Who will raise the divorced children in Ningbo?

Adopted children and biological children have exactly the same legal status. When it comes to custody in a divorce, many people assume that matters involving adopted children are “easier to negotiate,” but in reality, the law affords adopted children full and unwavering protection of their rights. First, let's give a conclusion: under the adoption relationship established according to law, the rights and obligations between adoptive parents and adoptive children shall be governed by the provisions of the relationship between parents and children. the upbringing arrangement of adoptive children at the time of divorce shall be exactly the same as that of biological children-according to the principle of most favorable to minor children, the principle of following the mother shall be followed when they are less than two years old, and their wishes shall be respected when they are more than eight years old. What really needs to be clarified first is whether that adoption relationship was valid in the first place.

1. Legal status of adopted children: provisions and interpretation

Article 111 of the the People's Republic of China Civil Code stipulates: since the date of establishment of the adoptive relationship, the provisions of this Law on the relationship between parents and children shall apply to the relationship between adoptive parents and adopted children; the provisions of this Law on the relationship between children and their parents shall apply to the relationship between adopted children and their close relatives; the relationship between adopted children and their biological parents and other close relatives, eliminated by the establishment of an adoptive relationship.

Dismantle three meanings: firstly, adoption "establishes" the pseudo-consanguinity relationship, the obligations of the adoptive parents to raise, educate and protect their adopted children are the same as those of the biological parents, and the obligations and inheritance rights of the adopted children to the adoptive parents are also the same; secondly, adoption "cuts off" the legal bond with the biological parents at the same time, and the biological parents no longer have the obligation of custody, visitation and right of course; third, adopted children are completely equal to biological children in terms of upbringing, education, and inheritance. When divorce is assigned to direct custody, they will not be treated as if they are not biological, and the court will not use blood relationship as a tilt basis.

2. The first step is to verify whether the adoption relationship has been legally established.

Article 1,105 of the Civil Code stipulates that adoption shall be registered with the civil affairs department of the people’s government at or above the county level, and the adoptive relationship shall come into existence from the date of registration. The legal adoption process is as follows: meeting the adoption requirements (Article 1098, etc.) → both parties (including the biological parent) consent and enter into an agreement → application for registration with the civil affairs department → the adoption is established upon completion of registration. For the adoption of a minor whose biological parents cannot be identified, the civil affairs department must issue a public notice before registration.

The greatest risk in practice is “de facto adoption”: where individuals have lived together for a prolonged period, referred to each other as parent and child, and have actually assumed the responsibilities of upbringing, yet no adoption registration has ever been completed; such arrangements do not constitute a legally recognized adoption relationship, and no parental–child rights and obligations arise between the parties. In cases of divorce involving such children, neither “custody of the adopted child” nor “child support for the adopted child” applies; instead, the matter must be handled separately under doctrines such as temporary care, management without cause, or cohabitation. As a result, the child’s legal status, custody, and visitation rights all lack a clear legal basis, making dispute resolution far more complex than in cases of formal adoption. It should be noted that de facto adoption relationships established prior to the 1992 Adoption Law came into effect were, in judicial practice, conditionally recognized under the laws and policies then in force; however, “de facto adoptions” that were not registered after 1992 are generally no longer recognized as valid adoptions. If a guardianship has been in place for many years without formal registration, it should be promptly registered as required, or, prior to initiating legal proceedings, seek advice on whether other guardianship arrangements can be used to clarify the rights and obligations.

3. Rules for determining child custody upon divorce

Where the adoption relationship is legally valid and subsisting, the adoptive parents are the natural holders of custody rights. Divorce does not alter the adoption relationship itself; what the court must determine is which parent will have direct custody, how the other parent will pay child support, and how the latter will exercise visitation rights. The judgment standard is completely consistent with that of biological children. According to Article 1084 of the Civil Code, children under the age of two shall be directly raised by the mother (except for the mother's long-term incurable infectious diseases, the conditions for raising and the obligation to raise); If the parents have reached the age of two and fail to reach an agreement, the principle of most favorable to minor children shall be followed, the judgment is based on factors such as the age of the children, the ability and conditions of both parties to raise them, the stability of the existing living environment, the actual commitment of daily care, and the assistance of grandparents in care; those who have reached the age of eight should respect their true wishes, and the court usually listens to opinions in a neutral and unpressured scenario.

