Insights

How to determine the ownership of children's support after divorce in Ningbo

Ningbo Author：LuXu WANG

In divorce, parents are often most concerned about who their children live. When determining the ownership of custody, the court does not simply look at who has the highest income, but follows the principle of "the most beneficial to minor children", and combines the children's age, parental conditions and other comprehensive judgments.

1. legal basis

  • paragraph 3 of Article 1084 of the Civil Code: After divorce, children under the age of two shall be directly raised by their mothers. 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.
  • 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: If a divorce case involves the upbringing of minor children, the children under the age of two shall be dealt with in accordance with the principles stipulated in the third paragraph of Article 1084 of the Civil Code.
  • Article 45 of the "Interpretation (I)": If both parents agree that a child under two years of age is directly raised by the father and has no adverse effect on the healthy growth of the child, the people's court shall support it.
  • Article 46 of the Interpretation (I): 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: the (I) has undergone sterilization or has lost fertility due to other reasons Ability; (II) children live longer, changing the living environment is obviously detrimental to the healthy growth of the children; the (III) has no other children, and the other party has other children; (IV) 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 their physical and mental health, it is not appropriate to live with their children.
  • Article 48 of the (I) of interpretation: on the premise that it is conducive to the protection of the interests of their children, if both parents agree to directly raise their children in turn, the people's court shall support it.

2. core points

  1. under two years of age, the principle of mother's support

unless the mother suffers from a serious illness, fails to maintain the child, or the two parties agree to be raised by the father and have no adverse effect on the child, the child is generally raised directly by the mother.

  1. More than two years old to see the comprehensive conditions

the court will examine the economic ability of both parents, living environment, educational background, company time, emotional foundation with their children, whether they have bad habits, whether they have other children and other factors. In Ningbo, some grass-roots courts (such as Ninghai and Yuyao) have family investigators who can investigate the actual living conditions of their children and issue reports for the court's reference when judging the principle of "most beneficial to minor children" (according to the White Paper on Family Trial of Yuyao Court and Ninghai Court).

  1. 8 years old and above to respect children's wishes

if the child has reached the age of eight, the court will usually ask his or her wishes separately and reflect them in the judgment. However, the wishes of the children are not the only criterion and still need to be in their best interests. Some courts in Ningbo (such as Ninghai Court) adopt round-table tribunals and rely on family investigators to visit, which is more conducive to listening to the true wishes of their children (according to the Ninghai Court Family Trial White Paper).

  1. Rotation of custody requires the cooperation of both parties.

If both parents agree through consultation and the rotation of raising is conducive to the interests of the children, the court may support it. Rotational upbringing requires high communication skills and stability for both parties.

  1. Maintenance and custody are two issues.

No matter who the custody belongs to, the party who does not directly support should pay the maintenance fee; the ownership of the custody does not affect the exercise of the right of visitation.

3. boundary conditions

  • if one party has domestic violence, gambling, drug abuse, alcohol abuse, child abuse, etc., the court will generally not award custody to that party.
  • If one party is away for a long time and cannot actually take care of the children, even if the income is higher, it may lose custody because it is not conducive to the growth of the children.
  • Having other children after one party remarries is not a reason for loss of custody of course, but may be considered as a comprehensive factor.
  • The long-term help of grandparents to take care of their children can be used as a reference factor for one party to have the conditions of support, but it is not a decisive factor.

4. operational steps

  1. evaluate self-support conditions: economic income, living stability, working hours, companionship ability, education concept.
  2. Collect evidence in favor of oneself: salary flow, real estate certificate, school district certificate, daily care photos, school communication records, medical records, etc. Among them, electronic evidence such as WeChat chat and transfer records must be kept in the original carrier. According to the White Paper on Family Trial of Yinzhou Court, such evidence is difficult to be accepted due to many defects in proof. It is appropriate to fix the original equipment or notarize it in advance.
  3. If there is any adverse evidence from the other party, such as domestic violence alarm records, gambling records, alcohol abuse evidence, infidelity evidence, etc., it shall be sorted and submitted in accordance with the law.
  4. Children who have reached the age of eight shall fully communicate with their children in advance, respect their true wishes, and avoid inducement or coercion.
  5. Try to negotiate a settlement. If the negotiation fails, the claim and reasons for custody shall be clearly put forward during the prosecution.
  6. If there is a significant change in the conditions of maintenance after the judgment, the change of custody may be sued in accordance with the law.

5. common mistakes

  • myth 1: High income will definitely get custody.

Financial ability is only one of the factors, and the court pays more attention to physical companionship, educational ability and the interests of the children.

  • Myth 2: If a child is a boy, he must follow his father.

There is no gender bias in the law. The key is to see which party is more conducive to the growth of children.

  • Myth 3: Get custody can not let the other child.

The right of visitation is a legal right, and the direct guardian should cooperate.

  • Myth 4: The custody right cannot be changed once it is sentenced.

If the directly dependent party has serious illness, maltreatment of children, loss of ability to support, etc., the other party may sue for change of custody.

Practical Experience of 6. Lawyers

to determine who the child lives with, the court follows the principle that is most beneficial to the minor child, rather than simply comparing who has a higher income. Children under the age of two shall be directly raised by their mother as the principle; if they have reached the age of two and the parents cannot reach an agreement, the court shall judge in the light of the specific circumstances of both parties; if they have reached the age of eight, the true wishes of the child shall also be respected. The most common mistake that the parties concerned make is to focus on proving that their conditions are good, but ignore that what the court really cares about is who the children are more conducive to their growth. If the direction is wrong, no matter how much material they have, it will be difficult to play a role.

Evidence can be organized around three dimensions. The first is the stability of life, who actually takes care of the children for a long time, and whether the children live with whom, live and study environment is coherent; The second is the parents' raising conditions and wishes, including the ability to care and energy input, not just income. The third is the wishes of the children of the right age, which should be presented in an appropriate way and should not be induced or pressured. Records of daily care, materials for going to school and seeking medical treatment, and stable proof of residence are all the backbone supporting the first dimension, and they are often the most important part of the dispute.

There are several lines in the process that don't cross. Don't rob or hide your children in order to prove that you are more suitable, and don't belittle each other in front of your children. These practices may be regarded as not conducive to the growth of your children, but hurt your own ideas. After the dependency relationship is determined, if there is a new situation, you can still request a change, so pay attention to the retention of daily facts. The negotiation takes the stability and continuity of the child as the starting point, which is more likely to push the other side to make concessions than exposing each other's shortcomings, and it is usually easier to talk about a result that both sides can implement for a long time.