Family, for minor children who have reached the age of two, both parents require direct support. If one party has one of the following circumstances, priority may be given:
(1) Has been sterilized or lost fertility due to other reasons;
(2) Children live longer with them, and changing their living environment is obviously detrimental to their healthy growth;
(3) has no other children and the other party has other children;
(4) Children live with them, which is beneficial to their growth, while the other party suffers from infectious diseases or other serious diseases that cannot be cured for a long time, or has other circumstances that are not conducive to the physical and mental health of the children, and it is not suitable to live with the children.
Theoretically speaking, which party can provide a more conducive environment and conditions for the children's life, the direct custody right belongs to that party. While distinguishing between considerations:
the child has reached the age of two and is under the age of eight: when the court makes a judgment based on the principle of being most beneficial to minor children, it mainly considers which parent can take care of the child, such as who often signs the child's homework, who often opens the parents' meeting, and who pays, signs and accompanies the extracurricular activities.
The child has reached the age of eight and under the age of eighteen: the true wishes of the child should be respected.
3. have lived with their grandparents for many years and may be a priority for the parent to raise children.
According to Article 47 of the Interpretation of Marriage and Family, the conditions for parents to raise their children are basically the same, and both parties require to directly raise their children, but the children have lived alone with their grandparents or grandparents for many years, and the grandparents or grandparents require and have the ability to help their children take care of their grandchildren or grandchildren, which can be considered as a priority condition for the father or mother to directly raise their children.
4. take turns to raise
according to Article 48 and Article 60 of the interpretation of marriage and family, the people's court shall support the agreement of both parents to directly raise their children in turn on the premise of protecting the interests of their children. During the divorce proceedings, if both parties refuse to raise their children, the people's court may first rule that one of the parties shall temporarily raise the children.
5. bad behavior
if one of the parents is often violent, alcoholic, etc., the court will give priority to raising the child by the other parent. "Derailment" generally does not affect the determination of child custody.
6. maintenance
parents have the obligation to pay maintenance to their minor children and adult children who are unable to live independently. Even if both parents divorce, the father or mother who does not directly support the children still has this obligation.
The maintenance fee can be negotiated by both parents on an equal and voluntary basis, and a clear and specific agreement can be reached on the amount and payment method of the maintenance fee. The agreement can also stipulate the amount of increase in annual alimony and special circumstances, so that the annual alimony can be flexibly changed and more operable. If the two parties cannot negotiate, the court will proceed from protecting the legitimate rights and interests of the children and conducive to the healthy growth of the children, and make a judgment in accordance with the law based on the actual needs of the children, the affordability of the party paying the maintenance fee, and the actual local living standards.
7. evidentiary strategy
if the parent wishes to raise the child directly, he or she shall fully prove the following facts and express his or her good faith in an appropriate manner:
first, it is necessary to prove that one has sufficient conditions for raising children, which is conducive to the healthy growth of children. For example, one's own work situation, education situation and economic situation are better than those of the other party. A stable job and high-quality economic conditions can at least provide children with a good material life, and a high degree of education is more conducive to helping and guiding children to learn and grow. The above is strong evidence for direct support.
Second, prove that the child has been following their own (including their parents) life. If the child has been living with the father or mother for a long time, the court will not decide to change the status of maintenance in the absence of special circumstances. Because a stable and continuous living environment and learning environment are more conducive to the growth of children.
Third, express sincerity. Divorce disputes involve not only the maintenance of children, but also the division of property. If concessions can be made on the division of property, there may be an advantage in the issue of child support.
In addition, even if the upbringing does not belong to one's own party for the time being, it does not mean that there is no possibility of directly raising the child in the future. If the party living with the child actually loses the ability and conditions to continue to raise the child, such as those who need to serve a long sentence for a crime, those who are detained for compulsory detoxification due to drug abuse, and those whose whereabouts are unknown when they leave home, all lead to the custody changes.
