China Lawyer: 10 Most Commonly Asked Questions When Fighting for the Child Custody in China
Q1: How to obtain child custody in a divorce? A1: Under Chinese legal system, child custody could either be decided by an agreement between the divorcing couple or by the court. Q2: After the ex-husband or ex-wife has been granted with full child custody, does the other side still has the right to fight for the child custody? A2: Under Chinese jurisdiction, the other side without child custody still has the chance to file a case for child custody. Q3: In the case of the couple divorcing in foreign countries, whether the judgment from the court or agreement on child custody made outside of China, could be effective in Chinese jurisdiction? A3: When the couple reach an agreement and register for divorce at the civil affairs bureau, the custody agreement has legal effect. When the couple has not registered for divorce at the civil affairs bureau, the custody agreement has no legal effect. Q4: If the couple has not registered marriage in China, how could the agreement reached by this couple be effective under Chinese jurisdiction? A4: There are normally two approaches to ensure the enforceability of the child custody agreement in China. Approach One is registering marriage in China first and then register divorce with a child custody agreement; Approach Two is initiating a divorce lawsuit in the court in China and reach an settlement regarding child custody, or get a court judgment. Q5: Which kind of situations that the claim for getting the child custody would be supported by the court? A5: The claim for getting the child custody would be supported by the court if the requiring side of parent is in one of the following situations: (1) If the other side the child living with could not continually afford the duty of taking care of the child due to his/her serious illness or disability; or (2) If the other side the child living with has not fully performed his/her custody duty or has abused the child, or with whom it is badly for the mental and physical health of the child to live; or (3) If the child who is already 10 years old or older prefers living with the requiring side, and the requiring side has the competence to raise the child. Q6: What kind of factors would be considered by the court in the judgment of child custody? A6: The court would tend to consider two important factors in the judgment, one of which is the conditions offered by each parent, not just financially but also emotionally, and the other is the child’s preference. In addition, for acquiring the custody of the children over 2 years old, the side of parent who is in one of the following situations would get the priority: (1) has experienced the sterilization operation or is infertile due to other reasons; or (2) lives with the child for a relatively long time and thus it would be obviously bad for the health and development of the child after changing the living environment; or (3) has no other child while the other side has other children; or (4) lives with the child, which is beneficial for the child’s growth, while the other side has suffered infectious disease or other serious illness, or is in other kind of situations that would be bad for the health and development of the child and thus is not suitable to live with the child. Q7: Is it possible for parents to reach an agreement that each side has the right to take care of the child in turn? A7: In accordance with relevant judicial practice, it could be accepted by Chinese legal system that each side of the parent agrees to take care of their child in turn, under the principle of protecting the best benefits of child. Q8: After the ex-husband or ex-wife has been granted with full child custody, could the other side visit the child regularly after the divorce? A8: In accordance with the regulations of Marriage Law of the People’s Republic of China (中华人民共和国婚姻法), the relationship between parents and children would not come to an end along with the parent’s divorce. Even the ex-husband or ex-wife has been granted with full child custody, the other side could still enjoy his or her visitation right to see the child regularly. Moreover, the side of parent who has full child custody need to assist. The specific way and time of the visitation should be negotiated by relevant parties, or else, it would be decided by the court. Q9: Is it possible for the father to get the custody of the child under 2 years old? A9: In accordance with the Chinese laws, the child who is under 2 years old often lives with the mother. The father could acquire the chance to live with the child via a suit only if the mother is in one of the following cases: (1) has suffered infectious disease or other serious illness and thus is not suitable to live with the child; or (2) has conditions to take care of the child but fails to fulfill her obligations, and the father requires to live with the child; or (2) is not suitable to live with the child due to other reasons. Q10: Whether the fact that it is the grandparents who take the daily care of the child would be considered in the judgment of child custody? A10: The availability of grandparents who are able to assist in the daily care of the child would be the priority taken into the decision of child custody, in the case when both of the parents demand to live with the child and have similar conditions offering to the child.