Economic conditions are only one aspect of the ability to provide for a child. Residential stability, caregiving time, educational philosophy, and the presence or absence of domestic violence and harmful habits collectively shape the court’s assessment: the party who has provided long-term, hands-on care in a stable environment generally prevails over the party with higher income but who has been largely absent. Where an adopted child has reached the age of eight, the rules regarding the consultation of the child’s wishes shall apply without exception and shall not be waived on the basis of the child’s adoptive status.

4. Can biological parents intervene? Generally, no.

Once a lawful adoption has been established, the rights and obligations between the adopted child and the biological parents are terminated by law, and the biological parents are no longer proper parties in disputes over custody. In custody disputes arising from divorce, courts generally do not uphold claims by biological parents to custody or visitation rights on the basis of blood relationship—since one of the purposes of adoption is to establish a stable family identity for the adopted child, such claims based on kinship have no legal standing in the face of a valid adoption.

There are only two exceptional channels: one is that after the adoption relationship is dissolved according to law, the rights and obligations with the biological parents are restored (adult adopted children can negotiate whether to restore or not, see Article 1117 of the Civil Code), and the biological parents can become the subject of rights and obligations again; the other is that the adoption relationship is confirmed to be invalid (Article 1113 of the Civil Code: if the adoption is invalid due to the circumstances stipulated in articles 148 to 151 of the civil code or violation of the adoption conditions). If the biological parents allege that the adoption registration involves false documentation or violates statutory requirements, such claims should be pursued through an action to declare the adoption invalid or to rescind it, rather than by directly seeking custody in a divorce proceeding.

5. Special rules for terminating adoption

Divorce does not automatically dissolve the adoptive relationship-the dissolution of the adoptive relationship must follow another legal procedure: when the adopted child is a minor, the adopter and the adopter must agree to dissolve the adopter, or there are legal matters such as abuse and abandonment, which shall be sued by one party; when the adopted child reaches adulthood, if the relationship between the adoptive parents and the adult adopted child deteriorates and cannot live together, the agreement or appeal to dissolve (Article 115), the cancellation must be registered with the civil affairs department (article 1,116). Upon termination, the rights and obligations between the adopted child and the adoptive parents are extinguished, and the relationship with the biological parents is restored; however, an adult adopted child who has been raised by the adoptive parents shall still provide living expenses to adoptive parents who lack both the capacity to work and a source of livelihood—although the legally constructed kinship is severed, the obligation to provide support remains (Article 1,118).

6. Demonstration Example (Example, Fictional)

Example 1: When the adoptive parents are divorced, the court, in accordance with the principle of being most beneficial to the minor children, sentenced the 10-year-old adopted children to the party with better living and care conditions and deeper emotional connection with the children. The other party pays a monthly maintenance fee of 1800 yuan and visits regularly, which is exactly the same standard as that of the biological children.

Example 2: Biological parents, on the ground of blood relationship, sought to intervene in the upbringing of an adopted child whose adoption had been duly registered; however, their claim was not upheld, as lawful adoption has terminated the rights and obligations between them and the adopted child.

Example 3: Both parties have raised a child together for about 7 years, but they have never gone through the adoption registration. When the court determines that the adoption relationship is not established, and both parties do not have the rights and obligations of parents and children. Relevant raising disputes are handled separately according to the temporary care relationship. Only the qualitative link takes about 5 months-the cost of unregistered is often revealed when the dispute breaks out.

