Insights

Ningbo divorce visitation rights enforcement how to do.

Ningbo Author：LuXu WANG

The divorce verdict states that one party can visit the child twice a month, but when it is implemented, the other party can make the visit fail if the child is not at home. Enforcement of visitation rights is one of the most common enforcement difficulties in family cases. Unlike monetary debts, which can be deducted directly, the object of execution is human assistance, and coercive measures cannot be taken directly against children. How to apply, what the court can do, and whether there are any alternatives need to be understood in advance.

The Legal Basis for the Enforcement of 1. Visiting Rights

article 10286 of the Civil Code stipulates that the father or mother who does not directly raise a child after divorce has the right to visit the child, and the other party has the obligation to assist. The legal basis for the enforcement of visitation rights is the specific agreement on visitation in the effective divorce judgment, mediation or divorce agreement. The right of visitation is not an optional accompanying right, but a continuation of parental authority over their children.

1. The object of execution is the obligation to assist.

The subject of enforcement of visitation rights is the assistance of the direct dependant, not the person of the minor. The court cannot force the child to be brought before the visit, but it can force the direct dependant to perform the obligations of assistance, cooperation and handover. Understanding this helps to form a reasonable expectation of the effect of implementation.

2. Visiting programmes must be specific and executable

the more specific the visiting time, place, frequency and handover method are written in the judgment, the easier the implementation will be. If only visitation rights are stated in the judgment to be negotiated separately, the execution may be deemed to be unclear when filing a case, and specific plans need to be determined through supplementary agreements or separate litigation.

Conditions for 2. application for enforcement of visitation rights

to apply for the enforcement of visitation rights, several basic conditions need to be met: there are effective legal documents, the content of visitation rights in the documents is specific, the direct dependant refuses to cooperate without justifiable reasons, and the application is submitted within the time limit for enforcement.

1. Requirements for legal instruments in force

the agreement on visitation in the divorce agreement for divorce by agreement usually needs to be confirmed by justice or converted into a judgment or mediation statement before it can be directly applied for enforcement. A simple divorce agreement is not enforceable, and when one party fails to perform, the other party needs to sue to confirm the visitation plan.

2. Execution time limit and application path

the period of application for execution shall be two years, calculated from the last day of the period of performance stipulated in the legal document. The right of visitation is a continuing right, and every obstruction of visitation can be regarded as a new breach of the obligation of performance, but in practice it is recommended to retain evidence of each non-cooperation to facilitate continuous claims.

Compulsory measures available to the 3. Court

when the direct dependant refuses to cooperate with the visit, the court can take a variety of measures to urge him to perform the obligation of assistance, but all measures are based on the premise that they will not harm the physical and mental health of the minor.

1. Persuasion, education and admonition

the court usually first persuades and admonishes the party that refuses to cooperate, informing it of its legal obligations and the consequences of refusing to comply. This is the most common and the first measure to be taken, with the aim of enabling compliance at a lower cost.

2. Fines and detention

for those who refuse to cooperate after repeated education and the circumstances are serious, the court may impose fines or detention measures on the party who refuses to perform the obligation of assistance. Fines and detentions are penalties for adults, not children, and can serve as a deterrent to a certain extent.

3. Included in the list of dishonest persons subject to enforcement

if the behavior of refusing to cooperate with the visit is found to be capable of performing and refuses to perform, the court can include it in the list of untrustworthy persons subject to enforcement and restrict travel, consumption, credit, etc. However, whether the implementation of visitation rights is included in the list of dishonesty is not completely consistent across the region.

Difficulties and Boundaries in the Enforcement of 4. Visiting Rights

the core difficulty lies in the particularity of the subject matter of the enforcement: it is not money or goods, but an act that requires the cooperation of both parties.

1. Handling when a child resists a visit

if the child clearly resists visiting due to age, psychology, inducement and other reasons, the court cannot force the child to be taken away. At this time, the court will usually review whether the direct supporting party has instigated or obstructed behavior, and if necessary, impose penalties on adults, or adjust the visiting program to a more flexible and gradual approach.

2. Visiting places and handover methods

during the execution process, the court can coordinate between the two parties to determine the places of visit, such as public places, community centers, school gates, etc., and determine the person responsible for the handover. Some courts also introduce third parties to help oversee the visitation process. Yuyao, Ninghai and other courts in Ningbo have implemented the family investigator mechanism, which can apply for the court to entrust family investigators to visit and understand the children's wishes and upbringing status, and assist in determining the visiting plan and handover arrangement.

The association between 5. suspension of visitation and change of support.

The right of visitation and the right of custody are two related but independent rights. Obstructed visitation does not of course lead to a change of custody, but long-term, malicious obstruction of visitation may be an important reason for changing the dependency relationship.

