[Direct answer]When both parents are alive and capable of raising their children, grandparents cannot directly obtain custody of their grandchildren—parents are the statutory guardians, and divorce does not terminate the parent-child relationship. Only when the parents have died or are unable to raise their children do grandparents have a statutory obligation to care for them and can claim custody, based on Article 1074, Paragraph 2 of the Civil Code of the People's Republic of China. If one wants to turn the fact of long-term childcare into a favorable factor, evidence should be organized around Article 1084, Paragraph 3, which states that the principle of what is most beneficial to the minor child should be followed, to prove that the child will live more stably with one of the parents. When parents are competing for custody, the court will consider the grandparents' care conditions as an important reference, but this does not directly grant custody to the grandparents. It is recommended to consult a professional lawyer as soon as possible to determine the litigation path.

I. Legal basis and interpretation of provisions

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

This provision establishes the rules for child custody after divorce: as a general principle, children under the age of two shall be directly raised by their mothers; where an agreement cannot be reached after the child has reached the age of two, the court shall make a judgment based on the principle of maximizing the interests of the minor children; and children who have reached the age of eight shall be respected for their true wishes. The legislative purpose is to prioritize the best interests of the children rather than the rights claims of the parents. The prerequisite for application are that both parents have the qualifications to raise the children; the court shall make an overall judgment based on economic conditions, caregiving abilities, continuity of life, emotional dependence, and educational and medical resources, and cannot simply determine superiority or inferiority based on income levels. Common disputes focus on the identification of long-term actual custody, and whether seizing or hiding children to create a fait accompli should be subject to negative evaluation.

2. Article 1074 Paragraph 2 of the Civil Code of the People's Republic of China (effective as of January 1, 2021)

The article clearly stipulates that capable grandparents have the obligation to support their minor grandchildren whose parents have died or are unable to raise them. This is a direct legal channel for grandparents to intervene in the fostering relationship, and the legislative purpose is to ensure the basic survival and growth conditions of minors when parents are absent. The applicable prerequisites include two aspects: first, the grandparents must be capable of supporting the children; second, the parents must either have died or be unable to raise the children. The latter is determined by objective circumstances such as long-term imprisonment, serious illness leading to loss of working and caring abilities, or being declared missing, rather than simply financial difficulties.

3. The interpretation of the case by the arbitrator

The court's approach is relatively consistent: when both parents are alive and there are no obvious circumstances that make them unfit to raise children, the court generally does not support grandparents directly obtaining custody rights, but may include them in the evaluation of assisting care conditions; when one parent dies, the other parent goes missing, or fails to fulfill their custody obligations for a long time, the court is more likely to support the grandparent who has formed a long-term stable living relationship with the grandchildren; the court generally holds a negative attitude towards de facto custody formed by abducting and hiding children. Supporting such situations is often accompanied by evidence of long-term cohabitation and stable schooling and medical treatment; if not supported, it is often because the parents, although working away from home, still have the willingness and basic ability to raise their children.

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

Review of the case:The parties involved, Xiaoya and Xiaolei, registered their marriage in November 2013. After marriage, they had an eldest son, Xiaoguang (born in September 2015), and an eldest daughter, Xiaoyang (born in October 2018). Both children have been living with Xiaoya. Since the birth of their eldest son, Xiaolei has been away on business for a long time, and the couple has been living apart for more than ten years, with poor communication and indifferent feelings towards each other. During the separation, Xiaoya alone took care of the children's daily life, academic tutoring, medical treatment, and psychological support, while Xiaolei failed to fulfill his duty of support and upbringing. Xiaoya entrusted a lawyer to sue for divorce, demanding a divorce judgment, custody of the two children, and alimony payments from the man; however, Xiaolei filed a lawsuit first, demanding a divorce and custody of the daughter for himself and custody of the son for Xiaoya, with Xiaoya required to pay alimony of 1,000 yuan per month. As a result, Xiaoya's status changed to that of a defendant.

The focus of the controversy:The first focus is whether it is possible to break through the common practice in judicial practice of one person raising one child, and strive for both children to be directly raised by the woman; the second focus is how to build evidence of the breakdown of the relationship and the man's long-term neglect of child-rearing; the third focus is who should bear the credit card debt under the woman's name.

Our position and that of the other party are as follows:Xiaoya claimed that the couple's relationship had broken down and there was no possibility of reconciliation. The two children should be raised by her for a long time, and the man should pay alimony. The credit card debts incurred by the man using her ID card should be borne by him. Xiaolei, on the other hand, claimed that he would raise one child and requested that the legitimate daughter be given to him and the legitimate son to her, and that she should pay alimony.

Attorney's Strategy and Legal Opinions:The attorney handled the case from three aspects. Firstly, gathering evidence of the breakdown of the relationship: organizing travel records, proof of residence, WeChat chat records, and records of the children's education and medical care to demonstrate that the couple had been living apart for a long time, lacked communication, and that the husband was absent from family life. Secondly, in accordance with Article 1084 Paragraph 3 of the Civil Code of the People's Republic of China, which stipulates the principle of "what is most beneficial to the minor children", the attorney argued that the wife had been living with the children for a long time, forming a stable parenting relationship, and that any abrupt change would be detrimental to the children's physical and mental health. Moreover, the husband operated his business in a different city and lacked stable care conditions, so it was appropriate for the two children to be directly raised by the wife. Thirdly, regarding the debt issue, the attorney argued that the credit card under the wife's name was opened by the husband using her ID card and had been used for personal purposes for a long time, so the debt should be borne by the husband.

