[Direct answer]The core of seeking child custody rights is to prove to the court that it is in the best interests of the minor children to be directly raised by the party seeking custody. Specifically, four conditions need to be met and proven: first, having stable living and care conditions, including residence, income, and available time for companionship; second, having established a stable custody relationship, with the children living with the party seeking custody for a long time; third, the other party having circumstances that are not conducive to child-rearing, such as long-term failure to fulfill custody obligations, having bad habits or a criminal record; fourth, respecting the children's own wishes. Where the children are over eight years old, their true wishes should be respected. According to Article 1084 Paragraph 3 of the Civil Code of the People's Republic of China (effective January 1, 2021), children under two years old are generally raised by their mothers directly; where the children are over two years old and the parties cannot reach an agreement, the people's court shall make a judgment in accordance with the principle that is most conducive to the interests of the minor children; where the children are over eight years old, their true wishes should be respected. In addition, if one party has committed major faults such as bigamy, cohabitation with others, or domestic violence, according to Article 1091 of the Civil Code of the People's Republic of China (effective January 1, 2021), the innocent party has the right to request damages, and such faults will also affect the court's judgment on custody rights.

I. Legal basis and interpretation of provisions

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

The provision stipulates that, 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 fail to reach an agreement on the issue of child-rearing, the people's court shall make a judgment according to the principle that is most beneficial to the minor children based on the specific circumstances of both parties; and for children over the age of eight, their true wishes shall be respected.

2. Article 1091 of the Civil Code of the People's Republic of China (effective from January 1, 2021)

The article stipulates that in the following circumstances, if the divorce occurs, the innocent party has the right to request damages: bigamy; cohabitation with others; domestic violence; abuse and abandonment of family members; and other major faults. Interpretatively, the application of this article requires two prerequisites: first, there must be a statutory fault situation; second, there must be a causal relationship between the fault and the divorce.

3. Article 1063 of the Civil Code of the People's Republic of China (effective January 1, 2021)

The article stipulates that the following properties shall be the personal property of one of the spouses: the premarital property of one party; the compensation or reparation received by one party for personal injury; the property specified in the will or gift contract as belonging solely to one party; the personal daily necessities of one party; and other property that should belong to one party.

4. The interpretation of the practical judgment

In the practice of family law trials, the court's judgment on custody rights focuses on the interests of the children rather than the demands of the parents.

II. Henglue Lawyer's Real Cases (Detailed Review)

Case review: Ms. Li and Mr. Xu were graduate school classmates. After graduation, they entered into a romantic relationship and registered their marriage in early 2018. In 2021, they had a son. Due to a lack of understanding before marriage, the couple often argued after marriage. In 2020, Ms. Li discovered that Mr. Xu had been having an affair. Mr. Xu immediately promised to reform, but later failed to change his ways. He was later arrested by the public security organ for soliciting prostitutes. In early 2022, Mr. Xu left home and the couple have been living apart ever since. Disillusioned, Ms. Li resolutely filed for divorce. Mr. Xu agreed to the divorce, but demanded a legal division of the couple's jointly owned property and custody of their child. To secure custody of the child and protect her own rights, Ms. Li entrusted Attorney Li Yonghui of Beijing Henglu Law Firm to represent her in the lawsuit.

The focus of the controversy:The first focus is whether the marital relationship between the couple has broken down and whether a divorce can be granted in one judgment. The second focus is the custody of the couple's child and whether the man's prostitution constitutes a major fault leading to the divorce. The third focus is whether multiple sets of real estate, parking spaces, and financial assets belong to the couple's joint property and how to divide them, especially the determination of the nature of the property donated by parents to individuals.

Our position and that of the other party are as follows:Ms. Li requests a divorce judgment, with the children being raised by herself, and claims that the man's prostitution and infidelity constitute a major fault, and he should pay damages. Mr. Xu agrees to the divorce, but requests that the children be raised by him, and claims that some of the real estate, parking spaces, and the woman's financial assets belong to the couple's joint property and should be divided.

Attorney's Strategy and Legal Opinions: After accepting the case, Attorney Li Yonghui immediately communicated with the client in detail and provided psychological comfort, fully understanding the client's demands. At the same time, she sorted out the status of the couple's jointly owned property and conducted investigations and evidence collection to prove that it would be more suitable for the child to be raised by the mother.

