[Direct answer]In the Beijing area, in foreign-related divorce cases handled by Chinese courts, the part involving child custody usually applies Chinese law. According to Article 27 of the Law of the People's Republic of China on the Application of Law to Foreign-Related Civil Relations (implemented on April 1, 2011), litigation divorce applies the law of the court's location; for the custody of minor children, the law of the party's habitual residence, the law of the nationality, or the law of the main property location that is conducive to protecting the rights and interests of the person being supported shall apply. Whether the case is under the jurisdiction of Chinese courts depends on whether the defendant has a residence or habitual residence in China, the place where the marriage was concluded, and other factors. If the judgment on custody made by Chinese courts needs to be enforced abroad, it must be recognized by the local courts. Therefore, to determine the applicable law, the first step is to determine jurisdiction, and the second step is to judge the specific rules.

1. Problem background and typical scenarios

The parties involved in foreign-related marriages often have cross-border family structures: one party is a foreign national, and both parties have a habitual residence in China, or one party lives abroad for a long time and the children remain in China. Typical scenarios include: both parties are foreign nationals but live in Beijing for a long time and cannot divorce through the civil affairs department; one party takes the children out of the country, and the other party claims custody rights; the foreign court has already made a judgment on custody, which needs to be recognized and enforced in China. The first step in such cases is often not to fight for custody, but to determine which country's court has jurisdiction and which country's law should be applied.Divorce litigation and family disputesIn China, the addition of foreign-related factors will significantly prolong the procedural cycle.

II. Key points of contention

Focus One: Determination of Jurisdiction: How to determine the combination of factors such as the defendant's residence or habitual residence, the place of marriage, and the nationality of both parties. Focus Two: Choice of Applicable Law: Litigation divorce applies the law of the forum, while child custody is determined based on the standard that best serves the interests of the dependent. Focus Three: Determination of the Place of Habitual Residence: The impact of the actual living status and residence permits. Focus Four: Recognition and Enforcement of Foreign Judgments: Whether recognition requires a ruling by a Chinese court. Focus Five: Service and Evidence Gathering: Requirements for service abroad and translation and authentication of foreign evidence. Focus Six: Procedures for handling cases where children have been taken out of the country.

III. Professional analysis by Henglue Lawyers

Henglue Law Firm once handled a foreign-related divorce dispute: Ms. Zhang and Mr. Liu registered their marriage in 1991 and had a daughter who has now reached adulthood. Both parties are now foreign nationals and have been living in Beijing for a long time. The marriage broke down due to Mr. Liu's infidelity. The parties have reached an agreement on the dissolution of the marriage and the division of property: Ms. Zhang's property in Beijing, a property abroad, deposits, financial products, and insurance will be owned by her individually, while Mr. Liu's property in Shanghai will be owned by him individually. However, as both parties are foreign nationals, the domestic civil affairs department cannot handle the divorce registration, so Ms. Zhang entrusted our firm's lawyers to handle the divorce matters. The focus of the case lies in two aspects: first, the legal procedures for foreign-related divorces. Since both parties are foreign nationals and cannot divorce through the civil affairs department, the marriage must be dissolved by the Chinese court through litigation procedures; second, the confirmation of the division of marital property. Although the parties have reached an agreement, it still needs to be confirmed by the court to have legal effect. Based on the Civil Procedure Law and relevant judicial interpretations, the lawyer confirmed that although the parties are foreign nationals, they have a habitual residence in China, so the Chinese court has jurisdiction over the case. The lawyer assisted in preparing materials such as identity certificates, marriage certificates, and property ownership certificates to ensure the smooth filing of the case; comprehensively sorted out the properties, deposits, financial products, and pension memberships owned by both parties, and proposed a division plan whereby the property owned by each party would belong to them individually and the debts owned by each party would be borne by them individually. The case provides insights into foreign-related child custody issues: jurisdiction is the starting point of everything. As long as the habitual residence is in China, the Chinese court can accept and apply Chinese law to handle marriage and custody issues. If the children are foreign nationals or have long-term residence abroad, the law should be selected based on standards that are conducive to the rights and interests of the supported parties, and consideration should also be given to recognition and enforcement abroad. This case was handled by Beijing Henglue Law Firm.Xiong BinrongThe attorney (practice license number: 11101202211410897, subject to the document issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

