Will the Ningbo Court suspend the visitation rights of a party? Circumposition, application and restoration of suspension

After a divorce, the child is directly raised by one party, and how often and how the other party can see it is often the easiest thing to conflict again after a divorce. Many clients in Ningbo would ask: The other party drank too much, did it, and even took the child away and hid it. Can I simply not let him see it? Some people also said with certainty that the other party would never want to see the child if he didn't even give him alimony. These ideas sound like relief, but they may not hold up in law.

The right of visitation is the right granted by law not to raise a party directly, not a "chip" that the direct support party can handle at will; but it is not an absolute right without boundaries. When the visit is really detrimental to the physical and mental health of the child, the court can "suspend" the visit in accordance with the law, and the situation can be restored after it disappears. This article makes it clear: who has the right to visit, what is the difference between "suspension" and "not to see" and "enforcement", under what circumstances the court will suspend, who will apply for it and how to resume it.

1. start with the basic rules: who has the right to visit, how and when

the basis for the right of visitation is Article 1086 of the Civil Code: after divorce, the father or mother who does not directly raise the children has the right to visit the children, and the other party has the obligation to assist. It can be seen that the subject of the right is "the father or mother who does not directly raise the child", the direct supporter is not the holder, but the person who has the obligation to assist.

The law stipulates that "the parties shall first agree on the manner and time of exercise; if the agreement fails, the people's court shall make a judgment". If the talks are concluded, it will be agreed on its own. If the talks are not concluded, the court will judge by combining the age of the child, the arrangement of study and life, and the distance between the two parties. If the original divorce judgment did not involve the right of visitation, the parties may sue separately for the right of visitation, and the court shall accept it, on the basis of Article 65 of the (I) of the Supreme People's Court on the Interpretation of the Marriage and Family Part of the the People's Republic of China Civil Code.

There are also two boundaries: first, the subject of legal visitation rights is parents, excluding grandparents and grandparents. On the other hand, "intergenerational visitation" means that grandparents usually rely on the child's father or mother to arrange for their grandchildren. Second, alimony and visitation rights are independent of each other and cannot be "deducted". The other party's failure to pay alimony cannot be a reason for refusing to visit.

2. "suspension of visits" does not mean "no viewing", still less "enforcement"

"Suspension of visit" is the exercise of the people's court to stop visiting in accordance with the law and within a certain period of time, which must be decided by the court through legal procedures. "Refusal to visit" means that the person who directly supports or takes care of the person obstructs the visit of the other party without just cause. "Enforcement" means that the party with the right of visitation applies to the court for supervision when the effective judgment, ruling or conciliation letter has determined the mode of visitation and the party with the obligation of assistance refuses to cooperate. According to Article 68 of the Interpretation (I), the court may take compulsory measures such as detention and fines against individuals or organizations that refuse to assist, but it cannot enforce the children's personal or visiting behavior itself.

If you see the direction clearly, the conclusion is clear: you think that the other party's visit is harmful, and the correct way is to apply for a court suspension, rather than blocking people from the door. Want to visit but was blocked, relief path is to apply for enforcement, rather than door-to-door hard robbery. If the direction is reversed, it is often "reasonable and unreasonable".

Typical situations in which a 3. court would suspend: there is only one criterion

the third paragraph of Article 1086 of the Civil Code stipulates that if a father or mother visits a child, which is not conducive to the physical and mental health of the child, the people's court shall suspend the visit according to law; after the reason for the suspension disappears, the visit shall be resumed. There is only one criterion for judging-"it is not conducive to the physical and mental health of the children". It does not depend on who is more aggrieved, but only on whether the continued visit will harm the children. In judicial practice, the main situations that are easily identified as such include:

1. the visiting party has committed domestic violence, maltreatment, abandonment, or serious violence against the child, which may endanger the personal safety of the child;
2. the visiting party has bad habits such as alcoholism, drug abuse and gambling, which directly affects or harms the children during the visit;
3. the visiting party has a serious infectious disease that has not been cured and may endanger the health of the child;
4. the visiting party instigates or induces the children to commit crimes, or instigates extreme hatred and incites confrontation in the children;
5. the visiting party has robbed, hid or abducted the child, or refused to return the child after the visit, thus undermining the stability of the child's life;
6. other situations that are clearly detrimental to the child's physical and mental health, such as severe mental illness during which the child's safety is endangered.

It should be emphasized that suspension is a "heavy lock" and the threshold is not low. Minor, occasional contradictions, or mere differences in educational concepts or living habits, usually do not constitute a cause for suspension. For this reason, a large number of "applications for suspension" are not supported due to insufficient evidence-the party claiming the suspension bears the burden of proof.

4. who can apply for suspension and what procedures to follow

the subject who has the right to make a request for suspension is broader than the subject who has the right to visit. According to Article 67 of the Interpretation (I), minor children themselves, the father or mother who directly raises the children, and other legal guardians who bear the obligations of raising, educating, and protecting minor children have the right to request suspension.

1. If there is a referee, it shall be raised in the execution.

If the previous effective judgment, ruling or mediation agreement has determined the mode of visit, if one party wants to suspend the visit, it is generally proposed in the implementation procedure of the effective legal instrument, and the court shall, after consulting the opinions of both parties, make a ruling in accordance with the law if it deems it necessary to suspend the visit (Article

66of the (I) of interpretation).

2. If the original decision is not involved or the circumstances change, a separate prosecution

if the original referee did not deal with the visitation right, or both parties did not go through the lawsuit at all, they may sue separately for the visitation right and claim suspension together. If the visiting arrangement that has come into effect needs to be adjusted due to new circumstances, it can also be settled through new litigation.