1. Statutory reasons for the suspension of visitation rights

the third paragraph of Article 1086 of the Civil Code stipulates that if a father's or mother's visit to a child is not conducive to the physical and mental health of the child, the court shall suspend the visit in accordance with the law. Common causes include violent tendencies, infectious diseases, alcohol and drug abuse, abetting children's bad behavior, hiding children through visits, etc. After the reason for the suspension disappears, the visit shall be resumed.

2. Prolonged obstruction may claim a change in dependency

if the direct support party maliciously obstructs the visit for a long time, and the behavior is obviously not conducive to the physical and mental health of the children and the maintenance of parent-child relationship, the visiting party may file a lawsuit to change the support relationship, requesting that the children be directly raised by themselves. However, this requires evidence of long-term, continuous and serious obstruction of visits.

6. case proof

in practice, the judgment clearly states that the visiting time is the second and fourth weekends of each month, and the visiting party will pick up and drop off at the agreed place. The direct dependant has repeatedly refused to cooperate on the grounds that the child is out or unwell. After the visiting party applies for compulsory execution, the court admonishes the direct dependant and orders it to cooperate. If it still refuses to perform, a fine shall be taken according to law, and the follow-up visits can be resumed. 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.

In practice, one party prevents the other party from visiting their children for a long time, and is found to have instigated the child to be hostile to the other party, the court considers that the act is not conducive to the physical and mental health of the child, the visiting party sues to change the custody relationship, the court decides to support the change, the children are brought up directly by the visiting party, and the visiting arrangements are re-defined. 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.

7. Risk Alert

  • the visitation plan is too general: the judgment only includes consultation visitation or other agreement, and the timing of implementation is not clear, making it difficult to file a case.
  • There is only an oral agreement without documents: the visiting arrangement for an agreed divorce is not written into the judgment or mediation document and cannot be directly applied for enforcement.
  • Violent or threatening visits: Conflicts or threats during visits may be considered detrimental to the child's physical and mental health and trigger the suspension of visits.
  • Ignoring the true will of the child: if the child is over eight years old and clearly resists visiting, the court may adjust the plan rather than enforce it.
  • Only implementation does not advocate change: long-term obstruction but not timely prosecution change dependency relationship, may miss the best opportunity.

8. FAQ

the judgment has written the right of visitation. What if the other party does not cooperate?

You can apply to the court for enforcement. The object of execution is the other party's obligation to assist. The court will first persuade, educate and admonish. If the circumstances are serious, fines and detention may be imposed. However, coercive measures cannot be taken directly against the child.

Can the right of visitation stipulated in the divorce agreement be enforced?

No direct application for enforcement. You need to go to court to file a lawsuit, request confirmation of the visit plan and obtain a judgment or mediation statement before you can apply for enforcement.

What if the other party hides the child from seeing him?

You can call the police and apply to the court for enforcement. If the other party hides the children by visiting for a long time, if the circumstances are serious, it may constitute a legal cause for suspending the visit or changing the dependency relationship.

If the child does not want to see me, can it be enforced?

If the child has reached the age of eight and clearly resists visitation, the court will usually not force the child to be taken away, but will examine whether there are instigated, obstructed, etc., and if necessary, adjust the visitation plan or impose penalties on adults.

Practical Experience of 9. Lawyers

the verdict states that the child can be visited twice a month, but the other party's sentence "the child is not at home" makes the visit fail. This is one of the most common problems in the execution of housework. First of all, one key point should be made clear: the object of the enforcement of visitation right is the assistance, cooperation and handover obligations of the direct dependant, not the child's person-the court cannot force the child to be brought to you, but it can force the other party to perform the assistance. It should also be understood that a simple divorce agreement cannot be directly applied for enforcement. It must be confirmed by judicial confirmation or litigation into a judgment or mediation agreement before it has enforcement power.

If you want the implementation to be pushed forward, the premise is that the visiting plan is specifically executable: the time, place, frequency and handover method are as detailed as possible. If only "visiting rights shall be negotiated separately" is written, the execution of the case may be stuck due to unclear targets, and a supplementary agreement or separate litigation shall be used to determine the plan. There is a time limit for applying for execution. Every time the other party does not cooperate, it can be regarded as a new violation of performance. However, it is suggested that evidence-communication records, attendance certificates, rejected entrance guards or witnesses-should be saved into a timeline, which is much more powerful than scattered claims.

Relief is not just hard execution. If the other party refuses to cooperate, the court may take admonitions, fines and other measures to urge it to perform. If the circumstances are serious, it may also be linked to the change of the dependency relationship. If the other party shirks it on the grounds that "the child does not want to see it himself", it may also examine whether it is true and, if necessary, bring a lawsuit to change the dependency relationship. When negotiating, we should seize the other party's concerns-fear of punishment and loss of custody, in exchange for a stable handover arrangement. At the same time, we should avoid dragging the relationship between ourselves and our children into confrontation. We should exercise restraint and leave traces for evidence in the implementation process, which is often more stable to see our children for a long time than blindly exerting pressure.