Insights

What evidence is more favorable in the fight for custody in Ningbo

Ningbo Author：LuXu WANG

Mr. Li from Haishu District, Ningbo, is currently in divorce proceedings with his wife. The two are locked in a dispute over custody of their eight-year-old son; his wife argues that since the child has lived with her since early childhood, custody should be granted to her. In child custody cases, “evidence is king,” yet the vast majority of parties are unaware of exactly what the court considers. Directly to the conclusion: Article 1084 of the Civil Code establishes the general principle of "most beneficial to minor children" and is treated in layers according to age groups-under the age of two, the principle of direct support by the mother is taken, the court decides according to the principle of most beneficial to the children after reaching the age of two, and the true wishes of the children should be respected when reaching the age of eight. The organization of evidence must focus on the core of "who is more beneficial to children, according to the age group and legal considerations, the general" I am in good condition "is hardly convincing.

1. Legal Framework: Age Group Determines the Burden of Proof

The third paragraph of Article 1084 of the Civil Code stipulates that after divorce, children under the age of two shall be directly raised by the mother as the principle; children over the age of two, if both parents fail to reach an agreement on the issue of raising, the people's court shall make a judgment according to the specific circumstances of both parties and in accordance with the principle of being most beneficial to the minor children; children over the age of eight shall respect their true wishes.

The accompanying rules have translated the principle of “the best interests of the child” into specific factors for consideration:

  1. Under two years of age: In principle, the child shall live with the mother. If the mother suffers from infectious diseases or other serious diseases that cannot be cured for a long time and is not suitable for living together, has the conditions for raising and fails to fulfill the obligation of raising, or is not suitable for living with the mother for other reasons, the father's request for direct raising shall be supported (Article 44 of the Interpretation (I) for Marriage and Family); If both parents agree to live with their father and have no adverse effect on the healthy growth of their children, the court shall support (Article 45).
  2. has reached the age of two and is under the age of eight: priority can be given to one party who has legal priority-sterilization or loss of fertility; Children live longer and change the environment obviously unfavorable; There are no other children and the other party has other children; Life is more beneficial to the children while the other party suffers from long-term infectious diseases and other diseases that are not suitable to live together (Article 46 of the (I)). Where children have been living with their grandparents or maternal grandparents for a prolonged period, and the elderly are willing and capable of continuing to provide care, this may also be considered a priority factor (Article 47).
  3. Once the child has reached eight years of age, the court will separately hear the child’s wishes; however, “respect” does not mean that the child has the final say. The paramount consideration remains what is in the best interests of the child, and the child’s expressed views serve only as an important reference.

specially reminds Article 14 of the Interpretation (II) 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 (Fa Shi [2025] No. 1), which came into force on February 1, 2025: For children over two years old, one of them has family abuse to be abandoned, gambling and drug abuse, bigamy and cohabitation with others or other serious violations of the duty of husband and wife loyalty, robbing and hiding minor children, the court shall give priority to the direct maintenance of the other party on the basis of the principle of best interests of the child. This means that “fault” and “parental alienation” are clear negative factors in custody disputes.

2. List of evidence for child custody disputes

Evidence should be organized into four categories—“closeness of the relationship with the child,” “parenting capacity,” “support resources,” and “adverse factors pertaining to the other party”—and each item should be numbered sequentially:

