Insights

Is it useful to apply for the enforcement of visitation rights in Ningbo?

Ningbo Author：LuXu WANG

After the visitation right was awarded, the other party just wouldn't let the child see me. Is it useful to apply for enforcement? The enforcement of visitation right is really embarrassing-you can't "enforce" the child by force, but there are coercive means for the obstructing party.

The characteristics of the enforcement of 1. visitation rights

the enforcement of visitation rights disputes is aimed at guaranteeing the right of non-dependants to live with their children, rather than treating their children as enforceable property. This makes it different from the general monetary payment execution, more emphasis on performance and cooperation.

The execution is behavior, not people.

The court enforces the obligation of the other party to "assist in visiting" rather than forcibly deliver the child's body. It is neither feasible nor against the interests of minors to take coercive measures directly against children.

2. cannot directly enforce children

the law clearly states that for those who refuse to perform the relevant judgment of visiting, compulsory measures such as detention and fine may be taken against the person subject to execution, but the person of the child shall not be enforced. This is the bottom line of protecting the physical and mental health of minors.

Children's wishes should be treated with caution.

When older children do not want to visit, the court will not simply enforce it, but will understand the reasons behind it. If it is improperly influenced by one party, the court will provide guidance, but the interests of the children are still at the core.

3. coercive measures against obstructing parties

for those who obstruct the visit for a long time without reason, the court may admonish, fine or even judicial detention; if the circumstances are serious, it may also involve the claim of changing the custody relationship. The measures are directed at the obstruction itself.

1. Fine detention is a means but not an end

coercive measures are intended to promote cooperation, not to punish. In most cases, normal visitation can be restored through a clear visitation programme and moderate pressure.

2. The practical application of fines and detention.

For those who refuse to assist the direct dependents, the court may take measures such as fines and detention. In practice, a notice of performance is usually issued first, and then a fine decision is made according to the circumstances. The amount of individual fines is generally in the range of 1000 yuan to 100000 yuan, and most cases fall into several thousand yuan. Those who still refuse to perform after a fine and the circumstances are serious may be detained for less than 15 days. These are means of urging, always aimed at restoring visitation order.

4. first clarify the specific visit plan

if you apply for enforcement, it is best to write down the time, place and handover method of the visit in detail in the judgment document or agreement. The more specific the plan, the more grasping the implementation, reducing the "separate consultation" type of idle.

Before the judgment, the plan should be discussed in detail.

Many of the enforcement dilemmas are rooted in the trial phase. In the trial, the two sides often focus on whether they can visit, ignoring how to visit. It is suggested that the frequency, duration, handover method and holiday arrangement should be negotiated and written into the document before the judgment or mediation agreement is formed. The more detailed the plan, the more evidence the court can rely on when applying for enforcement, and the less likely it is to be delayed by the other party for various reasons. In Ningbo, divorce and other family cases usually enter pre-litigation mediation first. The mediation stage is the window period for discussing the visiting plan in detail and writing it into documents.

What granularity is written in the 5. visitation plan to implement

at least five enforceable visiting terms should be clearly written: frequency and specific date rules, such as the first and third Saturdays of each month; Starting and ending time, accurate to a few minutes; The handover place, preferably a fixed place with monitoring; Pick-up and pick-up responsible persons; As well as special arrangements for summer and winter vacations and legal holidays, for example, winter and summer vacations each live together for not less than 15 days in a row and take turns during the Spring Festival.

It is also suggested to add two bottom-up clauses: one is to change the mechanism. If the mechanism needs to be adjusted due to legitimate reasons such as children's illness and examinations, how many hours in advance shall be notified and the supplement shall be arranged; The second is abnormal handling. If the assistance is refused for a certain number of times without proper reasons, it shall be regarded as a factor hindering the implementation and can be used as a consideration for changing the dependency relationship. These two can significantly reduce hindsight.

