Four Conditions for Change of Right of Maintenance? Key Points of Prosecution in Ningbo

The day the verdict came into effect, I thought it was over, but a few years later I found that the child's living conditions were not what they had imagined. The direct parenting relationship is not a final word. The law leaves a channel for changes in the situation, but this channel has a clear threshold. Calling "I love children more" as a reason is almost impossible to promote change.

Four types of situations in which 1. change direct dependency relationships

article 1084 of the Civil Code establishes the basic position of the principle of being in the best interest of minor children. The (I) of the Supreme People's Court on the Interpretation of the Marriage and Family Section of the the People's Republic of China Civil Code further lists the specific circumstances in which a change in the direct dependency relationship can be requested, and the review in practice basically revolves around these items.

The first two categories: problems with the ability to raise and the behavior of raising

the first category is the party living with the child who is unable to continue to raise the child due to a serious illness or disability. The focus of proof is on the causal relationship between illness or disability and the ability to support it, and the statement that only the diagnosis is proved and the ability to care is limited is limited. The second category is that the party living with the child does not fulfill the obligation of raising or maltreats the child, or that living with the child has a negative impact on the physical and mental health of the child. Long-term neglect of children by others, poor living conditions and domestic violence may all fall into this category.

The latter two categories: children's wishes and other legitimate reasons

the third category is children who have reached the age of eight, who are willing to live with the other party and who have the ability to support them. Note that this item contains two elements. If only the children's will and the requesting party lacks the ability to support them, they will also not receive support. The fourth category is that there are other legitimate reasons for the need to change, which belongs to the bottom-up clause, and common scenarios include the long-term exit or sentence of the dependant, significant changes in the family structure leading to a significant decline in the conditions of care, and a serious disconnect between the children's schooling and the actual place of residence.

Difference between change of 2. agreement and change of judgment

not all changes require a lawsuit, and path selection can significantly affect time costs.

The two sides agreed to deal

if the parents agree to change the direct child support relationship, the people's court shall support it. When consensus is reached, it is recommended to sign a written change agreement, stating the changed direct dependents, the amount and payment method of alimony, the time of visit and the handover arrangement, and handle the corresponding change of household registration and student status. If there is only an oral agreement but no written and actual handover is implemented, the evidence will be extremely passive when one party goes back on his word in the future.

Why is it recommended that the agreement be judicially confirmed or prosecuted separately?

A written agreement is binding between the parties but lacks enforceable force. If one party refuses to deliver the child, the other party still has to sue separately. If the pre-judgment of the other party's coordination is not high, you can directly file a change lawsuit on the basis of negotiation and apply for mediation to close the case. The court will issue a mediation statement, which not only fixes the agreement, but also obtains the basis for execution.

Jurisdiction, Case and Time Limit of 3. Prosecution

errors in judgment on procedural details often make the parties wait six months or even a year.

Cause of action and jurisdiction

the cause of action is usually a change of dependency dispute, which is an independent action and does not require a retrial or appeal of the divorce case. Jurisdiction generally applies the principle of jurisdiction of the people's court of the defendant's domicile; if the defendant's domicile is inconsistent with his habitual residence, the court of the habitual residence shall have jurisdiction. If the children live in different places with the defendant for a long time, the competent court is often in different places, so it is necessary to plan the travel and proof arrangement in advance.

Not limited to six months.

The decision does not allow divorce or the plaintiff to sue for divorce again after mediation, which requires an interval of six months. This restriction is for divorce lawsuits. The dispute over the change of dependency is the subject of another action and this restriction does not apply. However, it should be noted that if there is no substantial change in the situation and repeated prosecution in a short period of time, the court will reject it on the grounds of lack of reasons for the change, and the repeated litigation itself may be evaluated as an interference with the stability of the child's life.

How to adopt the wishes of 4. children over eight years old

the willingness of children is a very important factor, but the adoption method has strict procedural constraints, and improper operation is counterproductive.

Willing to hear the way

the court usually interrogates the children individually in an undisturbed environment, with the help of psychological counsellors or social care forces when necessary. The focus of the inquiry is not only "who you want to follow", but also the real state of life and study and the specific details of daily care. The judge is often able to judge from the consistency of the presentation and the richness of the details when accompanied by a party to the trip and repeated instructions in advance.

Reverse Consequences of Interfering with the Children's Will

instigating the child to belittle the other party, cutting off the other party's visiting ties, and exchanging material promises for statements, once verified, will be assessed as detrimental to the child's physical and mental health, but will instead become a factor detrimental to the requesting party. A stable growth environment and a good record of parent-child relationship maintenance are more convincing than a guided statement.

Three Main Lines of 5. Evidence Organization

the proof of this kind of case is not more than whose material, but whether it can form a complete contrast along the three main lines.

Article 1: There are statutory reasons for change in the current dependency.

Medical diagnosis and care ability assessment materials; Attendance, achievement and home-school communication records issued by the school; Photos and visit records of living environment; Alarm receipt, injury materials, community mediation records; Evidence of long-term care by grandparents or a third person. Together, these materials point to whether existing arrangements are already detrimental to children.

Article 2: The requesting party has better conditions for maintenance.

Stable income and proof of work; housing conditions and schooling resources; availability of daily care hours; physical health status; and the ability of family members to assist. It should be noted that income is not a decisive factor, and companionship time, care participation and the stability of the living environment tend to be more weighted.

Article 3: Changes in the best interests of the child

the expression of the children's wishes, the continuity of the existing life and learning, the need to transfer or move to residence after the change, and the emotional connection with the relatives of both parties. If the change will cause the child to leave the familiar school and social environment, the requesting party should explain the connection plan in advance, otherwise the stability factor will be the main reason for not changing.

