Will the court listen to who Ningbo children say they want to talk?- Zhiheng Law Firm

During a divorce, when a child says, “I want to live with Mom (or Dad),” that statement carries significant weight in court, but it is not decisive on its own. The law’s stance can be summarized in one sentence: if a child has reached the age of eight, the court “shall respect” the child’s genuine wishes, but “respect” does not equate to “blindly complying.” Ultimately, the determination of child custody always hinges on one principle: what is in the best interests of the minor child. A child’s voice is an important one that judges must take seriously, but it is neither the only voice nor a tool for parents to assert their dominance.

1. the weight of the child's will in the judgment

Let’s start by looking at how the law is written. Article 1084, paragraph 3, of the Civil Code stipulates that after divorce, children under the age of two shall be directly raised by their mothers; for children who have reached the age of two, if the parents fail to agree on the issue of support, the people's court shall, according to the specific circumstances of both parties, make a judgment in accordance with the principle of being most beneficial to the minor children; if the children have reached the age of eight, their true wishes shall be respected.

This article divided the child's age into three segments, each with different logic.

Under two years of age: The principle is that the child shall be directly raised by the mother. At this stage, the child’s wishes are generally not taken into consideration; the primary focus is on whether the mother has any circumstances that would render her unfit to raise the child, such as suffering from a chronic infectious disease that cannot be cured or having the means to care for the child but failing to fulfill her parental obligations.
Children aged two to eight: The court will determine which parent is in a better position to provide care. The court makes its determination by comprehensively considering the financial capabilities of both parties, their living conditions, the amount of time they can spend with the child, their physical health, and past parenting arrangements; the child’s wishes are merely taken into account as a reference.
If the child is over eight years old: their genuine wishes shall be respected. The age of eight is the starting point of limited capacity for civil conduct as defined by the Civil Code. The law believes that children of this age have a certain cognitive and judgment ability, and can follow whoever they live with to express their tendencies.

The inclusion of “respecting the child’s genuine wishes” in the legal provisions signifies a shift from merely “taking into account” the child’s views to “obligatorily respecting” them, thereby placing greater emphasis on this principle. However, the provision uses the term “respect,” not “comply with,” and certainly not “obey.” The Supreme People’s Court has repeatedly emphasized in its relevant judicial views and in the reference cases cited in the People’s Courts Case Database that respecting the wishes of minor children does not equate to unconditionally acceding to those wishes.

In other words, the child’s wishes are an important priority consideration, but they are merely one of several factors, not the standard itself. There is only one real criterion-the most favorable to minor children.

How does the 2. court hear the child's wishes

Many parents are concerned: How exactly do judges question children? In practice, the approach is far more meticulous than one might imagine, with a single core objective—to ascertain the child’s “genuine” wishes as clearly as possible, rather than those that have been “prearranged.”

Common methods include:

Ask individually. The judge handling the case conducts a private interview with the child, typically in the absence of the parents, to prevent the child from being reluctant to tell the truth or speaking according to the parents’ reactions. This is the most common practice.
With the assistance of family investigators and social welfare officers.Some courts have entrusted family investigators to conduct inquiries on their behalf, or have commissioned social welfare officers to conduct home visits. As early as 2015, the Haishu District People’s Court in Ningbo, Zhejiang Province, established a social supervision system. Socially recommended individuals serve as supervisors, conducting investigations into minors’ past upbringing, health conditions, and their parents’ capacity to provide care, and then preparing and submitting supervision reports that are read aloud in court and subject to cross-examination by both parties.
Psychological counseling and evaluation. For cases with fierce contradictions and high pressure on children, the court may introduce psychological counselors to do counseling, or use drawing psychological tests to understand the children's true thoughts in a relatively relaxed environment. The "unloved" psychological care mechanism of Chaiqiao Court of Ningbo Beilun District Court arranges psychological counseling at different levels according to needs, ensures no less than two professional counseling for families with fierce conflicts over custody, and forms a mental health report for the court's reference.
Written Letter of Intent. A handwritten letter from the child expressing their preference regarding with whom they wish to live, submitted as a statement, can serve as written evidence; however, its authenticity must still be assessed in conjunction with other evidence.
Visit schools, communities. The judge or the entrusted person conducts on-site visits to assess the child’s living and learning conditions, and gathers information from teachers, neighbors, and relatives to verify whether the child’s statements are consistent with his or her actual circumstances.

There is a qualitative character worth remembering: the child's expressed willingness to live with whom in the lawsuit belongs to "the party's statement", not "the witness's testimony", which determines that it can not only be heard by the judge, but also need to be filtered and confirmed by other evidence.