7. The boundaries between adopted children, stepchildren, and de facto adoptions must be clearly defined.

In divorce and child custody disputes, three types of “non-biological” relationships are often conflated, but the legal rules governing them are actually different. First, for adopted children who have been legally registered: the provisions governing parent–child relationships apply, and they are governed by the rules set forth earlier in this document, thereby enjoying the most comprehensive rights and obligations. Second, stepchildren: the relationship of rights and obligations between stepparents and stepchildren under their upbringing and education is governed by the provisions of the Civil Code on the relationship between parents and children (Article 1072 of the Civil Code), but the relationship between stepparents and children originates from marriage and living together, and does not need and cannot be established through "adoption registration"-whether stepparents still have the obligation to support their stepchildren after the divorce of adoptive parents, depending on whether the post-divorce support relationship continues and whether there is a long-term and stable support fact, the practical relay parent usually does not bear the natural post-divorce support obligation, which is essentially different from the adoption of children, and should not treat stepchildren equally as adoption children. Third, unregistered de facto adoption: Such arrangements do not constitute a legally recognized adoptive relationship; they neither give rise to the rights and obligations between adoptive parents and children, nor do they benefit from the explicit provisions of Article 1072 of the Civil Code applicable to stepchildren. Consequently, they must be addressed through alternative arrangements such as guardianship or entrusted care. The divorce proceedings differ significantly depending on the three types of marital status. Before filing a lawsuit, it is crucial to verify the adoption registration certificate, the date of remarriage, and the duration of cohabitation, and to clearly determine the legal status—this is more important than rushing to contest child custody.

8. Reverse reminder regarding the maintenance and inheritance of adoptive children toward their adoptive parents.

The rights and obligations of adoption are two-way, and there is a set of reverse arrangements in addition to the divorce scenario that are worth reminding: First, maintenance obligations-adopted children have the same maintenance obligations to their adoptive parents as their biological children, and they are not exempted due to the divorce or remarriage of the adoptive parents; if the adoptive parents live separately after divorce, the adopted children should perform the maintenance obligations separately, and the maintenance agreement cannot exempt from the legal maintenance responsibilities. Second, inheritance qualification-adopted children are the legal first-order heirs of adoptive parents, and remarriage of adoptive parents does not affect the inheritance rights of adopted children; However, if the adoptive parents make another will to leave the property to the new spouse or others after remarriage, the will will will take precedence, and the adopted children can only claim the necessary share of the estate (lack of labor ability and no source of income). Third, the stability of the proposed blood relationship-divorce and remarriage will not automatically dissolve the adoption relationship, and dissolution must be handled separately in accordance with Article 1115 of the Civil Code. Some remarried families verbally said in order to save trouble that "the children will not belong to you in the future", which has no legal effect. It was not until the dispute over inheritance and maintenance broke out that the relationship was never severed. Advice for adoptive parents: Regardless of how your marital situation may change, clearly documenting the adoption papers, support arrangements, and estate planning is the most responsible course of action—both for your adopted child and for yourself.

9. Identity Evidence and Procedural Coordination in Litigation

In disputes over the upbringing of adopted children, identity evidence is the first hurdle, and three common types of issues arise. First, if the adoption registration certificate is lost or not handled in time: the adoption registration information shall be subject to the files of the civil affairs department, and the civil affairs department handling the registration may apply for inquiry or issue an adoption registration certificate, and the "adopted child" relationship record and kinship notarial certificate in the household registration book may be used as auxiliary; If the adoption registration materials are indeed missing, they shall be strengthened by obtaining the adoption approval files, looking for the adoption agreement and witness testimony of the year. Second, the handling of doubts about the validity of the adoption relationship: if the other party denies the adoption relationship and claims false registration in the divorce proceedings, involving the connection between the adoption invalid lawsuit and the divorce proceedings, the court usually first examines the basic issue of adoption validity, and if necessary, suspends the divorce proceedings until the adoption validity is determined. The parties concerned should fix the registration files and evidence of common life as soon as possible. Third, procedural safeguards concerning minor adopted children: In disputes over custody, the court may appoint a family affairs investigator to visit schools and communities to verify the child’s care situation, and the genuine wishes of adopted children aged eight or above should be ascertained in a neutral setting. The key reminder in the procedure is: don't think that "having a registered permanent residence for many years" is equal to the legal relationship between adoptive parents and children. registered permanent residence is only a management record. The only establishment requirement for the effectiveness of adoption is civil registration (Article 105 of the Civil Code). Evidence preparation always revolves around registration and living together.

