To whom do child custody rights belong when a child in Ningbo turns eight years old? How does the court solicit the child’s opinion?
The child had just turned 9 at the time of the divorce and both parties wanted custody. The man's economic conditions are better, and the woman spends more time with her children. How does the court listen to the opinions of children? Ningbo marriage and family lawyers combine the provisions of the Civil Code to analyze the rules of judgment on the ownership of custody of children over the age of 8.
1. 8 years old is a clear line of law
the third paragraph of Article 1084 of the Civil Code stipulates that after divorce, children under the age of two shall be directly supported by the mother. 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.
In other words, 8 years of age is a clear legal dividing line. For children under the age of 8, the court shall make judgments mainly based on the principle of being most beneficial to minor children, and shall not force the children to solicit their wishes; for those who have reached the age of 8, the court shall respect their true wishes.
2. respect for will does not mean full obedience.
The will of the child is only one of the important factors. If the child's will is obviously coerced or induced by one party, or his choice is obviously inconsistent with his own interests, the court may not accept it or use it as a reference only. While listening to the wishes of the children, the court will also comprehensively consider factors such as the economic conditions, living environment, educational ability, physical and mental health of both parties.
If one party has domestic violence, gambling and other situations that are not conducive to the growth of the child, even if the child expresses his willingness to live with him, the court may not accept the child's wishes and decide that the other party should raise him.
3. courts usually ask children individually
in order to avoid the child being influenced by the parents, the court may ask the child alone outside the court, or entrust family investigators and social workers to understand the child's true thoughts. There is always a psychologist or social worker present at the time of questioning to ensure that the child expresses his or her true wishes in a relaxed environment. The Ningbo District Court has already used the family investigator mechanism in family cases-according to the Ninghai Court Family Trial White Paper (reported by China's Ningbo Net in June 2023), the Ninghai Court Family Investigator issued a total of 4
66investigation reports from 2020 to 2022.
The court will record the content of the child's expression, demeanor and emotional state when expressing, and comprehensively judge the authenticity of the will. If the child is found to be erratic or obviously manipulated by one party, the court may combine other evidence to make a comprehensive judgment.
4. economic capacity is not the decisive factor
although economic conditions are important, the court pays more attention to the stability of the child's long-term living environment, the emotional connection with the main caregiver, the parents' educational philosophy and the physical and mental health. One party with superior economic conditions but long-term absence of children's growth may not be more advantageous than the party with longer time.
According to Article 46 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the the People's Republic of China People's Republic of China, for minor children who have reached the age of two and whose parents require direct support, one of the following circumstances may be given priority: one party has undergone sterilization or has lost fertility due to other reasons; Children who live for a long time and change their living environment are obviously detrimental to the healthy growth of children. No other children, the other party has other children; the children live with them, which is beneficial to the growth of the children, 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, so it is not suitable to live with the children.
5. operational steps
step 1: Fix the evidence of the child's true will. Can be written by the child's opinion, a separate conversation with the judge, psychological counseling records and other ways to express.
Step 2: Prove that you are better suited to raise. Provide stable residence, proof of income, record of company time, explanation of educational philosophy, etc.
Step 3: Avoid denigrating the other person in front of the child. Improper guidance of children's words and deeds may be perceived by the court, but to their own disadvantage.
Step 4: Apply to the court to question the child alone. If necessary, you can apply to the court to ask the child's wishes in private.
Step 5: Prepare a plan to change custody. Even if the first instance judgment is unfavorable, if the subsequent situation changes, you can still apply for change.
6. Common Misunderstandings and Risk Tips
myth 1: Children can follow whoever they want. The wishes of children over the age of 8 should be respected, but it is not the only decisive factor. The court still takes the maximization of children's interests as the principle.
Myth 2: If you have money, you will definitely get custody. Economic ability is only one of the conditions for raising, emotional companionship, educational ability, and stability of the living environment are equally important.
Myth 3: The court will not listen to the child's words. The law stipulates that the true will of those who have reached the age of 8 should be respected, and the court will listen carefully and record it.
Risk Warning: Avoid guiding or coercing children to express specific wishes. If one party has domestic violence, gambling, drug abuse and other situations that are not conducive to the growth of the child, even if the child expresses his willingness to live with him, the court may not accept it. After the custody judgment, if there is a major change in the situation, you can sue for a change in custody.
7. FAQ: High-frequency custody issues
question 1: Will the court listen to the child when the child is over 8 years old?
The law stipulates that the court shall respect the true will of the children who have reached the age of 8. However, if the child's will is obviously coerced, induced, or obviously inconsistent with its own interests, the court may not adopt it or use it as a reference only.
Question 2: Can you get custody if you have good economic conditions?
Not necessarily. Economic ability is only one of the conditions for raising children. The court pays more attention to the stability of the child's long-term living environment, the emotional connection with the main caregiver, the parents' educational philosophy and the physical and mental health.
Question 3: What if the other person speaks ill of me in front of the children?
You can explain the situation to the court and provide relevant evidence. The court will comprehensively judge whether it is affected by one party when hearing the child's wishes. It is recommended to avoid denigrating the other party in front of the child, so as not to be perceived by the court to be detrimental to oneself.
Question 4: The custody of the first instance judgment belongs to the other party. Can it be changed?
You can. If there is a major change in the situation, such as the other party's loss of support ability, serious illness, adverse to the child, etc., it can sue for change of custody. It is recommended that the relevant evidence be retained after the first judgement.
8. epilogue
for the custody of children over 8 years old, the court should respect the true wishes of the children, but it is not the only decisive factor. Economic ability, companionship time, educational philosophy, stability of the living environment, etc. are all within the scope of the court's consideration. It is suggested that the parties concerned should fix the evidence of their children's willingness and prove their own advantages in fighting for custody, so as to avoid improper guidance in front of the children. If the first instance judgment is unfavorable, subsequent changes in the situation can still apply for change.
Practical Experience of 9. Lawyers
when the child is just over eight years old and the parents want to fight for custody, the first reaction of many people is that the child will follow whoever he says. The age of eight is indeed an important legal boundary. The court should respect the true wishes of the child, but respect does not mean obedience. The child's words are an important factor, not the only standard. In the end, it is still necessary to return to the main line that is most beneficial to the child. Therefore, don't put all your energy on letting the children express their opinions. First, set the basic facts such as stable living conditions, accompanying time and connection between education and medical care that both sides can provide to the children.
Operationally, let the child's will be presented in a relatively neutral and credible way. The version guided by parents in private and rehearsed repeatedly can easily be seen to have traces of intervention and reduce credibility. It is more appropriate to take the initiative to apply to the court for the contractor to ask the child separately, or to understand the real thoughts through family investigation, psychological counseling and other procedures. At the same time, we should carefully fix the evidence of our long-term actual upbringing, such as daily transportation, medical escort, parents' meeting and expense records, and use life facts to support our children to follow me more stably, so that wishes and conditions can confirm each other.
At the negotiation level, if one's own economic conditions are slightly weaker but the company is more sufficient, one can make an issue of the child's existing living and learning environment and put forward a plan to maintain the status quo and make clear visits, which is often more acceptable than competing in court. However, we should keep a bottom line and do not force children by coaxing, pressuring or letting them choose sides. Once they are found to be deliberately manipulated, they may not only affect the custody right this time, but also affect the evaluation of future visits and changes in custody. It is much safer to prepare the conditions, evidence and communication posture than to bet on a child's word.