Can 6. alimony be adjusted together?

After the change of the direct dependency relationship, the subject of the burden of the maintenance fee changes, and the relevant request can be made together in the same case.

Writing of a request together

the claim can be expressed as: to order the change of so-and-so to be directly raised by the plaintiff; to order the defendant to pay a monthly maintenance fee of several yuan from the date of the change until the child reaches the age of 18. The amount is generally determined by reference to 20% to 30% of the monthly total income of the party with fixed income, and the burden of more than two children can be appropriately increased but generally not more than 50%.

Processing of maintenance paid

maintenance payments already received by the original dependant prior to the change are generally not refunded; after the change, the original payer ceases to pay and is instead borne by the new indirect dependant. If the large amount of necessary expenses incurred by children due to medical treatment and schooling exceeds the original amount, they can claim to increase separately. This is a dispute over the change of alimony. The change of direct support relationship is two independent requests, which can be combined or put forward separately.

7. case proof

according to similar adjudication rules, if a child directly raised by one party after divorce is placed in the care of his or her grandparents for a long period of time, if the dependent party is away all the year round and rarely participates in the care, and if the other party sues for a change, the court usually examines whether the dependent party has actually fulfilled its duty of support and the impact of the existing arrangements on the child. Combined with the child has reached the age of eight and clearly expressed the willingness to live with the other party, the requesting party has stable living and care conditions, the majority support the change, and at the same time ordered the original supporter to pay monthly maintenance, the amount is usually in the range of 20% to 30% of his monthly income. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

According to the rules of the same kind of judgment, the court generally does not support the change if the other party's income is low and the living conditions are general. The decision repeatedly emphasizes that a stable growth environment itself is an important part of the children's interests, and that in the absence of a statutory change, the comparative advantage of economic conditions is not sufficient to overturn the existing arrangement. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

8. Risk Alert

• prosecution on emotional grounds: a request that does not fall into the legal situation is almost impossible to obtain support.
• Oral agreement does not fall to the ground: after negotiation and change, written documents are not signed, handover and student status change are not handled, and evidence is extremely passive in the future.
• Instigating children to declare their position: once verified, they will be evaluated as not conducive to their children's physical and mental health and will be deducted points.
• Ignoring stability factors: changes that require transfer or relocation but do not propose a convergence plan are often rejected on the grounds of affecting the stability of their children.
• Missed alimony request: only request to change the dependency relationship without claiming alimony together, need to sue separately, repeat time-consuming.
• Short-term repeated prosecution: if the situation does not change substantially, it will be filed again, which is not only rejected, but may also be evaluated as interfering with the children's lives.

9. FAQ

the child said that if he wanted to talk to me, could he change his custody?

Not necessarily. The will of the child who has reached the age of eight is an important factor, but it is also necessary for the requesting party to have the ability to support it, and to make a comprehensive judgment on whether there is a legal change in the current dependent party and the stability of the child's life.

Do I have to wait six months to change my dependency?

No need. The six-month interval is not subject to the restriction on the re-filing of a divorce lawsuit, and the change of dependency dispute is the subject of an independent lawsuit, but the request for no material change in circumstances is usually rejected.

The two sides have agreed on the change. Do you still need to go to court?

If the agreement is changed, the court shall support it. If you are worried about the other party's reneging or refusing to deliver the children, it is recommended to file a change lawsuit and apply for mediation to close the case, and the court will issue a mediation letter to obtain an enforceable basis.

What is the alimony after the change?

may be requested together in the same case. If there is a fixed income, it is generally determined by 20% to 30% of the total monthly income, and the burden of more than two children can be appropriately increased but usually not more than 50%; the part paid before the change is generally not returned.

Practical Experience of 10. Lawyers

the entry into force of the judgment does not mean that the dependency relationship will be finalized. The situation changed later. The law has left a channel, but this channel has a threshold. Reasons such as "I love children more" and "my conditions have improved" can hardly be changed. What really works is that there are situations that can show that the original direct caregiver is not suitable to continue to raise, or that the change is obviously more beneficial to the child. Therefore, first judge whether you have this kind of facts and basis in your hand, and then decide whether to start it or not. Don't hand over materials based on emotions.

The material should be organized around three main lines: whether the direct caregiver has problems affecting the ability to raise, whether there are obvious omissions in care, and whether the change is really more beneficial to the child. If the child has a certain age, his true will will be valued, so we should pay attention to how to make the child's ideas real and natural, rather than adults teaching. During the period of separation or temporary care, who is taking the children and where the children go to school are also marked, which is often used as the basis for judgment and can best explain the problem.

Changes and alimony adjustments are often linked together and can be considered together when talking, but don't use it as a means to punish each other. Usually, we try to negotiate changes first, and then we can't agree on them. The negotiation process itself is also a test of evidence and facts. It also reminds the parties who want to get their children back in the name of change: the court is looking at the interests of the children, not how many grievances you have suffered. If you put your efforts on this point, you will have a good chance of winning. It is difficult to impress the referee only by talking about your own grievances., Only by telling the truth can we count.

The promotion of such changes depends not on emotional expression, but on the accurate landing of the request on the legal situation and laying out the materials along three main lines: why the existing arrangements are no longer conducive to the children, why the requesting party can better provide appropriate care, and how the children's study and life can be smoothly connected after the change. Before filing a lawsuit, one should first judge whether to take the path of agreement or litigation, and try to obtain enforceable documents by mediation if one can negotiate. If litigation is really necessary, the alimony request shall be written into the complaint together to avoid filing a second case. Maintaining normal visitation and parent-child communication throughout the process without interfering with the independent expression of the child is not only responsible for the child, but also the most easily overlooked bonus in the case.