10. Frequently Asked Questions

After the divorce, who will have custody of the adopted child?

Determination shall be made in accordance with the principle of best interests of the minor child: children under two years of age shall, as a general rule, be placed with the mother; for children aged eight or above, their own wishes shall be respected; and the same standards shall apply as for biological children.

Will adopted children be treated as second-class citizens?

No. Adopted children enjoy the same rights as biological children with respect to upbringing, education, inheritance, and other matters; courts do not base their decisions on blood relations.

Can the biological parents reclaim custody?

Once a lawful adoption is established, the rights and obligations between the adopted child and the biological parents are terminated, and the biological parents generally cannot automatically assert any claims; such rights and obligations may only be restored upon termination of the adoption or a judicial determination that the adoption is invalid.

If you’ve been raising someone for many years but haven’t registered the adoption, does it still count as an adoption?

After the Adoption Law came into effect in 1992, it is generally not counted. An adoption takes effect from the date of registration with the civil affairs department; an unregistered adoption generally does not constitute a legally recognized adoptive relationship.

Can a divorce also terminate the adoption relationship?

No. The termination of an adoption must be carried out through a separate agreement or litigation procedure and registered accordingly; a divorce judgment does not affect the existence or termination of the adoptive relationship.

XI. Practical Insights from a Lawyer

When an adopted child gets divorced, the law makes no exceptions: the criteria for determining custody are exactly the same as those for biological children. Therefore, before any dispute arises, the first step is to clarify whether the adoption was legally valid in the first place. For adoptions registered according to law, the rights and obligations between adoptive parents and adopted children are the same as those of biological parents and children. When divorcing, the issue of raising is handled according to the principle that is most beneficial to minor children. However, the so-called "adoption" that has not been registered has not been established since the beginning of the law, and the child's upbringing and parental ownership have to go back to the line of the biological parents. If the initial assessment is incorrect, all subsequent plans will go off course.

On the premise that it has been established, the burden of proof is the same as in a typical child custody case: which parent provides daily care, with whom the child has been living long-term, and which parent has stable conditions for raising the child. Records of pick-up and drop-off, medical care, school attendance, and daily expenses can all be used as references. For children under two years old, the principle is that they should live with their mother; for those who have reached eight years of age, their own wishes should be taken into account. In cases of this kind, some people often invoke “blood ties” in an attempt to involve the biological parents; however, once an adoption is legally finalized, the rights and obligations between the biological parents and the child are terminated, and blood relations do not automatically reinstate them into the caregiving arrangement.

If the dissolution of adoption is involved, the rules are different: the dissolution of the agreement should go through the registration procedure, the dissolution of the lawsuit should fall into the legal situation, and the adult adopted children after the dissolution may still have the obligation to pay living expenses to the adoptive parents who lack the ability to work and the source of livelihood. Therefore, whether you are an adoptive parent or an adoptive child, you must first distinguish whether you are facing "raising after divorce" or "releasing adoption". The two ways of proof and request are completely different. Don't confuse the two and waste the opportunity of litigation in vain.

The legal status of legally adopted adopted children and biological children is completely equal: custody in the event of divorce is handled according to the principle of the most favorable to minor children, the biological parents are not naturally involved because of blood relationship, and the adoption relationship is not automatically dissolved with divorce. What is really easy to go wrong is those who have been raised for many years but have never registered-once divorced, the identity of the child, the maintenance fee and the visit all lose a clear basis. For adoptive parents: make sure that the adoption registration is complete and the adoption documents and daily life care certificates are kept intact; For the adopter or biological parents: respect the established adoption relationship, and any objection should be resolved through the confirmation of invalidation or dissolution procedure, instead of directly competing for the child in the divorce dispute.