[Direct answer]When a child is under two years old at the time of divorce, the mother generally has the primary right to custody. 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 two years old shall generally be directly raised by the mother; where the child has reached the age of two and the parents fail to reach an agreement on custody, the people's court shall make a judgment based on the specific circumstances of both parties and in accordance with the principle of maximizing the interests of the minor child; where the child has reached the age of eight, the court shall respect the child's true wishes. Article 44 of the Interpretation of the Marriage and Family Chapter of the Civil Code of the People's Republic of China (effective January 1, 2021) further clarifies that if the mother suffers from a chronic infectious disease or other serious illness, fails to fulfill her duty of support despite having the ability to do so, or if the child is unsuitable to live with the mother for other reasons, and the father requests direct custody, the people's court shall support the request. Therefore, the presumption that "children under two years old should live with their mother" is a presumptive rule rather than an absolute conclusion. If the father wants to obtain custody rights, he must meet the statutory exceptions and bear the burden of proof. In practice, the fact of childcare during the separation period and who actually takes care of the child often have a greater impact on the judge's judgment than the level of income.

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)

Article 44 is an exception to the presumption that "children under the age of two shall live with their mother". It specifically stipulates that if the mother suffers from a chronic infectious disease or other serious illness that cannot be cured, if the child is not suitable to live with her, if the mother has the ability to raise the child but fails to fulfill her obligation to do so, or if the father requests that the child live with him for other reasons, the people's court shall support the father's request for direct custody. This article clearly assigns the burden of proof to the party claiming the exception, that is, the father cannot simply claim a change of custody based on higher income or better living conditions, but must prove that the mother meets the above-mentioned legal circumstances. Article 45 targets children who have reached the age of two, and lists the circumstances that should be given priority consideration, including having undergone sterilization surgery or losing the ability to bear children for other reasons, the child having lived with him for a longer period of time, the father having no other children while the other party having other children, and the child living with him being beneficial to his growth while the other party suffering from a serious illness.

3. Practical adjudication guidelines

From the perspective of trial practice, the court's handling of the custody of children under the age of two exhibits three characteristics. First, the presumption is very strong: as long as the mother does not have any of the statutory exceptions listed in Article 44, the father's request based on "higher income and larger housing" is usually not supported. Second, attention is paid to the established facts of custody: after separation, which party the children live with and who actually undertakes daily care are important practical considerations. A stable living environment formed with the help of the maternal grandparents over a long period of time is often used as a reason to support the mother. Third, objective evidence is required for exceptional circumstances: if it is claimed that the mother suffers from a serious illness, she generally needs to submit a diagnosis certificate from a medical institution, hospitalization records, or even a judicial appraisal opinion; if it is claimed that she fails to fulfill her custody obligations, evidence such as long-term absence, refusal to pay expenses, and abandonment must be provided.

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

Review of the case:Xiaoya and Xiaolei registered their marriage in November 2013. After marriage, they had an elder son, Xiaoguang (born in September 2015), and an elder daughter, Xiaoyang (born in October 2018). Both children have been living with Xiaoya. Since the birth of their eldest son, Xiaolei has been away for a long time to run his clothing business, and the couple has been living apart for more than ten years, with their feelings growing cold. During the separation, Xiaoya alone took care of the children's daily life, academic guidance, medical treatment, and psychological support, while Xiaolei failed to fulfill his duty of support and upbringing. Xiaoya entrusted a lawyer to prepare for a divorce lawsuit, but unexpectedly, Xiaolei filed a lawsuit first, demanding a divorce and claiming that the children born in the marriage should be raised by him, while the son should be raised by Xiaoya. At the same time, Xiaolei also demanded that Xiaoya pay 1,000 yuan in monthly alimony. Xiaoya, who was originally the plaintiff, has now become the defendant and faces the risk of being separated from her children.

The focus of the controversy:The first focus is whether it is possible to break through the common "one person raising one child" balance judgment practice in judicial practice, and strive for both children to be directly raised by the woman; the second focus is how to provide evidence to establish the fact that the couple's relationship has broken down and the man has long neglected his duty of support; the third focus is who should bear the credit card debt under Xiaoya's name.

Attorney's Strategy and Legal Opinion:The attorney in charge formulated a three-pronged approach focusing on "emotional breakdown + parental custody advantage + debt attribution". Firstly, building an evidence chain around the emotional breakdown, organizing travel records, residence certificates, WeChat chat records, and children's education and medical records to prove that the couple has been separated for over ten years and that the husband has been absent from family life for a long time, which meets the requirements for determining emotional breakdown as stipulated in Article 1079 of the Civil Code of the People's Republic of China. Secondly, based on the principle of "the best interests of the minor children" in Article 1084(3) of the Civil Code of the People's Republic of China, it argues that the wife has formed a stable parenting relationship with the children by living together for a long time, while the husband has been operating in a different location for a long time and lacks stable care conditions. It also cites the provisions of Article 45 of the Interpretation of the Marriage and Family Code on giving priority to considering "the children living with their mother for a longer time". Thirdly, regarding the debt assumption, it claims that the credit card under Xiaoya's name was opened by the husband using her ID card and has been used for his personal affairs for a long time, so the debt should not be borne by Xiaoya.

