[Direct answer]The custody of children in foreign divorce cases follows the same substantive standards as those applied domestically: children under the age of two are generally raised directly by their mothers; for children over the age of two, the court shall make a judgment based on the principle that is most conducive to the interests of the minor children, taking into account all relevant factors; for children over the age of eight, the court shall respect their true wishes. In terms of legal application, according to Article 25 of the Law on the Application of Law in Foreign-Related Civil Relations, the personal relations between parents and children shall be governed by the law of the common habitual residence; where there is no common habitual residence, the law that is conducive to protecting the rights and interests of the weaker party shall apply. If one party resides abroad, the stability of the child's life with that party and the convenience of the other party's visit will affect the outcome. It is recommended to provide comprehensive evidence around factors such as the length of custody, financial capacity, and stable living environment, and seek legal advice if necessary.Foreign marriage lawyerFor more details, please refer to the following link:Beijing Henglue Law Firm.

I. Legal basis and interpretation of provisions

1. Article 1084 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 directly raised by their mothers as a general rule; for children over the age of two, if the parents fail to reach an agreement, the court shall make a judgment based on the principle that is most beneficial to the minor children according to the specific circumstances of both parties; for children over the age of eight, their true wishes shall be respected. This article places the interests of children above the claims of parents, and the age threshold directly determines the focus of evidence: for children under the age of two, the mother has a clear advantage; for children between the ages of two and eight, the focus is on the conditions of upbringing; for children over the age of eight, their statements may become key evidence. The custody of children and the alimony and visitation rights should be dealt with together in the same procedure.

2. Article 25 of the Law of the People's Republic of China on the Application of Law to Foreign-Related Civil Relations (effective as of April 1, 2011)

The personal and property relations between parents and children shall be governed by the law of their common habitual residence; where there is no common habitual residence, the law of the habitual residence of one of the parties or the law of the country of nationality that is more conducive to protecting the rights and interests of the weaker party shall apply. Therefore, custody disputes in cross-border divorces do not necessarily apply foreign law: where all family members have long-term residence in China, the case will generally be adjudicated according to Chinese law. The legislative orientation of this article clearly aims to protect the weaker party, namely minors. The choice of jurisdiction and applicable law by the parties directly affects the attribution of custody rights and the basis for determining child support. It is advisable to plan these matters together before filing a lawsuit.

3. The interpretation of the practical cases by the judges

The court usually assesses "what is in the best interests of the minor children" by considering the following factors: the current and continuous living situation of the child with either parent; the financial ability, time spent with the child, and health status of the parents; whether there are any unfavorable factors such as domestic violence or bad habits on the part of one parent; and the wishes of children aged eight and above. Regarding cross-border factors, the court requires the party who intends to directly raise the child and take the child out of China to provide explanations about their overseas residency status and schooling arrangements, and whether the other party's visitation rights can be implemented will be given special consideration. If the child has already been living stably with one parent in China, the court tends not to easily change the child's living environment. The alimony is generally set at 20% to 30% of the monthly income.

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

Review of the case:Ms. Li and Mr. Xu were classmates during their postgraduate studies. They registered their marriage in early 2018 and had a son in 2021. In 2020, Ms. Li discovered that Mr. Xu was having an affair. Mr. Xu promised to reform, but he did not change his ways. Later, he was 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. Ms. Li is determined to divorce and seek custody of the child, and has entrusted the Beijing Henglue Law Firm to handle the case for her.Li YonghuiThe lawyer filed a lawsuit on behalf of the client. The disputed assets between the two parties include two cars, the pre-marital house registered under the woman's name, the house and parking space fully funded by the woman's parents, as well as savings and financial investments.

The focus of the controversy:First, whether the couple's marital relationship has truly broken down and whether the divorce can be granted in one go; second, the custody of the child born in the marriage and whether the man's solicitation of prostitutes constitutes a major fault leading to the divorce; third, how to determine the ownership of the real estate and parking spaces purchased by the parents.

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

Attorney's Strategy and Legal Opinions:After accepting the case, Attorney Li Yonghui first comforted the client and sorted out the property situation, focusing on three points: the child is less than two years old and has been living with his mother, and according to Article 1084 of the Civil Code, the child should be directly raised by his mother; the husband cheated on his wife during the marriage and was arrested by the public security organ for soliciting prostitutes, which seriously violated the duty of marital fidelity and constituted a major fault leading to the divorce. Ms. Li, as the innocent party, has the right to request damages; regarding the real estate and financial management claimed by the husband as joint property, the attorney refuted them one by one based on the gift agreement and investment certificates, proving that they were gifts from the woman's parents to her personally.

