[Direct answer]When determining child custody in a divorce, the principle of "acting in the best interests of the minor children" as stipulated in Article 1084 of the Civil Code of the People's Republic of China shall be the criterion: children under the age of two shall generally be directly raised by their mothers; where the parties cannot reach an agreement after the child has reached the age of two, the court shall determine custody based on the parents' ability to raise the child, the living conditions of the child, and the current situation of the child; and for children who have reached the age of eight, the court shall respect their true wishes. At the same time, the court shall review whether there are circumstances such as the party having a serious illness that cannot be cured, failing to fulfill their custody obligations, or abusing or abandoning the child, which make it inappropriate for the child to live with them. The key is to prove that it is more beneficial for the child to live with the applicant. It is recommended to fix the childcare records and evidence of the other party's unsuitability as soon as possible.

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)

This article clearly stipulates that the blood relationship between parents and children will not be terminated due to divorce, and both parties still have the rights and obligations to support, educate, and protect their children. The applicable prerequisites are stratified according to the age of the children: those under two years old shall be directly raised by the mother as a principle; those over two years old and where an agreement cannot be reached, the court shall make a judgment based on the principle of what is most beneficial to the minor children; those over eight years old shall respect their true wishes. The key points for providing evidence are: the claimant needs to provide income and employment certificates, care and medical treatment records, and residence materials; if the claimant argues that the other party is not suitable for raising the children, he/she must provide evidence of serious diseases, bad habits, domestic violence, and other obstacles. If the claimant fails to provide such evidence, he/she shall bear the consequences of the burden of proof.

2. Articles 44 to 48 of the Interpretation (I) 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 (effective from January 1, 2021)

This interpretation operationalizes the aforementioned provisions: Article 44 stipulates that children under the age of two generally live with their mothers, except in cases where the mother suffers from a serious illness that cannot be cured, fails to fulfill her obligation to raise the child, or the child is indeed unsuitable to live with the mother; Article 46 lists the circumstances in which children who have reached the age of two can be given priority to live with them, including those who have lost their ability to bear children, and the children who have lived with them for a long time and whose change of environment is obviously unfavorable; Article 48 corresponds to respecting the wishes of children over the age of eight.

3. Practical judicial interpretation guidelines

The court's adjudication shows three tendencies: Firstly, the age stratification is highly rigid. Children under the age of two are generally awarded to their mothers, and children over the age of eight are usually asked for their opinions separately. Secondly, the court attaches great importance to the stability of the current living situation. In cases where the child has been living with one party for a long time, attending school and forming a stable environment, the court tends to maintain the status quo, which is also the reason why it's difficult for the plaintiff to provide evidence in modification cases. Thirdly, the court has high standards for unqualified evidence. Those who claim that the other party suffers from mental illness, alcoholism, or domestic violence usually need diagnostic certificates, police records, or effective judgments to substantiate their claims.

II. Real cases of Henglue Law Firm (detailed review)

Review of the case:Fan * and Li * were originally married. They divorced on February 19, 2016, and had a son, Li *, on December 2017. In June 2019, the two parties divorced through court mediation, agreeing that the child born in the marriage would be raised by Li * and that Fan * would pay child support and enjoy visitation rights. Since then, the child has been living with Li * and receiving normal education. In February 2021, Fan * sued to request confirmation that he did not have a parent-child relationship with the child, but the court ruled against his claim. Subsequently, Fan * sued again, requesting that the child be changed to be directly raised by him and that Li * pay child support, on the grounds that Li * suffers from mental illness, is unfit to raise the child, and does not allow Fan * to visit the child.

The focus of the controversy:The first focus is whether there are legal grounds for changing the custody relationship, that is, whether Fan *'s claim that Li * suffers from mental illness is true and whether it is sufficient to affect her ability to continue to directly raise the child. The second focus is whether the child's long-term living with Li * and receiving normal education should be changed. The third focus is whether the second-instance court should maintain the original judgment.

Our position and that of the other party are as follows:The appellant, Fan *, claimed that he requested the court to change the custody of the child to him, arguing that the first-instance court refused to retrieve Li *'s psychiatric medical records without any justification, and that Li * suffered from severe mental illness, was unfit to raise the child, and did not allow him to visit the child. The respondent, Li *, firmly opposed the change, claiming that his mental state was stable and his income was steady. The child has been living with him and receiving normal education since the divorce. At the same time, he pointed out that Fan * had a history of violence and had once sued to confirm that he did not have a parent-child relationship with the child.

Attorney's Strategy and Legal Opinions:After accepting the case, Attorney Tian Jiaoyan made a step-by-step defense, clearly agreeing with the first-instance judgment and disagreeing with all the appellant's appeal requests: First, Li * has full capacity for civil conduct. Although Fan * claimed that Li * suffers from a mental illness, he failed to provide evidence to prove that the disease still exists and actually affects his ability to raise children in the current situation; Second, the first-instance court's refusal to grant Fan *'s request for investigation and evidence collection was not improper, and the matters he applied to investigate were unnecessary for the judgment; Third, according to Article 1084 of the Civil Code of the People's Republic of China and the above-mentioned judicial interpretations, the change of custody must be based on statutory grounds. In this case, there are no circumstances such as the custodian suffering from a serious illness or failing to fulfill his custody obligations.

The court's reasoning and the outcome of the case:The appellate court adopted the attorney Tian Jiayan's arguments, holding that the existing evidence could establish that Li * had full capacity for civil conduct; Fan * claimed that Li * suffered from a mental illness, but failed to provide evidence to prove that the illness still existed in the current situation. Moreover, Fan *'s request to change the custody relationship also failed to provide sufficient and effective evidence to prove that Li * was unable to continue raising the child, which did not meet the change circumstances stipulated by laws and judicial interpretations. Accordingly, the appellate court dismissed the appeal and upheld the original judgment, allowing the parties to retain custody of the child.