  1. Evidence of cohabitation: the child’s immunization record, medical records, pick-up and drop-off records from kindergarten and school, parent group chat logs, and testimonies from neighbors and relatives and friends, all serving to establish who is the primary caregiver in daily life;
  2. Evidence of investment in education and child development: records of payments for extracurricular classes, homework tutoring records, and attendance at parent–teacher meetings, demonstrating actual investment in the child’s education;
  3. Evidence of parenting capacity: bank statements, tax payment certificates, employment contracts, property ownership or lease agreements, and housing provident fund contribution records, demonstrating a stable residence and financial means;
  4. Evidence of caregiving resources: the health status of one's own parents (the child's grandparents), their distance of residence, and whether they have been providing long-term transportation and childcare assistance can be cited in accordance with Article 47 of (I);
  5. The other party's unfavorable evidence: domestic violence alarm records, public security warning letters, injury photos, administrative punishment decisions, gambling and drug use records, evidence of cohabitation outside marriage, alcoholism or mental illness medical records-note that such evidence is also the basis of divorce damage compensation (Article 1091 of the Civil Code);
  6. Seizing and concealing evidence: records of the other party or family members forcibly taking the child away, police report receipts, and clues about the child being moved and hidden. According to Interpretations (II), Articles 12 through 14, the party who seizes and conceals the child may instead face an unfavorable determination;
  7. Evidence of the wishes of a child aged eight or above: the child’s expressed preferences to relatives, friends, and teachers (to be ascertained by the court through individual questioning; self-recorded videos by parents that are suggestive in nature have limited evidentiary value).
  8. Evidence of obstructed visitation: chat logs showing denial of visitation and police reports, demonstrating that the other party is impeding parent–child contact and is detrimental to the child’s physical and mental well‑being;
  9. Evidence of Character and Lifestyle: Certificate of No Criminal Record, proof of regular daily routine, and evidence of no harmful habits;
  10. Environmental Comparison Evidence: A comparison of school districts, living conditions, and childcare resources in the two locations, reflecting considerations related to “stability of the living environment.”

3. The relationship between custody, child support, and visitation rights.

The three are often confused with one another; it is essential to clarify:

custody solves the problem of "who the child lives with"; Maintenance is the other party's obligation to pay money to the children (Article 1085 of the Civil Code). It has nothing to do with whether they have the right to visit. The amount is determined according to the actual needs of the children, the affordability of both parties and the local living standard. Those with fixed income are generally paid 20% to 30 of the total monthly income according to Article 49 of the interpretation (I). Even if the divorce agreement stipulates that one party does not bear alimony, the agreement only binds both parents, and children can still request payment when necessary (Article 16 of the Interpretation (II)); Visitation right is the legal right of the party who has not been directly raised (Article 1086 of the Civil Code). Obtaining custody does not mean that the other party can be prevented from visiting. Malicious obstruction of visiting will become an unfavorable circumstance in the subsequent lawsuit of changing custody.

4. Common misconceptions and correct answers

  1. Myth: Good financial means automatically guarantee custody.Correct answer: Financial means are only one component of “parenting capacity.” Courts place greater emphasis on who has assumed primary day-to-day caregiving responsibilities and who has a deeper emotional bond with the child. A high‑income father who has been largely absent may not prevail over a mother who has provided consistent, hands‑on care.
  2. Myth: Seizing the child and creating a fait accompli will be effective.Correct answer: Quite the opposite. Explanation (II): Articles 12 to 14 clearly state that if one party snatches or conceals a minor child, the other party may apply for a personal safety protection order or an injunction against infringement of personality rights; moreover, the party who snatches the child may also lose points in the determination of custody rights.
  3. Misconception: Children will go with whoever they say they will. Correct answer: The wishes of children aged eight or older constitute an important, though not the sole, factor that should be “respected”; the court must still make a comprehensive determination of the arrangement that is in the best interests of the child and must prevent either parent from inducing or threatening the child to express a particular view.
  4. Myth: Once custody is awarded, it can never be changed. Positive Solution: If one party directly raises domestic violence, bad habits, serious diseases, failure to raise obligations or major changes in children's wishes, the other party can sue to change the relationship of raising; if the child has reached the age of eight and clearly expresses his willingness to live with the other party, the possibility of change increases obviously.

5. Key procedural points in custody litigation

Beyond the evidence, following the proper procedures also determines the outcome:

