Insights

Can Ningbo grandparents ask to visit their grandchildren

Ningbo Author：LuXu WANG

After the son's divorce, the child followed the woman, the old man did not see his grandchildren for half a year, can he go to court to sue for a visit? This question appears more and more in the family counseling in Ningbo, but the answer is not as straightforward as "can" or "can't. The current law has adopted a clear enumeration method on the subject of visitation rights, and judicial practice has opened a very narrow gap in individual cases. The gap between the two is precisely the difficulty of this type of dispute.

The scope of the legal subject of 1. visitation rights.

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 for exercising the right to visit shall be agreed upon by the parties. If the agreement fails, the people's court shall make a judgment. From the perspective of the provisions, the subject of visitation rights is limited to "parents who do not directly raise their children", and grandparents and grandparents are not included in the scope of the list.

1. Why is the subject strictly limited

the right of visitation is an extension of parental power, and its legitimacy comes from the direct relationship between parents and children. If the scope of the subject is expanded indefinitely, the life of the direct caregiver will be cut by multiple visitation requests, and the stability of the life of minor children will also be affected. Therefore, at the basic level of the right of claim, grandparents directly sue for "visitation rights dispute", and the first threshold they face is subject eligibility.

2. Indirect paths that the elderly can take.

More commonly, visiting rights are exercised by one's own children (I. e. the child's father or mother) and the visitation programme includes the possibility of being accompanied or picked up by grandparents. This path does not change the main body, but is arranged in a specific way, and the acceptance in practice is significantly higher.

Referee Divergence and Common Breakthrough of 2. Intergenerational Visits

although the law does not directly empower them, local courts still have decisions in support of intergenerational visits under certain circumstances, and their reasoning is usually based on public order and good customs, the principle of the most favorable to minors and the established facts of upbringing, rather than directly applying the visitation clause.

1. Three types of situations in which support is easier to obtain

in the first category, the father or mother has died, and the elderly are the only close relatives who maintain blood and emotional ties with their grandchildren. In the second category, grandchildren have been raised by grandparents and grandparents for a long time since childhood, and both sides have formed a stable parent-child emotional dependence. In the third category, the elderly have done more support obligations to their grandchildren, and visiting will not affect the normal study and life of minors. The common point of the three types of situations is that the request is based on the existing fact of support and the interests of minors, rather than pure blood identity.

2. Situations where support is more difficult to obtain

requests are usually difficult to support when both parents are alive and able to exercise visitation rights normally, the elderly have never actually participated in the upbringing, family conflicts are intense and visitation significantly exacerbates the conflict. The core of the court's measurement is always the physical and mental health of minors, rather than emotional appeals among adults.

3. the Path of Request Based on the Fact of Raising

it is often not the legal point of view that determines success or failure, but the density of evidence that nurture the facts.

Six types of evidence that need to be fixed

proof of long-term co-residence (residence certificate, statement issued by property or community); Expenditure vouchers for daily care (bills for childcare, medical treatment and education expenses); Information and contact records of pick-up and drop-off persons registered in schools or kindergartens; Accompanying persons recorded in medical records; Life photos and images of continuous time span; If the child is over eight years old, the expression record of his true will. The evidence needs to be able to spell out a continuous timeline, and the fragmentary fragments are limited in their persuasive power. In Ningbo, you can also apply for the court to entrust family investigators to investigate and visit the custody facts-according to the white paper on family trial of Ninghai court (China Ningbo net 2023-06-03), family investigators of Ningbo court will issue 466 investigation reports from 2020 to 2022, which can be used as auxiliary materials to prove the long-term actual custody facts.

How to write the 4. visitation plan before it can be implemented

whether the subject is accompanied by parents or the elderly, the more detailed the plan is written, the less resistance to subsequent implementation. Leaving "separate consultation" in the document is tantamount to pushing the contradiction to the future as it is.

1. Four must-write elements

frequency and duration (e. g. twice a month, each time not exceeding one day); Time, place and method of handover (including those responsible for transportation); Special arrangements for winter and summer vacations and legal holidays (which can be rotated on a single and double year basis); Notification period and alternatives for temporary changes. If the elderly are involved, the identity of the accompanying person and the authority to pick up and drop off shall be clearly defined in the terms, so as to avoid new disputes arising from "the person who came is not himself" during the execution.

2. On the boundaries of enforcement

the object of the right of visitation is the act of assisting the obligor, not the minor himself. The court will not take compulsory measures against the person of the children. The main measures that can be taken are to persuade, educate and admonish the party who refuses to assist. If the circumstances are serious, measures such as fines and detention can be taken in accordance with the law. Understanding this helps to form a reasonable expectation of the effect of implementation.

Statutory circumstances of 5. suspension and resumption of visits

the third paragraph of Article 1086 of the Civil Code stipulates that if a father or mother visits a child, which is not conducive to the physical and mental health of the child, the people's court shall suspend the visit according to law; after the reason for the suspension disappears, the visit shall be resumed. Common reasons for discontinuation include serious infectious diseases, violent or abusive behaviour, abetting the child to commit a bad act, and using the visit to hide the child. Suspension is a temporary state rather than a final deprivation, and the other party may apply for restoration after the cause has disappeared.