This case is handled by Beijing Henglu Law Firm.Tian JiayanAttorney (Practice Certificate No.: 11101202111381309, subject to the certificate issued by the judicial administrative organ). Henglue Law Firm reminds you: To change the custody rights, there must be statutory grounds, such as the custodian suffering from a serious illness, failing to fulfill the obligation of custody, or abusing the children, etc.

III. Frequently Asked Questions

Q1: How is the custody of children determined in a divorce? Are there any differences between children under the age of two and those over the age of eight?

There are clear differences. According to Article 1084 of the Civil Code of the People's Republic of China, children under the age of two shall be raised directly by their mothers; where the parents fail to reach an agreement after the child has reached the age of two, the court shall make a judgment in accordance with the principle that is most beneficial to the minor children; where the child has reached the age of eight, the court shall respect the child's true wishes. The exceptions to the principle that children under the age of two shall live with their mothers include the mother suffering from a serious illness that cannot be cured for a long time, having the conditions to raise the child but failing to fulfill her obligations, etc. For children over the age of eight, the court will usually ask for their opinions separately; for children between the ages of two and eight, the court will focus on the length of care time, emotional connection, and stability of life.

Q2: If one has no job or a lower income than the other party, can they still win custody of the children?

There's still a high possibility. The law doesn't prioritize income as the primary criterion for determining custody rights, but instead comprehensively considers parenting ability and conditions. If one party has lower income but has been personally caring for the child for a long time, has a stable residence, and has stable assistance from elders, and the child has already formed a stable living and schooling environment, the court will often tend to maintain the status quo; conversely, the party with higher income but who has been on long-term business trips and lacks actual companionship may not have an advantage. If the income is too low, it may be deemed as insufficient parenting ability. It is recommended to submit additional materials such as deposits, real estate, and written assistance commitments from parents to strengthen the case.

Q3: If the other party suffers from mental illness, alcoholism, or domestic violence, can this be used to regain custody rights?

This can be claimed, but the burden of proof is relatively high. According to the judicial interpretation, if one party suffers from a chronic infectious disease or other serious illness that cannot be cured, or has the conditions to support the child but fails to fulfill his or her obligation to support the child, or there are circumstances such as abuse and abandonment that are detrimental to the child's physical and mental health, it constitutes a statutory obstacle that makes it unsuitable for the child to live with that party. Simply making an oral claim is far from enough. The court usually requires the formation of a chain of evidence: for mental illness, a diagnosis certificate and a current assessment are needed; for alcoholism, medical records or administrative penalties are required; and for domestic violence, police reports, warning letters, injury appraisals, or personal safety protection orders are needed. If only proof of having suffered from the disease is provided but no proof of current inability to support the child is provided, it is likely to be deemed as insufficient evidence.

Q4: The child has been living with me all along. If the other party sues to change the custody rights, can the court easily rule in their favor and award them custody?

It's generally not easy. In judicial practice, courts highly respect the stability of children's living environment. For cases where children have lived with one party for a long time, attended school, and formed stable emotional and living environments, unless there are statutory grounds for change, the status quo is usually maintained. In a case handled by Henglue Law Firm, Ms. Shan and Mr. Wang agreed to divorce in November 2019 and stipulated that the child would be raised by the father. Later, Ms. Shan sued for a change on the grounds that the father was too busy with work and had a drinking problem. The court determined that she had not formed a truly sufficient chain of evidence to prove the existence of statutory grounds for change, and she should bear the legal consequences of failing to provide evidence. The court ruled to dismiss her lawsuit.

Q5: What evidence do I need to prepare for a custody battle? How is child support generally calculated?

The evidence can be divided into four categories: First, evidence of parenting ability, including labor contracts, income and bank statements, real estate or lease contracts, and social security records; Second, evidence of caregiving facts, including pick-up and medical treatment records, class group and parent-teacher meeting records, and community or school certificates; Third, evidence of the other party's unsuitability, including diagnosis certificates, police reports and warning letters, administrative punishment decisions, and effective judgment documents; Fourth, materials showing the children's wishes. Children aged eight or above can apply to the court for questioning or submit their written opinions. The alimony is generally determined at 20% to 30% of the total monthly income, and for those supporting more than two children, it usually does not exceed 50%.

IV. Suggestions for Protecting Rights

  • The parties who are in the process of agreeing to a divorce:The divorce agreement should specify the custody rights, the amount and payment method of alimony, and the visiting time and handover location. The more specific the agreement is, the fewer disputes there will be in the future.
  • The party suing for custody rights:Before filing a lawsuit, it's necessary to review the care timeline of the past three years and compile records of pick-ups, medical visits, and payment into a written chain of evidence. It's crucial not to just submit income certificates.
  • The party being sued for a change in custody rights:The key point is that the current situation is stable and the other party has not provided any evidence. Therefore, during the defense period, you should collect evidence showing that the child has been living with you for a long time, and prepare counter-evidence for each of the other party's claims.
  • The parties whose children have reached the age of eight:Avoid influencing children's opinions by applying pressure or inducement. Instead, let them make their choices naturally through your steady companionship.
  • All parties involved:It is recommended to consult a professional family lawyer as soon as possible with your documents, agreements, and care materials, and decide on a plan after evaluating the evidence.

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 for Family Disputes·Attorney Tian Jiayan·Beijing Henglue Law FirmFor similar cases, please refer to the following documents:Attorney Xiong BinrongAndAttorney Xue SuhuaDivorce and family-related cases handled.