  1. Pre-litigation assessment and mediation: The second paragraph of Article 1079 of the Civil Code stipulates that the people's court should conduct mediation when hearing divorce cases, and custody disputes are usually negotiated repeatedly at the mediation stage-if both parties can reach an agreement on the support and visitation plan, the mediation statement and the judgment have the same effect, and can avoid secondary harm to the child in court;
  2. Filing and jurisdiction: Divorce and custody disputes shall be accepted by the basic court of the defendant's domicile or habitual residence, and the complaint shall state the basic information of the children, the custody request and the factual reasons; if the divorce is filed separately to change the custody relationship, it shall be handled according to the general jurisdiction of the basic court;
  3. the time limit for adducing evidence: submit evidence within the specified time limit according to the adducing notice served by the court, and those who have real difficulties can apply for an extension; if there is more evidence, it will be numbered according to the four categories of "care, ability, resources, and the disadvantage of the other party", with the catalogue of evidence and the purpose of proof attached;
  4. Apply for investigation and evidence collection: the other party's income, medical records, alarm records, parent-child relationship and other materials that I can't get by myself can apply for the court in writing or apply for an investigation order, stating the clues and the purpose of proof. After the court's permission, the court or the owner can get them;
  5. Hearing the Child’s Wishes: For children aged eight or older, the court generally conducts a separate interview and prepares a record. The questions typically focus on the child’s daily life, relationships with both parents, and educational arrangements. Parents should refrain from “preparing” the child in advance; statements that appear insincere may undermine their credibility.
  6. Second instance and execution: those who refuse to accept the judgment of first instance can appeal; those who refuse to deliver their children or obstruct the visit after the judgment comes into effect can apply for compulsory execution. The court can take compulsory measures such as fine and detention to those who refuse to assist. However, the enforcement of custody right is mainly based on persuasion and education, and generally does not forcibly deprive children of their personal freedom. For this reason, mediation and self-negotiation are more important than judgment in the case.

6. Selection and expression of the form of the parenting plan

Custody is more than just a matter of “who gets it”; the structure of the proposed arrangement directly influences the court’s ruling and the ease of enforcement.

  1. One party has sole custody; the other party has visitation rights.: The most common form—court judgments typically include three key components: determination of primary custody, scheduling of visitation rights, and the amount of child support. The more specific the visitation plan is—such as the days and times for pick-up and drop-off each week, where handovers will take place during holidays, and how school vacations will be divided—the less resistance there will be to its implementation.
  2. Take care in turn: Article 48 of the (I) of Interpretation allows both parties to agree to take care in turn directly, which is applicable to the situation where both parties live in similar places, the educational environment is connected smoothly, and the communication and coordination are good; the rotation cycle is generally based on semester or half a year, and too frequent rotation (such as weekly rotation) is not conducive to children's adaptation;
  3. Primary custody + living with the other parent on a temporary basis: For example, if the child typically lives with one parent during the school term and with the other during school holidays, this constitutes a compromise between the two aforementioned arrangements. When both parents are similarly situated and the child is relatively older, courts often encourage such an arrangement.
  4. the arrangement of grandparents' assistance in raising: if the direct supporting party is busy with work, the "grandparents' daily assistance in transportation and care" can be written into the scheme, and the court will (I) the consideration of Article 47 in combination with the interpretation (the children live with the grandparents for a long time and the elderly have the ability to take care of them);
  5. Joint decision-making authority over major matters in education and healthcare: Regardless of which parent has primary custody, it can be agreed that major matters such as transferring schools, substantial medical expenses, and overseas travel will be decided through mutual consultation—this not only safeguards the child’s interests but also helps reduce conflicts arising from the custodial parent making unilateral decisions in the future.

Suggestions when submitting the plan to the court: explain "why is my plan the best for children" as an enforceable timetable-how to arrange school transportation, who is responsible for the illness, how to share the expenses of interest classes, and how to deal with blocked visits. The more specific the plan, the more convincing it is; at the same time, frankly explain the infeasible aspects of the other party's plan (such as long distance leads to transfer and no one to actual care), when criticizing the other party, you are not right about things. Aggressive expressions make the judge alert to your ability to cooperate.

7. Frequently Asked Questions

When should evidence be submitted?

In principle, evidence should be submitted within the evidentiary period designated by the court; submissions made after the deadline may not be admitted. In urgent circumstances where evidence may be lost, an application for preservation of evidence may be filed. Before the hearing, organizing written evidence according to a checklist and attaching explanatory notes is more likely to gain the judge’s acceptance than scrambling to locate it on the spot during the trial.

Will the court proactively conduct investigations and on-site visits?

In family litigation, the court may, upon application or ex officio, investigate and collect evidence; where necessary, it may visit communities, schools, and childcare institutions, or commission family investigators or social welfare organizations to ascertain the child’s actual living conditions. When a party applies to the court to obtain medical records, police reports, or other materials that the party cannot obtain on its own, it shall submit a written application and provide relevant leads.

