[Direct answer]The advantage of seeking child custody rights comes from the principle of "the best interests of minor children". According to Article 1084 of the Civil Code (effective January 1, 2021), children under the age of two are generally raised directly by their mothers; for children over the age of two, the court will make a judgment based on the principle of the best interests of minor children; and for children over the age of eight, their true wishes should be respected. In combination with Article 46 of the Judicial Interpretation of the Marriage and Family Code (I), long-term personal care, stable living and schooling environments, complete fostering conditions, and situations such as the other party's infidelity and domestic violence that are detrimental to the children's growth are all key plus points. Before litigation, it is necessary to fix the daily care records, income and housing proofs, and evidence of the other party's fault as early as possible. Beijing Henglue Law Firm\nFamily Dispute Lawyer TeamThe living conditions of the child can be assessed. For more details, please refer to the following link:Beijing Henglu Law Firm.

I. Legal basis and interpretation of provisions

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

The article establishes three rules for child custody after divorce: for children under the age of two, the mother shall have the primary custody, taking into account the natural dependence of infants and young children on their mothers; for children over the age of two, if no agreement can be reached, the court shall, based on the parents' ability and conditions for child-rearing and the continuity of the children's lives, make a judgment in accordance with the principle that is most beneficial to the minor children; for children over the age of eight, their true wishes should be respected. The legislative purpose is to put the children's interests above the parents' disputes, so "who is more suitable and stable" is far more important than "who has more money". The evidence should also focus on the children's current living conditions and care inputs.

2. Article 46 of the Interpretation 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 (I) (effective January 1, 2021)

When both parents request to directly raise a child who has reached the age of two, the following circumstances of one party may be given priority consideration: having undergone sterilization surgery or losing the ability to reproduce for other reasons; the child having lived with them for a longer period of time, and changing the living environment being obviously detrimental to the child's healthy growth; having no other children while the other party has other children; the child living with them being conducive to their growth, while the other party suffering from a chronic infectious disease or other serious diseases, or having other circumstances that are not conducive to the child's physical and mental health and are not suitable for living together. This article transforms the "actual state of raising the child" into claimable priority conditions, which is a list of evidence organization.

3. Practical judicial interpretation (the main line of the judge's discretionary judgment)

There are several main principles in the judge's discretion: the most important thing is the stability of the current living situation, who is taking care of the children on a daily basis, and where the children go to school and receive medical treatment. To change the current situation, there needs to be particularly compelling reasons; secondly, the judge compares the amount of time spent with the children and the conditions of child-rearing. High income does not necessarily give an advantage; if a party's faults, such as infidelity, domestic violence, or gambling, affect the children's growth environment, it will significantly reduce their score; children over the age of eight will be interviewed separately by the judge. If the parents' child-rearing conditions are basically the same and the children have been living with their grandparents for a long time and the grandparents are able to assist in child-rearing, it can also be considered a priority factor according to Article 47 of the Interpretation (I). The most common pitfall is to only attack the other party's faults but not prove that they are the main caregivers.

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

Review of the case:Ms. Li and Mr. Xu were classmates in graduate school. After they started dating, they registered their marriage in early 2018 and had a son, Xu *1, in 2021. Due to a lack of understanding before marriage, the couple often argued after getting married. In 2020, Ms. Li discovered that Mr. Xu had been having an affair. Mr. Xu immediately promised to reform himself, 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. Ms. Li firmly proposed to divorce and seek custody of the child, and entrusted Beijing Henglue Law Firm to handle the case for her.Li YonghuiThe lawyer filed a lawsuit on behalf of the client. Xu agreed to divorce but requested that the child be raised by him. The parties also had disputes over two cars, the woman's premarital house, the house fully funded by her parents and signed a gift agreement, and a parking space worth 800,000 yuan, among other assets.

The focus of the controversy:First, whether the couple's marital relationship has truly broken down and whether a divorce can be granted in one judgment; Second, the custody of the couple's children, and whether the man's solicitation of prostitutes constitutes a major fault leading to the divorce; Third, the ownership of the house and parking space funded by the parents and the division of the joint property.

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 prostitution and infidelity constitute a major fault and he should pay damages; Mr. Xu agrees to the divorce, but requests that the child be raised by him, and claims that some real estate, parking spaces, and financial assets under the woman's name should be divided as marital joint property.

Attorney's Strategy and Legal Opinion:After accepting the case, Attorney Li Yonghui fully understood the client's demands and sorted out the evidence, putting forward three points of legal advice: Firstly, both parties acknowledged that their marriage had broken down and agreed to divorce, so the divorce should be granted according to law; Secondly, the child born in the marriage is less than two years old. According to Article 1084 of the Civil Code, the child should be raised directly by the mother, and since the child has been living with the mother all along, the mother's direct custody should be supported; Thirdly, the man was caught by the public security organ for soliciting prostitutes during the marriage, which was an illegal act and a serious violation of the duty of marital fidelity. This constituted a major fault leading to the divorce, and the woman, as the non-at-fault party, has the right to request damages according to Article 1091 of the Civil Code; Regarding the man's claim that the real estate and financial assets were jointly owned, the attorney refuted this claim one by one with evidence such as the gift agreement and investment certificates.