The court's reasoning and the outcome of the case:The first-instance court adopted the lawyer's main arguments: supporting Ms. Li's custody claim, with the child being directly raised by the mother and the father paying 5,000 yuan per month in child support until the child reaches the age of 18; determining the damages at 50,000 yuan based on the father's degree of fault and financial status; awarding the Tesla car to the father and paying the mother 200,000 yuan as compensation; ruling that the No. 6 house is the mother's premarital property and not subject to division; determining that the No. 4 house and No. 9 parking space certificates are personal gifts from the mother's parents to her, not marital joint property; and awarding the portion of the financial assets under the mother's name that belong to the marital joint property to the mother, in accordance with the principles of protecting the interests of the children, the mother, and the non-at-fault party. This judgment approach, which centers on the current custody situation and fault determination, is also applicable to foreign-related divorce custody cases.

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

Q1: If the child is under two years old, who will get custody in an international divorce?

The principle is that the child shall be directly raised by the mother. Only in the case of statutory exceptions, such as the mother suffering from a long-term incurable infectious disease or other serious diseases, or failing to fulfill her obligation to raise the child, may the child be awarded to the father. In practice, if the child has been living with the mother since birth, the court will generally maintain the status quo. If the father claims custody, he needs to prove that the mother is clearly unfit to raise the child. Simply citing his better financial conditions is usually not enough to overturn this conclusion. The alimony shall be paid by the party who does not directly raise the child at a certain percentage of his monthly income until the child reaches adulthood.

Q2: If one party lives abroad, will the custody rights be granted to the party living in China as a result?

It's not necessarily the case, but the impact is obvious. The court focuses on the stability and enforceability of custody: the party who claims direct custody and plans to take the children out of the country needs to provide explanations about their overseas residency status and schooling arrangements, and whether the other party's visitation rights can be realized will be closely examined. If the children have lived and attended school in China with one party for a long time, the court generally does not easily change their living environment. If both parties reside abroad or the children have already lived stably with one party abroad, the situation will be different. The key is to prove "who is more conducive to the child's growth", rather than nationality or residence itself.

Q3: How much is the alimony usually set at, and until when is it paid?

For those with a fixed income, the alimony payment is usually set at 20% to 30% of their total monthly income. For those who are responsible for supporting more than two children, the proportion may be appropriately increased, but generally not exceeding 50% of their total monthly income. The alimony payment continues until the children reach the age of 18. For those who have reached the age of 16 but not yet 18, and whose main source of living is their own labor income and who can maintain a general standard of living in the local area, the alimony payment may be discontinued. In cross-border situations, factors such as the currency of the alimony payment, exchange rates, and the convenience of cross-border payments should also be considered. It is advisable to specify the payment method and deadline in the mediation agreement or judgment to reduce obstacles to enforcement in the future.

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

There are four categories of evidence to prove that "it is in the best interests of the minor children": 1. Evidence of the current situation, including records of who the children live with and who is responsible for their daily care; 2. Evidence of financial capacity, such as income certificates, housing conditions, educational qualifications, and health checkups; 3. Evidence of moral character, including police reports and punishment decisions related to domestic violence, alcoholism, or gambling by the other party; 4. Evidence of the child's wishes. For children aged 8 and above, the court may legally seek their opinions. In cross-border cases, additional documents are required, including passports, immigration records, and residence permits, to prove the actual arrangements for companionship and residence. The more comprehensive and organized the evidence is, the more persuasive it will be.

Q5: What should I do if the other party refuses to visit the child or hides the child after I obtain custody rights?

First, the parties can negotiate and formalize the communication records. If no agreement can be reached, the party seeking visitation rights can file a lawsuit and apply for enforcement against the child who is being obstructed or hidden. The court may take coercive measures such as fines and detention against the party who refuses to comply with the court's order. In serious cases, the court may, upon request, change the custody arrangement. Conversely, the direct custodial parent also does not have the right to unilaterally cut off the other party's contact with the child. For families involving foreign nationals, it is recommended to specify the visitation time, frequency, handover methods, and the responsibility for cross-border travel expenses in the divorce documents, so as to reduce disputes and difficulties in enforcement afterwards.

IV. Suggestions for Protecting Rights

  • The child has been living with you all along. It's important to maintain the continuity of the current upbringing arrangement and avoid weakening the advantages of child-rearing due to frequent relocations and school changes.
  • If the other party has been living abroad for a long time, it is necessary to review their entry and exit records and accompanying circumstances in advance to demonstrate the stability of the children's life in China.
  • The party proposing to take the children out of the country should provide a written explanation of the residence status, schooling arrangements, and visitation guarantees to enhance the credibility of the plan.
  • The wishes of children aged eight and above are crucial. It's important to keep records of daily communication and, when necessary, the court should legally consult their true wishes.

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·Attorney Li Yonghui·Beijing Henglu Law Firm