6. case proof

in practice, if one of the children dies and the grandchildren are actually raised by the grandparents for a long time from childhood, the court usually supports intergenerational visits as appropriate after comprehensively considering the fact of raising, the degree of emotional dependence and the stability of the minor's life, and controls the frequency between one and two times a month, between one hour and one day each time. The handover place is usually chosen in a public place near the residence of the direct dependant. On the contrary, if both parents can exercise the right of visitation normally and the elderly do not actually participate in the upbringing, the request is generally not supported.

In practice, the decision of a visitation dispute usually states the specific time, place and handover method of the visit, such as weekly or biweekly, pick-up from one party to the other party's residence at the agreed time, and annual rotation during winter and summer vacations and major legal holidays. For the party who refuses to assist in visiting, the court usually persuades, educates and admonishes first; if the party still fails to perform and the circumstances are serious, compulsory measures such as fines and detention may be taken in accordance with the law, but no compulsory measures shall be taken against the minors themselves.

7. Risk Alert

  • directly to the right of visitation dispute case: grandparents, grandparents do not belong to the subject of legal visitation rights, the path of prosecution there is a risk of rejection of the subject is not qualified.
  • Lack of continuous evidence of the fact of support: only photos and testimony of relatives and friends, lack of expenditure vouchers and transportation records, it is difficult to support the determination of long-term actual support.
  • The plan is written "to be negotiated separately": the terms are too broad to be implemented, and the follow-up case still needs to be resolved separately, with a double overlap of time and emotional costs.
  • Expressing hostility to the dependent in front of the child: it is easy to be regarded as detrimental to the physical and mental health of the minor, but triggers the reason for suspending the visit.
  • Confusing suspension and deprivation: suspension of visit is a temporary state, and you can apply for recovery after the cause disappears. Abandoning follow-up is equivalent to giving up your right.

8. FAQ

can grandparents sue alone for visiting their grandchildren?

The law does not list grandparents and grandparents as the subject of visitation rights, and there is a risk that the subject is not qualified for direct prosecution. However, in certain circumstances such as the death of the father or mother and the long-term actual support of grandchildren by the elderly, some courts support it at their discretion on the basis of public order and good customs and the principle of the most favorable to minors. A more secure path is for their children to exercise their right of visitation and to specify in the plan that they will be accompanied by the elderly.

How old is the child when the court will hear his own opinion?

If a child has reached the age of eight, his true will shall be respected in handling matters related to him. In practice, judges are usually asked in a relatively independent environment without a guardian, and combined with age, stability of expression and whether they are influenced by external influences, and will is an important reference factor rather than the only determinant.

Can the other party's refusal to cooperate with the visit be enforced?

Application may be made for enforcement, but the object of enforcement is the act of assisting the obligor, not against minors. The court generally persuades, educates and admonishes first; if it still refuses to perform and the circumstances are serious, it may take measures such as fines and detention in accordance with the law. If it does not cooperate for a long time, the other party may also claim to change the dependency relationship accordingly.

Can the visit be resumed after it is suspended?

You can. Suspension is a temporary measure and should be resumed after the cause has disappeared. Common reasons for suspension include serious infectious diseases, violent or abusive behaviour, abetting the child to commit a bad behaviour, hiding the child through a visit, etc. After the cause disappears, an application may be made to the court to resume visits and to redefine the specific programme.

Practical Experience of 9. Lawyers

grandparents want to visit their grandchildren, usually not in the name of "visitation rights. The current rules limit the legal subject of visitation rights to the father or mother who does not directly raise the children, and the grandparents are not within the scope of the list, and the basis of the right of claim will be relatively weak. Therefore, in case of such needs, don't rush to file a case first, but judge whether there is a more suitable path in reality, such as through the negotiation of the direct caregiver of the child, or relying on the fact that he has been involved in raising for a long time to claim that the right path is chosen, and things will be easy to handle.

Operationally, it is most feasible to focus on "raising facts" and "children's interests. If grandparents have actually taken care of their grandchildren for a long time and have formed a stable emotional and care relationship with their children, they can request visits on this basis and organize the materials around long-term care, living together, economic and daily payment, and children's adaptability. Before the lawsuit, try to communicate with the direct dependents first, and be able to negotiate a specific visit arrangement, which is often more worry-free and more beneficial to the children than fighting a lawsuit with unpredictable outcome.

It makes sense to write a plan that is executable. The time, place, frequency of visits, transportation methods, rotation of holidays and holidays, and adjustment of children's illness or examinations should be written as specific as possible, with less wrangling as possible. If the other party obstructs it for various reasons, it can communicate from the perspective of damage to the interests of the children and is not conducive to the growth of minors, or seek third-party coordination such as neighborhood committees and schools. The whole process should put the child's stability and feelings in front, which is not only the legal position, but also the key to impress the other party.