Both parties have roughly similar circumstances—can they take turns with custody?

Sure. According to the interpretation of Article 48, (I), where both parents agree to alternate direct custody in a manner that is in the best interests of the child, the court should support such an arrangement. Joint custody places high demands on the proximity of both parents’ residences and their level of cooperation. The agreement must clearly specify the rotation schedule, the allocation of expenses, and arrangements for educational continuity; if cooperation is lacking, the court will not approve such a joint-custody arrangement.

The other party is threatening to take the child away—what can I do in advance?

You can take the initiative to set up defenses. According to Article 12 of the (II) of Interpretation, if one parent or his or her close relatives snatch or hide minor children, the other parent may apply to the people's court for a personal safety protection order or a prohibition on infringement of personality rights, and the court shall support it in accordance with the law; in case of robbery and hiding during separation, the court may be requested in accordance with Article 13 to temporarily determine the child support and request the perpetrator to assist in performing guardianship duties. Reporting any warning signs to the police and documenting them, then applying for a protection order, is far more effective than trying to track down the child afterward.

What should I do if the other party suddenly transfers the child to a new school and takes the child away during the litigation?

deal with the situation according to the situation: if the former party changes the living situation of the children without judgment, he can apply to the court to determine the temporary custody arrangement (the spirit of article 13 of the (II) of interpretation is applicable to the robbery and hiding during the separation period); if he refuses to return the children after the judgment takes effect, he can apply for compulsory execution. In cases involving significant changes such as transferring schools or relocating, if one parent unilaterally makes such decisions in a manner that undermines the child’s stability, this may be cited during the determination of custody as evidence of a lack of cooperation and disregard for the child’s best interests.

8. Lawyer's Practical Insights

In custody cases, the favorite sentence of the parties is "I have better conditions than him", but this sentence is hardly convincing in court. Experience in handling cases has repeatedly suggested that the court is not looking at who has a high income, but "who can get a stable, continuous and healthy growth environment for the child to follow", and the focus of evidence will change with the age of the child-in principle, it will follow the mother when the child is under two years old, and the child's own wishes will be respected when the child is over eight years old. Therefore, before preparing evidence, we should first make clear what age the child is in, and then decide where to spend his energy, instead of piling up a pile of income certificates and property certificates at any stage.

Following this line of thinking, the evidence should be organized systematically, rather than pieced together. It is usually necessary to cover several directions: the ability to support and stable income, the fact of care for living with the child for a long time, the conditions of residence and education, a specific and executable support plan, and the situation of the other party that is not conducive to support. Among them, the "fact of long-term care" is the most easily overlooked but has the most weight-who is picking up, seeing a doctor, tutoring and accompanying, these daily traces are far more effective than the sentence "I have always taken it with me. The support plan should also be specific, such as who will take care of it, where to go to school, and how to arrange visits, so that the judge can see that you are considering the child itself, not your own winning or losing.

Program tools and timing are equally important. In practice, after the evidence has been prepared to a certain extent, you can apply for a family investigation, psychological assessment, etc., so that a neutral third party can strengthen your claim; for children who have reached the age of eight, you must truthfully treat their true wishes and cannot induce or exert pressure, otherwise it will easily backfire. A special reminder: Don't rob or hide children during the litigation period. It seems to be "dominant first", but in fact it may be deemed as not conducive to the growth of children, but reduce points. Putting effort into evidence and plans to keep your child's life as stable as possible is usually more conducive to the final result than any "rush.

The winner or loser of the custody struggle is not in the performance of the court trial, but every day during the marriage and separation period: who is picking up, who is accompanying the school, who is taking care of the sick child at night, these traces will eventually appear in the court in the form of evidence. It is suggested that the party with the intention of competing should consciously retain the three types of evidence of common life, education investment and assistance in care from now on, and at the same time resolutely refrain from stepping on the two red lines of "snatching and hiding" and domestic violence. The wishes of children over the age of eight must be expressed through formal channels and must not be induced. A child is not a trophy, and the more specific and feasible the care plan (including visitation arrangements) is written, the higher the probability of being adopted by the court.