Court reasoning and case outcomes: After trial, the first-instance court adopted the main opinions and demands of Henglue Law Firm: supporting the woman's request for child custody; determining that the woman is the non-at-fault party; and, considering the man's degree of fault and financial status, the court ordered the man to pay the woman 50,000 yuan in compensation. Regarding property division: the Porsche SUV does not belong to the couple's jointly owned assets; the Tesla car registered under the man's name belongs to him, and the man shall pay the woman 200,000 yuan as compensation; House No. 06 belongs to the woman's premarital property and shall not be divided; House No. 04 and Parking Space No. 09, based on the existing evidence, are deemed to be gifts from the woman's parents to her personally and do not belong to the couple's jointly owned assets; the woman's bank deposits and financial investments mainly come from her premarital property and funds entrusted by her parents for investment and interest income. Among them, the portion belonging to the couple's jointly owned assets shall be awarded to the woman in accordance with the principles of protecting the interests of the children, the woman, and the non-at-fault party.

This case is handled by Beijing Henglu Law Firm.Li YonghuiThe attorney (practice license number: 11101199611955812, subject to the document issued by the judicial administrative organ) acts as the 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.

Q1: If the man is detained for soliciting prostitutes, can the woman file for divorce and get a divorce judgment in one go?

Prostitution constitutes a major breach of the marital duty of fidelity. If both parties agree to divorce, or there is evidence to prove that the marital relationship has indeed broken down, the court may grant a divorce in a single judgment. At the same time, the woman, as the innocent party, has the right to request damages; according to Article 1091 of the Civil Code of the People's Republic of China (effective from January 1, 2021), if the divorce is caused by bigamy, cohabitation with others, domestic violence, abuse or abandonment of family members, or other major faults, the innocent party has the right to request damages.

Q2: If a child is under two years old, who is usually awarded custody in a divorce case?

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. In practice, the court will also verify the actual living conditions of the children. If the children have been living with their mothers and the mothers have basic parenting abilities, the children will usually be awarded to the mothers. If the father claims custody, he needs to provide evidence to prove that the mother has legal circumstances that are not suitable for raising the children, such as incurable infectious diseases, having the ability to raise the children but failing to fulfill their parental obligations, etc.

Q3: If the parents fully funded the purchase of the house and declared it as a gift to the individual, does it need to be divided in the event of a divorce?

It is usually not divided as the couple's joint property. If the gift agreement clearly stipulates that the house is only gifted to the children personally, and there are supporting evidence such as bank funding certificates and the other party's signature, the house is generally recognized as the children's personal property. According to Article 1063 of the Civil Code of the People's Republic of China (effective January 1, 2021), the property specified in a will or a gift contract as belonging solely to one party belongs to the personal property of that party. Therefore, it is necessary for parents to sign a written gift agreement and retain the payment receipts when providing financial support.

Q4: How much can divorce damages typically be awarded?

There is no unified fixed standard. The court will determine the compensation amount based on the degree of fault, the economic level of the at-fault party, the local living standard, and the consequences caused. In practice, the compensation amount for a simple extramarital affair is usually relatively limited; if there are circumstances such as cohabitation with others, bigamy, or domestic violence, the compensation amount will be correspondingly increased. It should be noted that if the division of property has already reflected the care for the non-at-fault party, the court may no longer support a high compensation amount repeatedly, so the design of the request needs to be considered as a whole.

Q5: If there are financial transactions during the pre-marriage period and after marriage, will they be considered as joint property during the divorce?

The key lies in the source of the funds and whether there is any commingling. If the main source of funds is pre-marital personal property and funds entrusted by parents for financial management, together with the interest earned therefrom, and the post-marital personal income is mainly used for family expenses and child-rearing, the court usually determines that this part does not belong to the couple's joint property. If the pre-marital property and post-marital income are commingled for a long time and cannot be distinguished, the commingled portion may be treated as joint property. Therefore, it is recommended to keep complete proofs of the flow of funds.

IV. Advice on Protecting Rights and Interests

For further reading:Divorce litigation and family disputes.

  • First, determine the legal age range of the children: for those under two years old, the principle is that the mother should directly raise them; for those between two and eight years old, a comprehensive comparison should be made; and for those over eight years old, the children's true wishes should be respected, with the focus of the strategy being completely different.
  • Systematically organize the materials that can prove a stable parenting relationship: proof of residence and school enrollment, medical and educational bills, daily care records, and explanations of care assistance from relatives, to form a continuous timeline.
  • Properly preserve evidence of the other party's major misconduct in a timely manner: police reports and injury verification materials for domestic violence, punishment decisions for prostitution or drug abuse, and legal evidence of extramarital affairs. This not only serves to support damage compensation claims, but also influences the determination of custody rights.
  • If the parents fund the purchase of the house, it is necessary to sign a written gift agreement and specify that the gift is only for the children. The payment should be made directly from the parents' account and the receipts should be kept to avoid being recognized as joint property in the future.
  • Claim all rights of custody, alimony, visitation arrangements, and property division as a comprehensive package in one go, so as to reduce the time consumption and repeated impact on children caused by multiple litigations.

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