Insights

There is domestic violence in Ningbo. Who will the children be awarded when they divorce?

Ningbo Author：LuXu WANG

When dealing with divorce disputes in Ningbo, if one party has domestic violence, the problem that many parties are most concerned about is: who will the child be awarded in the end. To answer this question, we must first clarify one key premise: although domestic violence is an important factor that courts consider when determining child custody, it does not constitute a rule whereby “any instance of domestic violence automatically results in the loss of parental rights.” The overarching standard for determining with which parent a child shall live is consistently the principle established in Article 1084, paragraph 3, of the Civil Code: “in accordance with the best interests of the minor child.” The factor of domestic violence is an important aspect to be comprehensively considered under this principle, rather than an independent standard to replace this principle.

Therefore, this article does not discuss "whether the domestic violence party deserves it or not", but tries to make three things clear: what is the standard for the court to judge custody, how domestic violence is evaluated in it, and what the party who suffers from domestic violence can prepare and how to protect the children. The entire article revolves around a single sentence: All arrangements must prioritize the best interests of the child.

Who is the child awarded when the 1. is divorced: first look at the judgment criteria

Section 1084 (3) of the Civil Code is the core provision of custody. It stipulates that after divorce, children under the age of two shall be directly raised by the mother as the principle; for children who have reached the age of two, if the parents fail to reach an agreement on the issue of support, the people's court shall, in accordance with the specific circumstances of both parties, follow the principle of being most beneficial to minors Children's judgment; children who have reached the age of eight should respect their true wishes.

In judicial practice, this article is usually divided into three age groups to grasp.

  • Under two years old. The principle of direct upbringing by the mother. During this stage, children are highly dependent on their mother’s care; unless there are clear circumstances rendering the mother unfit to raise the child—such as a serious illness or prolonged failure to fulfill parental obligations—the court will only consider awarding direct custody to the father.
  • Two to eight years old. First, the parents shall negotiate; if no agreement is reached, the court shall make a judgment in accordance with the principle of acting in the best interests of the minor child. This interval is the concentration area of most disputes, and it is also the core interval where domestic violence factors play a role. The court will compare the support ability, support conditions and children's living conditions of both parties.
  • Over eight years of age. The true will of the child should be respected. "Respect" here does not mean "do it all". The court still has to make a comprehensive judgment based on whether the child's wishes are true and rational, as well as other support conditions.

What needs to be reminded is that the above-mentioned file division is only the general thinking of the referee, and "the most beneficial to the minor children" is the general principle that runs through all the time. Economic conditions are only one aspect, not the only criterion; a stable living environment, continuous emotional companionship, and the stability of caregivers are often as important as income.

Why does 2. domestic violence affect custody

The reason why domestic violence has become an important unfavorable factor in the ownership of custody can be understood from three levels.

First, the violent behavior itself reflects the characteristics of the violent party in terms of character, emotional control and communication mode. The party with violent tendencies often finds it more difficult to provide a stable, equitable, and rational environment for the child’s development. The First Civil Trial Division of the Supreme People's Court clearly pointed out in relevant judgments that in divorce cases involving domestic violence, the court should take the benefit of the healthy growth of minor children, that is, the maximization of children's interests, as the principle; while consulting children who have reached the age of eight, domestic violence should be considered as an important factor. If the perpetrator fails to recognize and correct their violent behavior, awarding direct custody of the child to them would neither serve the best interests of the minor nor effectively prevent the intergenerational transmission of domestic violence.

Second, domestic violence is often not just "something between husband and wife", it may also point to children. Some violence falls directly on the child, while others make the child the object of control, anger or chronic intimidation. Judicial experience shows that a considerable proportion of perpetrators beat and intimidate their children while beating their spouses. Such direct or indirect violence against children is an important basis for the court to judge whether the perpetrator is suitable for direct support.

Third, even if the violence does not fall directly on the child, "witnessing domestic violence" is itself an injury. Minors who have lived in an environment of violence, quarrel and fear for a long time are prone to anxiety, depression, increased aggression, difficulties in interpersonal communication, attention and academic influence, and even acquire the behavior pattern of "solving problems with violence. This subtle negative impact has also become an important part of the court's consideration of the attribution of support.

How does the 3. court determine "domestic violence"

It should be clarified that the court’s determination of domestic violence does not mean that a party’s mere assertion of its existence is sufficient. According to Article 20 of the "Anti-Domestic Violence Law," the people's court may determine the facts of domestic violence based on evidence such as the police records of the public security organs, warnings, and injury appraisal opinions when trying cases involving domestic violence. In other words, the identification of domestic violence is a process that relies on evidence.

"Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in Handling Cases of Personal Protection Order" further enumerates the "relevant evidence" that can be used to prove the real danger of domestic violence or domestic violence, which is also applicable to the proof of divorce and custody cases in practice.

  • the statements of the parties;
  • domestic violence warning letter and administrative punishment decision letter issued by public security organ;
  • police records, interrogation transcripts, interrogation transcripts, alarm receiving records, alarm receipts, etc. of public security organs;
  • The letter of repentance and guarantee issued by the perpetrator;
  • record the audio and video recording and other audio-visual materials of the occurrence or solution process of domestic violence;
  • Recording of telephone calls, short messages, instant messages, e-mails, etc. between the two parties;
  • Medical institution’s diagnosis and treatment records;
  • the records of the unit where the applicant or the respondent belongs, the civil affairs department, the neighborhood (village) committee, the women's federation, the minor protection organization and so on receiving complaints, reflections or requests for help;
  • Testimonies made by minor children that are suitable for their age and intelligence, as well as testimonies of other witnesses such as relatives, friends, neighbors, etc;
  • Injury appraisal opinion;
  • Other evidence that can prove the existence of domestic violence or real danger.

Among these evidences, the warning letter issued by the public security organ, the personal safety protection order issued by the people's court and the injury appraisal opinion are usually considered to have strong probative force. It should be noted that efforts should be made to allow different evidence to corroborate each other and form a chain, rather than relying on a certain material in isolation.

It is also necessary to distinguish "domestic violence" from "general conjugal conflict. Occasional, both parties are at fault, minor quarrels or pushing, and continuous beatings, binding, restrictions on personal freedom, frequent verbal threats, etc., are not of the same nature. The court will determine whether it constitutes domestic violence by combining factors such as the number of violent acts, means, consequences, the balance of power between the two parties, and whether a controlling relationship has been formed. A single spat or a slight push and pull is generally difficult to identify as domestic violence.

4. domestic violence party must not get custody

The answer is no, the domestic violence party will not "automatically lose" the custody.

From a normative point of view, Article 14 of the Interpretation (II) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the People's the People's Republic of China of China adopts the expression of "priority": in divorce proceedings, both parents require to directly raise their minor children who have reached the age of two, and one party has the situation of domestic violence or maltreatment or abandonment of family members, etc, the people's court shall, in accordance with the principle of being in the best interests of the minor children, give priority to the direct rearing of the other party. "Priority consideration" does not mean that "the other party must be judged", and the ultimate goal is still the interests of minor children.

In judicial practice, there are indeed some variables that affect the final judgment, such:

  • The object of violence has nothing to do with the child, and does not form a physical danger or obvious psychological impact on the child;
  • The perpetrator has demonstrably reformed by, for example, undergoing psychological counseling and abstaining from violence, and is able to provide relevant evidence thereof;
  • The other party has a situation that is obviously not suitable for direct support, such as long-term failure to fulfill the obligation of support, suffering from serious diseases, having bad habits such as drug abuse and gambling, having no fixed residence, and being away for a long time;
  • Children who have reached the age of eight have a strong will, and the court comprehensively judges that the will is a true and rational expression.

But it needs to be reminded that the court usually has a higher weight on the domestic violence factor. In the above-mentioned exceptions, the burden of proof is on the claiming party, and the threshold is not low. If domestic violence parties want to change their unfavorable evaluations, they often need to take longer and more specific actions to prove their corrections, rather than just one sentence.

5. what evidence the other party needs to prepare

For the party who has suffered domestic violence for a long time and wants to fight for direct support, the evidence preparation suggests to divide it into two lines, which are mutually supportive and irreplaceable.

The first line is the evidence to prove that the other party has domestic violence, which is the warning letter, personal safety protection order, alarm record, injury identification, diagnosis and treatment record, repentance letter, audio-visual materials, help-seeking registration, witness testimony and so on listed above. Several details should be paid attention to when collecting: after calling the police, take the initiative to ask for the receipt of the case or the record of on-site disposal; When seeking medical treatment, truthfully state the cause of injury and keep the medical record, diagnosis and payment voucher; When reporting the situation to the Women's Federation and the community, keep the registration form, receipt or chat record. These details significantly increase the likelihood that the evidence will be accepted.