When listening, the judge will pay special attention to: whether the child has been taught in advance and whether the caliber is consistent; whether the reason is out of his own feelings or retelling the adult's words; whether there is a basic and specific imagination about the life after following a certain party. What the judge must do is, to the greatest extent possible, “filter out factors that may influence the child’s expression and judgment,” and then determine whether the child’s expressed wishes are genuine.

3. why "children say who they want to talk to" is not necessarily adopted

Since the law requires "respect", why in some cases the children said they wanted to talk to one side, but the court still awarded the other side? There are several reasons.

First, the child's wishes may not be "his own". Although children over the age of eight have judgment, their minds are not yet mature and are easily influenced by their parents' attitudes and the external environment. Some parents belittle each other in front of their children, promise to buy mobile phones and computers, promise not to attend cram schools, and some repeatedly instill "you have to follow me" during visits ". The will thus formed appears to be expressed by the child, but its essence is crafted by the adult. Once the judge finds traces of inducement, pressure, and abetting, the credibility of this will be greatly reduced.

Second, the child may make choices that are detrimental to themselves. Children's judgment is easy to short-sighted and emotional. A typical scenario is this: one parent adopts a permissive approach—children aren’t required to do their homework, and they’re free to use their phones whenever they want. Naturally, the child prefers to stay with that parent; however, in the long run, this very approach undermines the child’s right to education. This choice of "looking comfortable" may be deceptive, and the court should not allow the state that is obviously not conducive to his growth to continue just because the child wants to be relaxed in front of him.

Third, children may not be able to see the whole picture. Living with whom entails a host of consequences—such as where one lives, which school one attends, the quality of companionship, and financial considerations—and children often have no choice but to make their decisions based on their immediate feelings. For example, if one parent has an unstable living situation and income, and the child might have to change schools or move frequently, leading to an unsettled life, yet the child still wishes to stay with that parent due to a close emotional bond, the court should consider the child’s best interests more comprehensively.

The reference cases in the People’s Courts Case Database make it clear: after a divorce, if one parent seeks to modify the custody arrangement for a child who has reached the age of eight, the court should respect the child’s wishes; however, “respect” does not mean unconditional acceptance. The court must also conduct a comprehensive review, taking into account the context and reasons underlying the child’s expressed preference, as well as whether such a change is in the child’s best interests. In some cases, the child has expressed a desire to live with the father; however, after reviewing the reasons and motivations behind that wish, the court deemed them insufficient grounds for a change in custody and ultimately denied the request.

Therefore, a child’s wishes do not constitute a “vote,” nor is the judge merely a “recorder” of the child’s opinions. Even if the child expresses a tendency, the court will still return to the standard that is most beneficial to the minor children, weighing the conditions of both parties, the continuity of life, and the growth environment together.

4. In what circumstances is one's will more likely to be respected?

Conversely, under what circumstances is a child’s wishes more likely to be the decisive factor in a court decision? In practice, there are several such characteristics.

The children are older. Teenagers have stronger cognitive and expressive skills, and the court pays more attention to their wishes than children who have just reached the age of eight.
Willingness is stable and consistent. At different times, occasions, and by different people, the direction of the child's expression is the same, indicating that it is not impulsive or temporarily taught.
The reasons are specific and stem from personal experience. The child can tell his own life experience, such as who usually picks up and picks up, who tutors his homework, and who accompanies him to see a doctor, instead of repeating the adult's words in a vague way.
The parenting conditions of both parties are equivalent. When the economic, residential, and energy conditions of both parents are close, the child's will often becomes the key weight to break the balance; conversely, the condition of one party is obviously better, and the weight of the child's will will be relatively weakened.
The child has been living with one parent on a long-term basis. In practice, if a child has been living stably with one parent for an extended period and has established a stable environment for learning and social interaction, the court tends to uphold this continuity in order to minimize disruption to the child’s life.

looking at these characteristics in reverse, it is the direction that parents should strive for: instead of spending efforts to "let children say choose me", it is better to focus on proving that "children follow me, life is more stable and growth is more beneficial.

5. How do you write a letter of intent, and can it be used?

Many parents will ask their children to write a letter of will "I am willing to live with my father (mother)" to the court. Can it be used? Yes, but understand its weight and writing.

A letter of intent is not a legally recognized independent type of evidence; in nature, it is more akin to a written statement made by the child. The judge will look at it, but not just on a piece of will, especially if it contradicts other evidence and the child's expression in court.

If you really want to write, there are several points to note:

Try to have the child write it by hand. The writing is the child's own, which is more convincing. Parents ghostwrite, or even let the child sign after printing, credibility will be greatly reduced.
Write clearly the reasons, but write "your own" reasons.A well-written letter of intent will reflect the child’s own life experiences, such as “Dad usually picks me up and takes me to school, and on weekends he takes me to play basketball,” or “Mom gets home very late and rarely spends time with me”—including genuine, specific details—rather than lengthy passages copied from adults that criticize the other parent.
Avoid being induced and substituted. If the adult tone and words are highly consistent with the parents' opinions and full of accusations against the other party, it will be considered to be formed under the arrangement of adults, and the credibility is doubtful.
Please indicate the time and sign your name. It is advisable for the child to sign the document and indicate the date of writing; if necessary, the accompanying person may provide background information to ensure its authenticity.