6. case proof

in practice, the direct dependant refused to visit the other party on schedule for 8 consecutive months without reason after the judgment came into effect. After two written reminders from the enforcement court, the court made a decision to fine 5000 yuan and ordered him to perform the obligation of assistance twice a month according to the plan determined by the judgment. After that, the visit returned to normal.

In practice, the original judgment visit clause only stated that the other party could visit at any time. Due to the lack of specific time, place and handover method, the execution stage was unable to start. After the execution and reconciliation, the two parties were supplemented by the handover from 9: 00 a.m. to 18: 00 a.m. on the first and third Saturdays of each month, and the handover was made at the designated community service point. The winter and summer vacations each continued to live together for not less than

15days. The implementation was steadily.

7. Risk Alert

  • the visitation clause in the judgment is too general and there is no hand for implementation.
  • Mistaking the idea that you can force the child to "execute" over.
  • The other party repeatedly obstructed but did not apply for compulsory in time.
  • The child as a bargaining chip, against the disadvantage of raising.
  • Ignoring the child's true will.

8. FAQ

can the enforcement of visitation rights forcibly pick up the child?

Can't. Only the other party can be forced to perform the act of assistance, and shall not be enforced against the person of the child.

What if the other party has not been allowed to see?

May apply for enforcement, the court may admonish, fine, detain the obstructing party, urge its cooperation.

Is it enough for the judgment to only write about visiting at any time?

Not enough. The more specific the plan (time and place handover), the more conducive it is to implementation and avoid idling.

Can children be forced if they don't want to go?

It will not be simply enforced, the court will understand the reasons and deal with the interests of the children as the core.

The other party has not allowed to see the children all the time. Is a fine useful?

There is a clear role in urging. In practice, the proportion of cooperation restored after fines is not low. Individual fines are mostly in the thousands of yuan. If the circumstances are serious, they can be detained for less than 15 days. At the same time, long-term obstruction of visits without reason will also become an important reason for advocating a change in the relationship of support in the future.

The judgment only says that you can visit at any time. What if you can't enforce it now?

You can apply to the court to clarify the manner and time of the visit, or reach an enforcement settlement with the other party and write the plan. It is suggested to directly write down the contents of 2 times a month, each specific time period, handover place, 15 consecutive days of summer and winter vacations, etc. Only after the plan is clear can the implementation be implemented.

Practical Experience of 9. Lawyers

the enforcement of visitation rights is really embarrassing-children cannot be "enforced" by force, but there are coercive means for obstructing parties, so the conclusion is "useful, but the usage is different". The goal of implementation is to protect the right of the indirect caregiver to get along with the child, and to implement the other party's obligation to "assist in visiting", rather than forcing the child's body to be delivered. Only by understanding this can we not have wrong expectations for implementation, and only then can we know where to use our strength and avoid plunging into the direction that is doomed to fail.

Operationally, let the visitation plan "executable" first ". The more specific the time, place, frequency and transportation method of visits in the judgment or mediation, the better. It is difficult for too general a plan to land in the implementation stage. If the other party obstructs for a long time without reason, it may apply for court admonition, fine or even judicial detention; if the circumstances are serious, it may also affect the change of the custody relationship and the disposal of property. However, it should be noted that the children's own wishes should be treated with caution. When older children do not want to visit, the court will generally understand the reasons and do counseling first, rather than simply force them.

Strategically, don't take execution as the only way out. First try to negotiate and invite third-party coordination such as schools or neighborhood committees. In many cases, one face-to-face communication is more effective than repeated applications. If the other party uses the child as a bargaining chip for a long-term confrontation, it is necessary to systematically leave a certificate-the time of each agreement and breach of contract, the communication record, and the traces of transportation and transportation. These are not only the basis for applying for execution, but also the materials for claiming to change the custody relationship in the future. Always put the stability and feelings of the child in front, which is both the legal position and the angle that can most impress the other party and the court.