The second line is the evidence that proves that you are more suitable to raise children directly, which mainly includes:

  • Living and care conditions: stable residence, suitable living environment for children, and the description of who takes care of children on a daily basis;
  • Economic capacity: income certificate, social security or tax payment record, business certificate, etc;
  • Time and companionship: whether the working time is relatively regular, whether you can personally pick up, coach, accompany, and relevant photos, check-in records, and communication records;
  • Children's life and schooling: school attendance, academic situation, medical treatment and work and rest habits, and explain the importance of keeping stable schooling for children;
  • Family Assistance: The situation and willingness of parents and relatives who are willing and able to assist in the care of the child.

In cases involving domestic violence, "proving that the other party is not suitable" and "proving oneself is suitable" are two lines that need to be promoted at the same time, and one of them cannot be done. The court ultimately needs to make a comparison between the two parties, unilaterally emphasizing the fault of the other party, which is often not enough to support the attribution of custody.

Willingness to 6. Children and Domestic Violence

For children who have reached the age of eight, the court should respect their true wishes. However, in cases involving domestic violence, the Civil Division of the Supreme People's Court clearly reminded that even if the children's opinions are consulted, domestic violence must be considered as an important factor. The reason is that minors' cognition of things is not yet mature, and they may make expressions that are not truly rational because they are afraid of being violent again, rely on the material conditions provided by the perpetrator, or out of a simple desire for family integrity.

In practice, if the child expresses "willing to live with the abuser", the court generally will not adopt it mechanically, but will further inquire about the reasons behind the will. If necessary, it will judge whether the child's choice is influenced by violence, coercion or improper guidance through separate inquiry, psychological assessment, family investigation and so on. If the child's will itself is formed under fear and pressure, the court will return to the position of "the most beneficial to the minor child" to make a judgment.

Therefore, the wishes expressed by children due to fear usually cannot be opposed to the comprehensive judgment that is more favorable to them. For parents, it is more important for children to express their ideas in a relatively stable environment, instead of repeatedly asking, pressuring, or even teaching children "how to say".

How to deal with 7. visitation rights

Even if the domestic violence party does not directly raise the child, it still has the right to visit in principle, which is stipulated in Article 1086 of the Civil Code. The article also stipulates that if the father or mother visits their children, which is not conducive to the physical and mental health of the children, the people's court shall suspend the visit according to law; after the reason for the suspension disappears, the visit shall be resumed. Visible, visitation right is not absolute, but not to harm the child's physical and mental health as the boundary.

For situations involving domestic violence, you can pay attention to the following points:

  • The time, place and method of visiting can be as specific as possible in the divorce agreement or judgment, such as limiting to public places, shortening the duration of a single visit, specifying the way of transportation, and reducing the risks brought by individual contact;
  • If the perpetrator continues to violence, intimidate or slander the other party during the visit, or uses the opportunity of the visit to rob or hide the child, the other party can claim to stop the visit and apply for a personal safety protection order;
  • The suspension of visitation must be applied by the party concerned and decided by the people's court. No other organ, organization or individual has the right to suspend visitation.

In addition, Article 12 of the (II) for the Interpretation of Marriage and Family of the Civil Code stipulates that if one parent or their close relatives snatches or hides their minor children, and the other applies to the people's court for the personal safety protection order or the injunction against personality rights, the people's court will support them according to law; if the robbing or hiding party in turn claims that "the other party has domestic violence", the court will tell him to solve the problem through proper means such as revocation of guardian qualification, suspension of visit or change of custody relationship, rather than conniving at his robbery and hiding. Article 13 also stipulates that if one party snatches or conceals a child during the period of separation, causing the other party to be unable to perform its guardianship duties, the court may temporarily determine the maintenance of the child with reference to Article 1084.. These provisions provide a more direct relief channel for the party suffering from domestic violence.

8. practical suggestions

Based on the above contents, the party who suffers from domestic violence can start from the following aspects when dealing with divorce and support:

  • Promptly apply for a personal protection order. This is a special relief provided by the "Anti-Domestic Violence Law", which can prohibit the other party from committing domestic violence, harassment, stalking, contact and intimidation, and can also prohibit the other party from robbing and hiding minor children. If the case is urgent, the court shall make a decision within 24 hours; under normal circumstances, it shall make a decision within 72 hours.
  • Call the police and seek medical treatment in time. After calling the police, ask for the receipt or disposal record of the police, truthfully explain the cause of injury and keep the medical data when seeking medical treatment, and fix the key evidence.
  • Avoid involving children in conflict. Don't blame each other, pull or quarrel in front of the children; Don't repeatedly ask "who you want to talk to" in front of the children ". Children caught in the middle, itself is a kind of injury.
  • Try to communicate in a way that can be retained. Communication with the other party on issues such as upbringing and visits should be carried out as far as possible through text messages, WeChat and other forms that can be saved to reduce verbal disputes.
  • Consult professional advice as early as possible. Sort out the evidence and clarify the litigation request to avoid being passive due to scattered evidence or improper request.