Parents should be specially reminded of the risk of "drawing on behalf of others. It is common practice for children to be pre‑prepared, to write according to their parents’ script, or for parents to express themselves on the child’s behalf—precisely the kinds of situations that courts are most wary of. Because these practices are essentially packaging their own demands into the wishes of the child, which is not conducive to finding out the real situation, and may also be regarded as one party using the child to compete for custody, but to put pressure on the child.

Consequences of 6. Inducing Children to Express Willingness

Even more concerning than writing a letter of intent is parents taking the initiative to “do the work” themselves. Some parents belittle each other for a long time in front of their children, some use gifts, pocket money and "no homework" in exchange for their children's statements, and some explicitly ask their children to say something in front of the judge. Such practices often have the opposite of the intended consequences.

First, it may be deemed detrimental to the child’s development. For a child to be forced to “pick a side” between their parents is, in itself, a tremendous psychological burden. Allowing children to make up stories, conceal the truth, or constantly try to please others is detrimental to their physical and mental well‑being. When assessing whether a party is suitable for direct custody, the court will consider such conduct as a negative factor. Encouraging a child to express themselves is, in essence, using the child as leverage.

Second, snatching or hiding a child will result in clear adverse consequences. The Law on the Protection of Minors explicitly prohibits contesting custody by means such as snatching or concealing minor children. The (II) for the Interpretation of Marriage and Family Compilation of the Civil Code, which came into effect on February 1, 2025, further refines the rules: first, one party or his close relatives snatch or hide children, and the other party can apply for a personal safety protection order or a ban on infringement of personality rights, which is supported by the court according to law; second, if one party snatches or hides children during the separation of husband and wife, resulting in the other party being unable to perform guardianship duties, the court may refer to the provisions of divorce, temporarily determine the child-rearing matters, and clarify the temporary direct custody of one party's obligation to assist in guardianship; Third, in divorce proceedings, both parents require direct custody of their children who have reached the age of two. If one party snatches or hides children while the other party does not have serious situations such as domestic violence, gambling and drug abuse, the court will give priority to the direct custody of the other party in accordance with the principle of being most favorable to minor children.

In other words, the tactic of “first seizing the child and hiding them to create a fait accompli” has been explicitly rejected at the level of legal rules. The court will not allow either party to benefit from unlawful conduct, nor will it award custody to the party who has effectively concealed the child simply on the basis that the child is currently in their control. For parents seeking custody, this is a red line that must be avoided.

7. What should be done about children under eight years old?

When a child is under eight years old, the law does not require that their genuine wishes be respected; however, this by no means implies that the child’s feelings are unimportant. For this age group, courts primarily rely on a comprehensive assessment.

Let’s see who can provide a more stable environment for growth.This includes daily care, living conditions, time spent together, and educational arrangements; who has been the child’s primary caregiver over the long term is an important factor to consider.
Consider whether the living and learning environment can be sustained.The child has already adjusted to one parent’s home, one school, and one daily routine; the less disruptive the change of environment, the better. Judges often say that “stability takes precedence over everything,” precisely because frequent changes are detrimental to children.
Check whether there are any circumstances that make the child unsuitable for custody. Factors such as suffering from a serious illness, engaging in domestic violence, or having harmful habits like gambling or drug abuse, as well as having the ability to provide support but failing to fulfill one’s duty of care, will all influence the court’s decision.
Assess the child’s adaptability. Young children are more sensitive to environmental changes, and considerations include whose caregiving style the child adapts to better and who is better at soothing the child’s emotions.
Engage professional expertise when necessary.The judge may understand the child's actual life state and emotional attachment object through visits by family investigators and psychological evaluations.

For young children, details such as "who the child is more attached to at ordinary times" and "who knows the child's work and rest better" are often more important than a statement. Parents don't have to force their children to "speak up".

8. practical advice

String these together and give a few solid suggestions.