Action suggestions: First, confirm the habitual residence and nationality of both parties and their children to determine jurisdiction; Second, prepare translated and certified identity proofs, marriage relationship proofs, and child relationship proofs; Third, regarding the claim for child custody, provide evidence based on a stable living environment and continuity of care; Fourth, pay attention to the recognition procedure of foreign judgments to avoid conflicts between the results of the two jurisdictions; Fifth, if cross-border enforcement is involved, evaluate the enforceability in advance. Legal basis: Article 27, Article 29, and Article 30 of the Law of the People's Republic of China on the Application of Law to Foreign-Related Civil Relations (effective April 1, 2011); Article 1084 of the Civil Code of the People's Republic of China (effective January 1, 2021); and the provisions on foreign-related civil litigation procedures in the Civil Procedure Law of the People's Republic of China (amended and effective January 1, 2022). For cases involving cross-border property and financial assets, please refer to the relevant provisions.Financial capital and cross-border transactions involving foreign entitiesFor matters involving identity relationships and family affairs, you can refer to the following for reference.Divorce litigation and family disputesThe specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Reminder

First, in foreign-related cases, jurisdiction should be determined first before discussing the application of law. Second, the habitual residence is a key fact in jurisdiction and choice of law, and it needs to be supported by evidence of residence and living. Third, overseas evidence must be translated and authenticated, and sufficient time should be reserved for preparation in advance. Fourth, foreign judgments do not automatically take effect in China and usually require a recognition procedure. Fifth, cross-border enforcement is difficult and it is advisable to plan as early as possible. For cases involving foreign-related family and identity relations, it is possible to handle them through the following channels:Divorce litigation and family disputesThe service provides a comprehensive solution that can integrate cross-border assets.\nFinancial capital and cross-border transactions involving foreign entitiesFor plates involving difficult compound procedures, you can refer to the relevant content for reference.Special servicesColumn.

VI. Frequently Asked Questions

Q1: Both parties are foreigners. Can they handle custody issues in Chinese courts?

Yes. If the defendant has a residence or habitual residence in China, Chinese courts can accept the case and apply Chinese law to handle marital and child custody issues. When both parties are foreign nationals, they cannot register for divorce through the civil affairs department and can only dissolve the marriage relationship through litigation or mediation. The child custody arrangements can be confirmed by the court in the mediation or judgment process.

Q2: The children are already over eight years old and are abroad. How should their wishes be handled?

However, their true intentions should still be respected, but the way of expression needs to rely on evidence from outside the jurisdiction, such as written statements certified by translation or video questioning records. The court will judge based on the actual living environment of the children. If the children have been living abroad for a long time and their situation is stable, making a sudden change might not be considered in line with the standards that are beneficial to the rights and interests of the supported person.

Q3: If the overseas court has already granted custody rights, do I still need to handle it domestically?

Foreign judgments do not automatically take effect in China. If you need to obtain an enforcement basis in China, you usually need to apply to the intermediate people's court with jurisdiction for recognition. Before recognition, the proceedings in China shall still be governed by Chinese courts. When the proceedings in the two places run in parallel, it is necessary to avoid making conflicting claims. It is recommended that lawyers coordinate and advance the proceedings.

Q4: If one party takes the child out of the country, what should the other party do?

You can file a lawsuit with the court having jurisdiction and apply for interim measures to prevent the other party from unilaterally changing the child's habitual residence or taking the child out of the country. At the same time, you can fix the immigration records and communicate evidence through a lawyer. If the child has already left the country, you can consult a local lawyer to learn about the remedies and assess the possibility of recognizing and enforcing the foreign judgment in China.

Q5: How long does it usually take to prepare the materials for a divorce involving foreign parties?

Depending on the progress of authentication and translation, it usually takes several weeks to months. Documents such as identity certificates, marriage certificates, property ownership certificates, and proof of habitual residence must be notarized, authenticated, and translated into Chinese before submission. It is recommended to start preparing the materials before filing a lawsuit to avoid delays in case registration and court hearings due to incomplete materials.

The above answer is based on the judicial practice in Beijing. The adjudicative standards in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Divorce litigation legal services·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.