9. Frequently Asked Questions

1. Domestic violence has only happened once, can it be the reason not to judge the other party?

Generally, it cannot directly serve as a decisive reason. The identification of domestic violence usually needs to meet certain standards and form more complete evidence. A single, minor conflict with no actual consequences is often difficult to be identified as domestic violence, but it may still be used as a reference factor for its personality and communication methods.

2. Is having an alarm record enough?

Not necessarily. Alarm records are important evidence, but it is best to confirm each other with warning letters, injury identification, diagnosis and treatment records, witness testimony, etc., to form a chain of evidence. An isolated alarm acknowledgment has limited evidentiary force.

3. The other party beat me, but did not beat the child. Will the child still give it to me?

They should be considered separately. Domestic violence is not limited to direct violence against children, and witnessing domestic violence is also a consideration. However, if the object of violence is really unrelated to the child and does not pose a personal danger to the child, the court will still make a comprehensive judgment based on the conditions of both parties, which cannot be generalized.

4. The child himself said he was willing to live with each other. Can I still fight for it?

Sure. The will of a child over the age of eight is an important reference, but does not necessarily determine the outcome, especially when the will may be affected by violence, coercion or material conditions. The court will still judge under the framework of "the most beneficial to the minor children.

5. The other party won't let me see the child, so can I not let him visit?

They cannot cancel each other out. The right of custody and the right of visitation are two issues, which should be dealt with separately from the starting point of the most beneficial to minor children. Threatening to refuse to pay alimony or prevent visitation is not usually upheld by the courts.

6. After the divorce, I realized that the other party had domestic violence. Can I change the custody?

If there is new evidence that can affect the interests of the child, a lawsuit for changing the dependency relationship can be filed separately. For example, the original foster child violence, beating and scolding, or changes that are obviously not conducive to the growth of the child.

10. Practical Legal Insights

The party with domestic violence is indeed at a disadvantage in the custody, but to turn this disadvantage into the result of your fight for the child, it is not the emotional complaint, but the fact that the child is living more stably. The general standard for the court to judge that upbringing is beneficial to minor children, and domestic violence is only one of the important considerations, which will not automatically eliminate the perpetrators. Therefore, you should focus on stabilizing the current situation of raising children: who will pick them up, see a doctor, hold a parent-teacher meeting, where they live and which school they attend in the past year or two. These continuous and corroborable facts of care can determine the result more than whether they are high or low.

In terms of domestic violence, the evidence should be a chain rather than a single point. Alarm records, medical records, injury photos, warning letters or protection orders can be kept as much as possible, and they are corresponding to the time line, indicating that this is not an accidental conflict. What needs to be reminded is that the premise of collecting evidence is safety. If there is danger at the scene, evacuate first and then ask for help. Don't put yourself in danger for evidence collection. In addition, although the child's wishes will be respected, don't repeatedly exaggerate the other party's infidelity in front of the child, let alone teach the child to express his position. Once the trace of human being is detected, it will weaken the credibility of your claim.

In terms of negotiation and litigation arrangements, visitation rights can be designed as a bargaining chip in exchange. Direct custody and visitation are two things. Instead of being deadlocked over who the child belongs to, it is better to negotiate the time, place and handover method of the visitation into an executable plan so that the other party can make concessions in the visitation arrangement in exchange for custody. In cases where there is a real risk of violence, it is also possible to advocate that the visit should be accompanied or designated places, and the safety of the child should be written into the terms, instead of writing a general sentence that can be visited at any time, leaving room for disputes in the future.

Back to the original question: in the divorce cases with domestic violence in Ningbo, who will the children be sentenced to? In general, domestic violence is an important unfavorable factor affecting the ownership of custody. The judgment point of the Supreme People's Court clearly requires that domestic violence be taken as an important consideration in determining the ownership of direct custody, and that children be protected in a timely manner through personal safety protection orders, changes in support relationships, and suspension of visits. But at the same time, the general standard of custody ownership is always "the most beneficial to minor children".

Therefore, the party who encounters domestic violence should not only stay at the point that "the other party has domestic violence", but should systematically prepare the evidence that it is more suitable to directly raise the child while proving the domestic violence; the court will compare the conditions of both parties, the willingness of the child, the stability of life and so on, and finally make the most favorable arrangement for the child. For children, a stable life, continuous companionship and a safe growth environment are often more important than a temporary victory or defeat.