[Direct answer]The only core criterion for the court to determine custody rights is to ensure the best interests of the minor children. Specifically, four factors are examined: the age of the children, the parents' ability and conditions for raising the children, the children's current living situation, and the children's own true wishes. According to Article 1084 Paragraph 3 of the Civil Code of the People's Republic of China (effective January 1, 2021), after divorce, children under the age of two shall be raised directly by their mothers; for children over the age of two, if the parents cannot reach an agreement on custody, the people's court shall determine custody based on the specific circumstances of both parties and in accordance with the principle of ensuring the best interests of the minor children; for children over the age of eight, their true wishes shall be respected. The most important practical experience is that the de facto custody relationship formed through long-term stable cohabitation is often more decisive than income levels. Therefore, the party seeking custody rights should fix the evidence of cohabitation and care investment as early as possible, rather than supplementing materials at the last minute before the trial.

I. Legal basis and interpretation of provisions

1. Article 1084 Paragraph 3 of the Civil Code of the People's Republic of China (effective January 1, 2021)

The provision stipulates that, after divorce, children under the age of two shall, in principle, be directly raised by their mothers; for children over the age of two, if the parents fail to reach an agreement on the issue of child-rearing, the people's court shall, based on the specific circumstances of both parties, make a judgment in accordance with the principle that is most beneficial to the minor children; for children over the age of eight, their true wishes shall be respected.

2. Article 44 and Article 46 of the Interpretation of the Supreme People's Court on the Application of the Marriage and Family Chapter of the Civil Code of the People's Republic of China (I) (effective January 1, 2021)

The interpretation further elaborates on the determination of direct custody: if one party suffers from a chronic infectious disease or other serious illness that cannot be cured, or fails to fulfill his or her obligation to support the children due to insufficient support conditions, or has other circumstances that are detrimental to the children's physical and mental health and are not suitable for living with the children, the other party may request direct custody; for children who have reached the age of eight, the court shall listen to and respect their true wishes, and make a comprehensive judgment based on the parents' ability and conditions to support the children.

3. Provisions of the Law of the People's Republic of China on the Protection of Minors regarding the principle of acting in the best interests of minors (implemented on June 1, 2021)

Article 4 of the Law stipulates that in handling matters involving minors, we shall adhere to the principle of acting in the best interests of minors, provide special and priority protection to minors, respect the dignity of minors, adapt to the laws and characteristics of the physical and mental development of minors, listen to the opinions of minors, and protect their right to privacy and personal information.

4. The interpretation of the case by the practical judges

Judging from the practice of family trials in recent years, the court usually makes judgments in the following order: first, determine the age range of the child; second, determine with whom the child currently lives and whether the living environment is stable; third, compare the parents' ability to raise the child and the length of time spent with the child; and finally, listen to the opinions of children who have reached the age of eight.

II. Real Cases Handled by Henglue Law Firm (Detailed Review)

Review of the case: Xiao Ya and Xiao Lei registered their marriage in November 2013. After marriage, they had an elder son, Xiao Guang (born in September 2015), and an elder daughter, Xiao Yang (born in October 2018). Both children have been living steadily with Xiao Ya.

The focus of the controversy:First, can the judicial practice of one parent raising one child be broken through, and how to strive for both children to be raised by the mother in accordance with the principle of the best interests of minor children? Second, how to establish evidence of the breakdown of the relationship and the man's neglect of child-rearing? Third, who should bear the credit card debt under the woman's name?

Our position and the other party's position: Xiaoya claims that the marital relationship has broken down and there is no possibility of reconciliation. The two children should be raised by the woman for a long time, and the man should pay alimony. She also demands that the man should bear the debts incurred by the credit card opened with her ID card.

Attorney's Strategy and Legal Opinion: First, establish a body of evidence demonstrating the breakdown of the relationship and the mother's advantage in child-rearing, organizing travel records, residence certificates, WeChat chat records, and records of the children's education and medical care to prove that the couple has been living apart without communication for a long time and that the father has been absent from family life. Second, based on the principle of "what is most beneficial to the minor children" established in Article 1084 Paragraph 3 of the Civil Code of the People's Republic of China (effective January 1, 2021), emphasize that the mother's long-term cohabitation has formed a stable child-rearing relationship, and any sudden change would be detrimental to the children's physical and mental health, while the father has been away from home for a long time and lacks stable care conditions. Third, regarding the debt assumption, argue that the credit card under the mother's name was opened by the father using her ID card and has been used for personal matters for a long time, so the debt should be borne by the father.