8. evidence
in a child custody dispute, the parent may submit the following evidence:
(1) Evidence of fertility loss, such as a hospital certificate or sterilization certificate;
(2) Evidence that can create a good living environment for the child, such as proof of income, living environment, and educational background;
(3) Other evidence that can prove that one is more suitable for raising children;
(4) Labor contracts and other income contracts, such as manuscript fees, royalties, etc., to prove the income of both parties;
(5) Wage certificates and wage slips issued by one's own party or the other party's unit to prove the wage income of both parties;
(6) The lease contract of one's own party or the other party to prove the rental income of both parties;
(8) The books or running records of the business of both parties to prove the operating income of both parties;
(9) The actual expenses of the children, including medical expenses, education expenses, living expenses, etc.
The attribution of 9. direct support does not change the parent-child relationship
the relationship between parents and children shall not be eliminated by the divorce of the parents. After divorce, whether the children are directly raised by the father or the mother, they are still the children of both parents. Parents still have the rights and obligations to raise, educate and protect their children.
10. one of the parents is serving a sentence
since one of the parents is serving a prison sentence and there are no conditions for maintenance, it is very rare for the court to decide that the person serving the sentence is to raise the child. If one party serving the sentence insists on raising the child, and his parents are willing to perform the duty of raising the child on his behalf, and the other party also agrees, the court may allow it, but if the child is a minor over eight years old, the opinion of the child shall be sought.
XI. stepchildren
according to Article 54 of the interpretation of marriage and family, when the biological father divorces his stepmother or the biological mother divorces his stepfather, if the stepfather or stepmother does not agree to continue to raise the stepchild who has been raised and educated by him, he shall still be raised by the biological father or mother.
If the stepfather or stepmother is unwilling to continue to support the stepchild, he or she may no longer bear the maintenance of the stepchild. If the divorced step-parents are willing to bear part or all of the child's maintenance, the court shall allow it. Such payment is not a legal obligation and should be voluntary on the part of the stepparents.
XII. Adopting Children
adopted children and biological children are equal in their rights and obligations with their parents. If the other party does not object to the adoption of a child by one of the husband or wife, the relationship between the parent and the child has been formed. Article 1067 of the Civil Code stipulates that the parents have the obligation to raise the child. Even if the parents divorce, the party who does not directly raise the adopted child is also obliged to pay the maintenance fee for the adopted child.
If a child is adopted by one of the husband or wife, and the other party always objects, after divorce, the child shall be brought up by the adoptive party.
13. How direct support with two children should be distributed
for parents with two children, they can first negotiate to determine the ownership of their children's direct support. If the negotiation fails, they can go through litigation. If both children are over two years old, the court will generally decide that each parent should raise one child, which is the choice of the court for the consideration of economic responsibility sharing, child growth and parents' energy. If the children are under two years old, in principle, they will be raised by the mother.
XIV. Right of Visitation
the right of visitation refers to the right of the father or mother who does not directly raise the children after divorce to visit, contact, meet, communicate, and live together for a short time with the minor children. This is the right of an indirect parent. Article 10286 of the Civil Code stipulates that after divorce, the father or mother who does not directly raise the children has the right to visit the children, and the other party has the obligation to assist; the method and time of exercising the right to visit shall be agreed upon by the parties; if the agreement fails, the people's court shall make a judgment; if the father or mother visits the children, which is not conducive to the physical and mental health of the children, the people's court shall suspend the visit according to the visit; After the reason, the suspension shall resume the visit.
15. In divorce cases, we should not take extreme measures to fight for support by "snatching and hiding children", but should adopt legal methods
according to Article 313 of the the People's Republic of China Criminal Law: "If the judgment or ruling of the people's court is capable of executing but refuses to execute it, and the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or a fine; the circumstances are particularly serious., Sentenced to fixed-term imprisonment of not less than three years but not more than seven years and a fine."
therefore, those who snatch or hide their children after the court decides to directly raise them may commit the crime of refusing to execute the judgment or ruling and face criminal punishment.