3. Advance protection in emergency situations

when the personal safety of children is in imminent danger, do not wait passively for the procedure to be completed: call the police, seek medical treatment, fix on-site evidence, make temporary protection, apply for temporary measures for visiting when necessary, or consider changing the parenting relationship together-protect the children first, and then correct the procedure.

5. Resume Visits: How to Apply After the Situation Disappears

suspension is not "killing with one stick". According to Article 66 of the (I) of interpretation, after the suspension of visits disappears, the people's court shall, at the request of the parties, notify them in writing to resume visits-this is the channel left by law for "change. The subject of the application for restoration is usually the party who has been suspended and has the right of visitation; the restoration cannot "take effect" on its own, and even if the previous fault has disappeared, a request must be made to the court, rather than the two parties can resume the exercise in private.

The so-called "disappearance of the situation" means that the cause of the suspension no longer exists, such as the cure of the disease, the abstinence of vice, the completion of correction, the elimination of the risk of violence, and so on. After the recovery, the court may also adjust the visiting methods, such as requiring accompanying, limiting the time and place, and starting from a shorter time to take into account the child's adaptation and sense of security.

6. FAQ

q: The other party has not paid alimony all the time. Can I not let him visit?

Can't. Visiting rights and maintenance are two independent legal relationships, and the law does not stipulate that "no maintenance is lost". Refusing to visit the other party on the grounds of default in alimony cannot be exempted from liability, and may also lead to an unfavorable situation of refusing to perform the obligation of assistance; alimony should be resolved separately through separate claims, application for enforcement, etc.

Q: If a child has been beaten and scolded, will he be able to stop visiting the other party?

Not necessarily. The criterion for suspension is "detrimental to the physical and mental health of the child", not "whether there has been a conflict"; a single, slight beating or disagreement in the way of education is usually not sufficient to reach the level of suspension. In order to obtain support, it is necessary to prove that the harm is real, continuous or in danger of continuing to occur, and to fix it with evidence such as alarm records, medical treatment materials, chat records, witness testimony, etc. If the evidence is insufficient, the court will generally not suspend the visit based on one side of the story.

Q: If the visitation right is suspended, will it be permanently denied?

Not permanently. Suspension is only a restriction on the "exercise" of visitation, not a deprivation of visitation rights. According to Article 66 of the (I) of interpretation, after the reason for suspension disappears, the people's court shall, at the request of the party concerned, notify in writing to resume the visit. Therefore, suspension is a dynamic state: the suspension continues when the condition is still in place, and the condition disappears and can be restored upon application.

Q: What should I do if the other party does not send the child back or even hide the child after visiting?

First, fix the evidence, such as the time of pick-up, the node agreed to be sent back, the chat record urging communication, the alarm receipt, etc., and at the same time report to the police in time and report to the court that made the original judgment. Robbing and hiding children is an act that is obviously not conducive to the physical and mental health of children and also undermines the stability of life, and can be used to suspend visits; if the child's personal safety is at urgent risk, temporary protective measures can also be considered, and even a change in the dependency relationship can be advocated.

Practical Experience of 7. Lawyers

if you are a direct dependant and want to restrict or even suspend visits, the first thing is to translate "emotional reasons" into "legal reasons"-those things that you feel angry must fall on the point of "not conducive to the physical and mental health of your children" in court. Therefore, the evidence should be fixed in a chain and rhythm, instead of holding on to a quarrel: what the other party said and did in front of the child during the visit, and the child's emotional and physical reactions afterwards should be kept in the first place, including WeChat chat records, total conversation recordings, injury photos, medical records, alarm receipts and witness testimony when necessary. The court is looking at "whether it continues, whether it has reached a certain degree, and whether there is any danger of continuing to occur". Scattered single-point conflicts usually cannot sustain a suspension. At the same time, don't ignore negotiation and mediation, send a written reminder to the other party and keep the trace of service, which not only leaves a step for the other party, but also paves the way for possible future applications.

Timing and avoiding pits often determine the outcome more than evidence. Many people "don't let him see" as soon as they come up, but push themselves to a disadvantageous position-they refuse to assist without permission, and the other party can apply for enforcement in turn. A more secure approach is to continue to cooperate with the visit within the framework of the original judgment or agreement, fix the evidence while cooperating, wait for the materials to basically take shape, and then request a suspension from the court that made the original judgment (in the execution procedure) or prosecute separately. If the child's personal safety is in imminent danger, do not wait for the procedure to be completed, call the police first, protect first, and apply for temporary measures if necessary. Also remember the direction of proof: the party advocating the suspension bears the burden of proof, the material is not enough, the court will not make the suspension based on "I think" alone, rather than repeatedly emphasize their grievances, it is better to clarify the facts and evidence.

If you are the party who is "stuck" and not allowed to watch, don't go to extremes. First of all, judge whether the other party is purely emotional obstruction or whether there is a legal justification in his hand: if it is only a matter of attitude, the normal relief is to apply for enforcement and let the court come forward to urge assistance, instead of robbing at home and fighting in front of the children-that will not only not solve the problem, but may also create evidence for the other party that "you are not conducive to the physical and mental health of the children. If the visit is indeed suspended because of some of his actions, the most effective way is to eliminate the cause-cure the disease, quit the bad habits, complete the correction, and then submit the materials that can prove that "the situation has disappeared" to the court for recovery. After recovery, the court is likely to adjust the visiting methods, such as requiring accompanying, limiting the time and place, starting from a shorter time, and accepting these arrangements first, it is more practical to regain trust with stable performance than to fight blindly. In the final analysis, whether it is suspended or restored, the end result is the same sentence-what is the best for the child's physical and mental health.