Court reasoning and case outcomes: The court adopted Attorney He Ningning's core argument regarding the principle of acting in the best interests of minor children, breaking away from the common balancing judgments in judicial practice. The court mediated the divorce and granted the woman custody of the two children, with the man legally paying child support. Regarding the division of property and assumption of debts, the court also reached a mediation outcome favorable to the woman, ensuring both the protection of her legal rights and a stable living environment for the children.

This case is handled by Beijing Henglu Law Firm.He NingningAttorney (Practice Certificate No.: 11101202511925103, subject to the certificate issued by the judicial administrative organ) acting as an agent.

III. Frequently Asked Questions

This column also features other content.Divorce litigation and family disputesThe content of the special topic can also be referred to for reference.

This column also features other content.Divorce litigation and family disputesThe content of the special topic can also be referred to for reference.

Q1: Can both children be awarded to one party?

Yes. The court follows the principle of putting the best interests of minor children first and is not bound by a fixed rule. If one party lives with the children for a long time and forms a stable custody relationship, while the other party is often away and lacks the conditions for childcare, both children may be awarded to or mediated to be raised by one party. In practice, the emotional connection between siblings will also be taken into account. Separating them abruptly may be considered detrimental to the children's physical and mental health, which is an important argument in striving for the custody of the two children.

Q2: Who is usually awarded custody of a child under the age of two?

According to Article 1084, Paragraph 3 of the Civil Code of the People's Republic of China (effective January 1, 2021), children under the age of two shall be primarily raised by their mothers. This is a presumptive rule rather than an absolute one. If the mother suffers from a chronic infectious disease that cannot be cured, or if she has the ability to raise the child but fails to fulfill her obligation to do so, the father may request to directly raise the child. For children who have reached the age of eight, their true wishes should be respected.

Q3: Does being separated for many years count as an automatic divorce?

There is no automatic divorce. In China, there are only two ways to dissolve a marriage: divorce by agreement and divorce by litigation. No matter how long the separation lasts, it will not automatically dissolve the marriage relationship. However, the fact of separation has important legal significance: if the couple has been separated for more than two years due to marital disharmony, it is one of the statutory circumstances under which the people's court shall grant divorce; at the same time, the fact of raising children alone formed by long-term separation is also an important advantage in striving for custody rights.

Q4: Who will repay the debt on the credit card that the other party used my ID card to apply for?

The key lies in the actual use of the funds and the ownership of the benefits. If the credit card was applied for by the other party and used for long-term actual consumption, and the borrowed funds were used for their personal affairs, it can be claimed that it does not belong to the couple's joint debt and should be borne by the actual user. The parties should keep evidence such as consumption records, repayment records, and communication records. If necessary, they can apply to the court to obtain the account statements from the issuing bank, clarify the loan agreement and the flow of funds, and avoid being required to share debts that do not belong to them during the divorce.

Q5: What evidence do I need to prepare to fight for custody rights?

It is recommended to prepare from four aspects: First, evidence of living together, including proof of residence, school records, and daily care records; Second, evidence of contributions, including education and medical bills, training payment receipts, and records of picking up and taking the child to the doctor; Third, evidence unfavorable to the other party, including failure to fulfill parental obligations, long-term absence from the local area, and having bad habits or a criminal record; Fourth, evidence of conditions, including income proof, stable housing, and a statement of assistance in childcare from relatives. The evidence must be genuine and legal, and it is best to form a chronological timeline.

IV. Suggestions for Protecting Rights and Interests

  • From now on, the system will record the daily care of children, including picking them up and dropping them off, taking them to the doctor, attending parent-teacher meetings, and assisting with homework. It is recommended to keep photos, payment receipts, and school communication records to form continuous evidence of their daily life trajectories.
  • Do not take your children away from their current living environment or transfer them to another school without authorization. The court attaches great importance to the stability of their lives, and a sudden change in their environment may be regarded as detrimental to their physical and mental health.
  • For children who have reached the age of eight, it is important to avoid belittling the other parent in front of them or teaching them to take sides. The court will independently hear the children's true wishes, and improper guidance may backfire.
  • Simultaneously, prepare the materials related to your own child-rearing conditions, including income and tax payment certificates, proof of stable residence, a written statement of assistance from relatives in childcare, and a schedule of available time for accompanying the child.
  • If the other party fails to fulfill their obligation of support for a long time, it's important to keep records of the reminders and communications, as well as evidence of the other party's absence. This plays a crucial role in both custody rights and child support claims.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, so as to avoid missing the statutory time limit. →Divorce Litigation | Legal Services for Family Disputes·Attorney He Ningning·Beijing Henglu Law Firm