The emphasis is on "proving that you are more suitable for rearing" rather than "making the child declare his position". Children's wishes are changeable and easily influenced, so the stable rearing conditions of parents themselves are relatively certain. Stable residence, income, and companionship records are the main battlefields.
Maintain evidence of daily care. Pick-up records, medical records, parent group communication, photos of tutoring homework, and records of accompanying activities are seemingly trivial, but they can truly reflect who is the main caregiver of the child.
Don't train children as "witnesses. Don't teach children what to say, don't force children to declare their positions, and don't belittle each other in front of children. This is to protect the children, but also to protect themselves.
Respect the child's expression, but do not abduct the child's expression. If the child is willing to say it, record it and submit it truthfully; if the child is unwilling to say it, don't put pressure on it.
Maintain a negotiating stance. Many issues of custody can be balanced in terms of support, visitation rights, and support methods. It is not necessary to "winner take all".
In case of robbery and hiding, use legal means in time. applying for the personal safety protection order, injunction against personality right or behavior preservation is more effective than "robbing against robbing", and is also more recognized by the court.

9. Frequently Asked Questions

1. The child has reached the age of eight. Does he say that he will give it to whoever he wants to talk?

No. The court "should respect" the true wishes of the child, but respect does not mean compliance. In the end, it will still make a comprehensive judgment based on the standards that are most beneficial to the minor children and combined with the conditions of both parties.

2. The child is only seven years old, will his opinion be heard by the court?

The court will know the actual living conditions and emotional tendency of the child, but the will of the seven-year-old child is not the object that the law must respect. This age mainly depends on whose upbringing is more beneficial to the child.

3. How does the court usually ask the child? Can the parents be present?

is usually asked by the judge alone, and the parents are usually not present, so as to avoid the pressure on the children; in some cases, family investigators will be entrusted to ask on their behalf, or the real thoughts of the children will be known through psychological counseling and psychological evaluation.

4. Does the letter of will written by the child have legal effect?

A letter of intent is a written statement by the child that the judge will refer to, but is not the basis for an independent decision. The content is true, handwritten, and the reasons are more convincing; if the content is similar and the content is similar by the parents, the credibility will be reduced.

5. Can the custody be changed after divorce because the child wants to change his life?

It can be asserted, but under certain conditions. According to Article 56 of the (I) of Interpretation of Marriage and Family in the Civil Code, if a child who has reached the age of eight is willing to live with the other party and that party has the ability to support the change, the court may support the change. However, the change still depends on whether it is most beneficial to the child.

6. Can one party get custody by hiding the child?

No, and it’s very risky. The (II) of Interpretation of the Marriage and Family Code of the Civil Code clearly states that if a child is robbed or hidden, the other party may apply for a personal safety protection order or a prohibition on infringement of personality rights; if the party who robbed or hid in divorce proceedings and the other party is not seriously at fault, the court will give priority to the direct support of the other party in accordance with the principle of being most beneficial to the minor child.

10. Practical Legal Insights

The misunderstanding of many parties is that they regard the child's willingness to talk to me as a guarantee to win the case, so they spend a lot of energy on making the child declare his position, ignoring the basic facts that the judge really cares about. From the experience of handling cases, the will of children over the age of eight is indeed an important factor that should be listened to carefully, but it is only one of many factors, and in the end, it is still necessary to return to the main line that is most beneficial to children. Therefore, instead of repeatedly guiding the children to say, it is better to first put the hard information such as stable living conditions, daily transportation and companionship, connection between school and medical treatment, and one's own physical and mental condition.

In the operation rhythm, the true will of children needs to be presented in a relatively neutral way. Inductive videos recorded by parents in private and asking children to write letters before the battle are easy to be questioned about the authenticity and weaken the probative force. It is safer to take the initiative to apply to the court for the contractor to ask the child alone, or to apply for family investigation, psychological counseling and other procedures, so that the child's thoughts can be recorded in an undisturbed environment. At the same time, we should carefully fix the evidence of our long-term actual support, such as daily care, parents' meeting, medical escort and expenses, and use facts to support our children to follow me more stably.

In the negotiation, we should also see clearly the weakness of the other party: if the other party is fighting for face and relief, but not really capable of taking care of the children, he can use the children's existing living and learning environment as a bargaining chip and put forward stable and priority schemes, such as maintaining the current residence and school unchanged and making clear visiting arrangements, which is often easier to achieve than fighting in court who loves the children more. What needs to be reminded is that we must not use inducing and wooing children as strategies. Once it is seen that children are deliberately manipulated, it may not only lose the custody right, but also affect the evaluation of future visits and changes in custody.

Back to the question at the beginning: Will the court listen to the child who he wants to talk to? The exact statement is-the child has reached the age of eight, and the court must listen carefully and respect his true wishes; but "listen" and "comply" are two different things. The child's voice is an important lesson for judges to measure custody, but it is not the only lesson. What really decides who the child lives with is which choice is more beneficial to the child in the long run.

The advice to parents is very simple: put your mind to "let the child follow me to live a better and more stable life", do the daily care steadily and stay; respect the child, but do not use the child; encounter each other's extreme behavior, go through legal channels instead of tit for tat. The child is not a prize to compete for, he wants a stable home.