The court's reasoning and case handling results:The court adopted the core opinion put forward by the attorney regarding the principle of "the best interests of the minor children", breaking through the common "balanced" judgment approach in judicial practice, and dissolved the marriage relationship through mediation, with the woman obtaining custody of the two children and the man paying child support according to law. In terms of property division and debt assumption, a mediation result favorable to the woman was also reached. This case shows that "one child per parent" is just a common way of handling cases in practice, not a judicial rule. When one party has been raising the children for a long time and the other party's objective conditions are insufficient, it is also legally justified for the same party to directly raise both children.

This case is handled by Beijing Henglu Law Firm.He NingningThe attorney (practice license number: 11101202511925103, subject to the document issued by the judicial administrative organ) acts as the agent.

III. Frequently Asked Questions

Q1: Are children under the age of two always awarded to their mothers in custody disputes?

This is not an absolute rule. "The principle of being directly raised by the mother" is a presumptive rule established in Article 1084, Paragraph 3 of the Civil Code of the People's Republic of China (effective from January 1, 2021). When there are no statutory exceptions for the mother, the court generally rules that the child should live with the mother. However, according to Article 44 of the Interpretation (I) of the Marriage and Family Code, if the mother suffers from a chronic infectious disease or other serious illness, fails to fulfill her duty of support despite having the ability to do so, or if the child is truly unsuitable to live with the mother for other reasons, and the father requests to directly raise the child, the people's court shall support such request. Therefore, the presumption is very strong, but it is not irrefutable.

Q2: If my income is higher than the other party's and I own a larger house, can I secure custody of the child under the age of two?

Generally, they can be divided into three categories. First, evidence of child-rearing: proof of the child living in the community or property where the parent resides, daily care records, medical accompaniment and education payment receipts, and a statement of assistance from grandparents in childcare. Second, evidence of child-rearing ability: proof of stable work and income, proof of living conditions, and materials facilitating schooling. Third, evidence of the other party's unsuitability: records of long-term absence, proof of refusal to pay child support, proof of serious illness, and evidence of bad habits or violent behavior. For children aged eight and above, they can also submit a written expression of their true wishes or apply to the court for a hearing of their opinions.

Q3: What evidence do I need to prepare?

There are mainly three categories: evidence of child-rearing, such as records of residence and care, and certificates of schooling and medical treatment; evidence of child-rearing ability, such as income, residence, and health certificates; evidence that the other party is unqualified, such as long-term absence, refusal to pay child support, serious illness, or materials about bad habits. The wishes of children over the age of eight also need to be fixed.

Q4: During the separation, the child has been with me all the time. Is this fact useful in any way?

The amount of child support shall be determined based on the actual needs of the children, the financial capacity of both parents, and the local actual living standards. For those with fixed incomes, the payment shall generally be at a rate of 20% to 30% of their total monthly income. For those supporting more than two children, the amount may be appropriately increased, but generally not exceeding 50% of their total monthly income. If the other party refuses to pay, the parties may negotiate, file a lawsuit, or apply for enforcement; if the other party still fails to perform after the judgment takes effect, the parties may apply to include them in the list of dishonest people and restrict their high-consumption activities. For further consultation, please contact us viaBeijing Henglu Law FirmLeave a message on the official website. If you need further assistance, you can contact us viaBeijing Henglue Law FirmLeave a message on the official website.

Q5: How is child support calculated? What should I do if the other party refuses to pay it to me?

The alimony shall be determined according to the actual needs of the children, the parents' ability to pay, and the local living standards. For those with fixed incomes, the alimony shall generally be paid at 20% to 30% of their total monthly income. If the parents have to support more than two children, the alimony may be appropriately increased but not exceed 50%. If the alimony is refused to be paid, the other party may file a lawsuit or apply for enforcement, and if necessary, apply for inclusion in the list of dishonest people.

IV. Suggestions for Protecting Rights and Interests

  • From the date of separation, fully preserve the evidence of living with the children, including proof of residence, records of picking up and dropping off the children and taking them to the hospital, payment receipts for education, and photos of daily care, to form a continuous proof.
  • For those under the age of two who are disputing custody rights, the focus should be on organizing evidence based on statutory exceptions, rather than listing income and housing advantages, to avoid the direction of evidence collection deviating from the court's review focus.
  • Pay attention to the corresponding relationship between the time nodes of prosecution and judgment and the age of the children. If necessary, file a case as soon as possible to avoid the presumption rules changing due to the passage of time.
  • If the child has reached the age of eight, it is necessary to communicate with the child calmly in advance and preserve evidence of their true wishes, while avoiding any words or actions that could be construed as improper guidance.
  • For those who claim that the other party should bear the alimony, they should simultaneously prepare the income certificates of both parties and the actual expenditure vouchers of the children, so as to leave room for the calculation of the proportion and the subsequent increase in alimony.

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 for Family Disputes·Attorney He Ningning·Beijing Henglue Law Firm