The court's reasoning and the outcome of the case:The court adopted the core opinions put forward by the attorney on the principle of maximizing the interests of the minor children, broke through the common balancing judgments in judicial practice, mediated the divorce and granted the woman the custody of the two children, with the man legally paying child support; and also reached a mediation result favorable to the woman in the division of property and the assumption of debts, ensuring both the woman's legitimate rights and a stable living environment for the children.

The case is handled byHe Ningning(Practice license number: 11101202511925103. The document issued by the judicial administrative organ shall prevail.) Agency. Henglue also specializes in family law matters.Attorney Xiong Binrong、Attorney Liu XingyingWe have long been handling disputes over custody and visitation rights.

III. Frequently Asked Questions

Q1: If both parents are present, can the grandparents directly request custody of the child?

In principle, this is not allowed. According to Article 1084 Paragraph 3 of the Civil Code of the People's Republic of China, the relationship between parents and children after divorce shall not be eliminated by the divorce. Parents still have the rights and obligations to raise, educate, and protect their children; children under the age of two shall be directly raised by their mothers as a general rule; and those over the age of two shall be decided according to the principle that is most beneficial to the minor children. Grandparents are not statutory guardians. When one or both parents are capable and willing to raise the children, they cannot obtain custody rights independently of the parents. However, long-term caregiving will be an important consideration for the court to make a judgment.

Q2: Under what circumstances can grandparents obtain custody of their grandchildren?

Only when the parents have died or are unable to raise their children do grandparents have a legal obligation to raise them and can claim custody. According to Article 1074 Paragraph 2 of the Civil Code of the People's Republic of China, grandparents who are capable of supporting their children have the obligation to raise their minor grandchildren whose parents have died or are unable to raise them. In practice, the inability to raise children often manifests itself in the form of both parents serving long prison sentences, suffering from severe mental illness and losing their capacity for civil conduct, being unaccounted for or having no ability to care for them. In this case, they can apply for a change in the custody relationship.

Q3: Can grandparents' long-term care for their grandchildren be used as a reason to fight for custody rights?

This can be used as an important factual claim, but it must focus on what is in the best interests of the minor children. According to Article 1084 Paragraph 3 of the Civil Code of the People's Republic of China, the court will comprehensively examine who the children currently live with, the stability of their living environment, educational and medical conditions, and the degree of emotional dependence. If the grandchildren have been raised by their grandparents since birth and have formed a stable living circle by attending local schools and receiving medical treatment, their willingness and ability to raise the children will be taken into account in the evaluation; however, this does not mean that the grandparents will directly obtain custody rights. It usually means that they will support their children in directly raising the grandchildren.

Q4: What evidence do I need to prepare for a custody dispute?

The core is to build a chain of evidence around who is more suitable for child-rearing. First, proof of child-rearing ability: income proof, property proof, social security payment records, and health reports; Second, proof of actual care: pick-up and drop-off records, certificates from schools and community residents' committees, medical accompaniment records, photos and videos; Third, evidence unfavorable to the other party: police reports and warning letters regarding domestic violence, records of alcoholism and gambling, materials showing long-term uncontactability or imprisonment, and written evidence of abandonment and abuse; Fourth, materials showing the children's wishes: written opinions from children aged over eight or court interrogation transcripts. The methods of obtaining evidence must be legal. Materials obtained through wiretapping or illegal means may not be admitted as evidence.

Q5: If they can't win custody, what other rights can the grandparents claim?

They can claim related rights such as visitation. According to Article 1086 of the Civil Code of the People's Republic of China, 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. Although grandparents are not included in the provisions of the article, in judicial practice, if they have fulfilled long-term obligations of raising and caring for the children, or if one of the parents dies or goes missing, the court may, in the interests of the physical and mental health of minors, support grandparents to visit the children appropriately. If the parents of the grandchildren have all died or are unable to raise them and they are raised by their grandparents, they can also claim necessary support expenses according to law.

IV. Suggestions for Protecting Rights and Interests

  • First, let's distinguish the path: When parents are alive and capable, grandparents can usually only influence the judgment as assisting caregivers; when parents die or are unable to raise their children, they can directly claim custody in accordance with Article 1074 Paragraph 2 of the Civil Code.
  • Objetive evidence of fixed long-term care: school attendance certificates, community residential committee certificates, vaccination and medical treatment records, and photos of daily pick-ups and drop-offs, forming a complete time chain.
  • Don't try to create facts by seizing or hiding children: the court generally disapproves of acts that interfere with the normal life of children, which may even harm your own claims.
  • Pay attention to the wishes of children aged over eight: The court will separately inquire about and respect their true wishes. Both the daily communication records and the children's written opinions are of reference value.
  • Synchronously evaluate alternative solutions such as visitation rights: Even if they cannot obtain custody, grandparents who provide long-term care for their grandchildren may still claim reasonable visitation rights under certain circumstances.

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