The court's reasoning and the outcome of the case:The first-instance court adopted the lawyer's main arguments: determining that the man's prostitution constituted a major fault and that the marriage had indeed broken down, it ruled a divorce in one judgment; the child would be directly raised by the woman, and the man would pay 5,000 yuan in monthly alimony until the child reaches the age of 18; considering the degree of fault and the man's financial status, the court determined that the man should pay 50,000 yuan in damages to the woman. As for property: the house registered under the woman's name (No.6) was deemed premarital property and would not be divided; the house (No.4) and the parking space (No.9) were sufficiently proven to be gifts from the woman's parents to her personally, and thus not marital joint property; the Tesla registered under the man's name would belong to him, and he would pay the woman 200,000 yuan in compensation; the portion of the marital joint property would 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; and the litigation fees would be borne by the man. This case shows that the main caregiver's identity and evidence of fault are the dual cornerstones of custody rights and damages compensation.

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

III. Frequently Asked Questions

Q1: If the child is under two years old, does the divorce necessarily go in favor of the mother?

In principle, yes. According to Article 1084 of the Civil Code, it is a principle that children under the age of two are directly raised by their mothers, unless the mother suffers from a chronic infectious disease or other circumstances that are not suitable for cohabitation. In such cases, the court generally awards custody to the mother. In this case, the court supported the woman according to this rule. Therefore, when the child is young, the mother's advantage is most obvious. She should try to take care of the child herself and keep records of feeding and medical treatment, so as to consolidate the basis for applying the "mother's direct custody" rule.

Q2: The child has already reached the age of two. What conditions offer the most advantages?

The court shall determine in accordance with the principle of the best interests of the minor children, and may prioritize the following claims: the child has lived with him/her for a long time, and changing the environment would obviously be detrimental to the child; the other party has undergone sterilization surgery or lost the ability to have children; the other party has no other children, while the applicant has other children; the other party suffers from diseases or has situations such as domestic violence or extramarital affairs that are detrimental to the physical and mental health of the children. Daily care, continuity of schooling, and time spent with the children are the most direct lines of evidence, which carry more weight than simple income comparisons.

Q3: At what age can a child choose who they want to live with on their own?

For children who have reached the age of eight, their true wishes should be respected. In practice, judges will interview the children separately to avoid parents' presence and pressure; the wishes of children aged two to eight are also a reference factor, but not decisive. For the child's opinion to be effective, it is premised on stable daily companionship and care. Temporary guidance or even pressure will leave a negative impression on the judge and affect the overall evaluation of the child's rearing conditions.

Q4: What evidence do I need to prepare to fight for custody rights?

There are five common types of evidence: daily care records (picking up and dropping off children, cooking, medical payment receipts, screenshots of communication in parent groups); proof of residence and schooling; proof of financial capacity, such as income and housing; identity documents, such as the child's birth certificate; and evidence showing that the other party is detrimental to the child's growth, such as police reports and administrative punishment decisions. In this case, the record of the man being arrested by the public security organ for soliciting prostitution simultaneously supported the claims of custody rights attribution and damages compensation.

Q5: How much does a custody case cost, and how long does it take?

For divorce cases that do not involve property division, the acceptance fee is charged per case; for those involving property, an additional fee is charged based on the value of the subject matter. Cases applying the summary procedure are generally concluded within three months, while those applying the ordinary procedure are typically concluded within six months, and cases resolved through mediation are settled even faster. The outcome of custody disputes primarily depends on the living conditions and the quality of the evidence. It is usually more valuable to invest the anticipated costs in evidence collection and professional representation rather than simply comparing the prices offered by different lawyers.

IV. Suggestions for Protecting Rights

  • During the stage of intensified conflicts or separation, parents should still try their best to maintain the continuity of the children's daily care and schooling. This is the "status quo" that judges value most.
  • The system fixes the evidence of care: pick-up and drop-off records, medical payment slips, and screenshots of parent groups are archived by time to form a complete chain of care.
  • When collecting evidence of the other party's infidelity, domestic violence, gambling, and other misconduct, it is important to ensure that the methods used are legal. Police reports, punishment decisions, and repentance letters have the highest evidentiary value.
  • When filing a lawsuit, claim custody, alimony, and damages at the same time to avoid secondary litigation. For specific case solutions, please consult Henglu Law Firm\nFamily Dispute Lawyer Team.

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·Attorney Li Yonghui·Beijing Henglue Law Firm