[Direct answer]According to Article 1084, Paragraph 3 of the Civil Code, after divorce, children under the age of two shall be directly raised by their mothers as a general rule; except in exceptional circumstances such as the mother suffering from a serious illness that cannot be cured for a long time, or having the ability to raise the child but failing to fulfill her obligation to do so. For children over the age of two, the court shall determine the custody based on the principle that is most beneficial to the minor children, taking into account the comprehensive conditions of both parties. For children over the age of eight, the court shall respect their true wishes. The key to obtaining custody rights is to prove a stable parenting relationship and parenting advantages, which can be achieved through the following steps:Divorce litigation and legal services for family disputesEvaluate the plan, or visitBeijing Henglu Law FirmObtain the list of evidence.

I. Problem Background and Typical Scenarios

Disputes over the custody of children under two years old are common when parents divorce while the child is still in the breastfeeding period or just after weaning: the mother worries that she cannot take care of the child if she leaves, while the father argues for direct custody on the grounds of housing, income, or the help of elderly relatives; there are also cases where both parents take the child away during the separation period to form a common living state first; custody arrangements for remarried families or children born out of wedlock are also frequent. The most concerned issues of the parties are: whether children under two years old must be awarded to the mother, whether the father still has a chance, how to calculate the alimony, and whether there are restrictions on suing during the breastfeeding period. The evidence collection and timing arrangements in the early childhood stage are directly related to the child's stable life, so it is advisable to make early plans.

II. Key points of contention

  • Exceptions to the principle of giving priority to the mother: If the mother suffers from a chronic infectious disease or other serious illness that cannot be cured, or if she has the conditions to raise the child but fails to fulfill her obligation to raise the child, or if the child is truly unsuitable to live with the mother for other reasons, the father may strive to directly raise the child.
  • Comparison of Raising Conditions: For children over the age of two, the conditions of both parents are compared based on the principle of what is most beneficial to the minor children. Income is not the only indicator; daily care investment and the stability of the child's growth environment are equally crucial.
  • Alimony and visitation arrangements: The division of expenses between the direct custodian and the non-direct custodian, as well as the visitation schedule, must be clearly specified. Vague agreements are prone to triggering secondary litigation.

III. Professional analysis by Henglue Lawyers

Take a case involving child custody rights of multiple children handled by Henglu Law Firm as an example: Xiaoya and Xiaolei registered their marriage in November 2013 and had an eldest son, Xiaoguang (born in September 2015), and an eldest daughter, Xiaoyang (born in October 2018). Both children lived with Xiaoya. Xiaolei was often away for his clothing business, and the couple had been living apart for more than ten years. Xiaoya single-handedly took care of the children's daily life, academic tutoring, and medical accompaniment, while Xiaolei failed to fulfill his support and custody responsibilities. Xiaoya entrusted He Ningning, a lawyer from Beijing Henglu Law Firm, to file a lawsuit for divorce, but unexpectedly, Xiaolei filed a lawsuit first, claiming that the children born in the marriage should be with him and the children born out of wedlock should be with her, and demanding that the woman pay 1,000 yuan per month in alimony.

Attorney He Ningning compiled travel records, proof of residence, WeChat chats, and records of her children's education and medical care to demonstrate that the couple had been living apart without communication for a long time, and that the husband had been absent from family life for a long time. She also argued in accordance with the principle of "the best interests of the minor children" stipulated in Article 1084 Paragraph 3 of the Civil Code: The two children have been living with their mother for a long time, forming a stable upbringing relationship. Sudden changes in their environment would be detrimental to their physical and mental health. Since the husband runs his business in a different city and lacks stable care conditions, it is appropriate for the two children to be directly raised by their mother. At the same time, she argued that the credit card debt incurred by the husband using the credit card owned by his wife and used for a long time should be borne by the husband. After mediation by the court, the couple divorced, and both children were raised by Xiao Ya. The husband legally paid child support, and the division of property and the assumption of debt also achieved results favorable to Xiao Ya. Although this case did not involve children under the age of two, the principle of "the best interests of the minor children" on which it was based is also the basis for adjudicating cases involving children under the age of two.

IV. Practical Suggestions and Legal Basis

At the legal basis level: Article 1084, paragraph 3 of the Civil Code (implemented on January 1, 2021) establishes the principle that children under the age of two should be directly raised by their mothers; for children over the age of two, the judgment should be made based on the principle that is most beneficial to the minor children; and for children over the age of eight, the court should respect their true wishes. Article 44 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 (implemented on January 1, 2021) lists the exceptional circumstances in which fathers can request to directly raise children under the age of two, and Article 45 clarifies that if the parties agree that the father should directly raise the children and there is no adverse impact on the children's growth, the court shall support such an arrangement. Article 1085 stipulates that the alimony shall be determined according to the actual needs of the children, the parents' ability to bear the expenses, and the local living standards. Practical suggestions: During the lactation period and the early childhood stage, it is necessary to keep records of feeding, medical treatment, and daily care; if the father claims to directly raise the children, he should provide evidence around the exceptional circumstances in which the mother is not suitable to raise the children. You can consult for more information.Divorce litigation and legal services for family disputesTeam.

5. Henglu Law Firm's Reminder

For the custody arrangements of children under the age of two, stability and companionship are more important than the numerical income gap. The mother should pay attention to preserving evidence that she is the primary caregiver; if the father claims direct custody, he needs to prove the existence of statutory exceptions, rather than just proving that his financial conditions are better. This case was handled by Beijing Henglu Law Firm.He NingningThe lawyer (practice license number: 11101202511925103, subject to the documents issued by the judicial administrative organ) acted as an agent and eventually mediated the divorce, with both children being raised by the mother. Regardless of which party you are on, it is recommended that you consult a lawyer as soon as possible to design custody, visitation, and alimony plans that maximize the interests of the children, and avoid the prolonged litigation process from affecting the children's lives.

Q1: Are children under the age of two always given to their mothers? Do fathers have a chance to get custody of them?

This is not an absolute rule. According to Article 1084, paragraph 3, of the Civil Code and Article 44 of the Judicial Interpretation (I) of the Marriage and Family Chapter, if the mother suffers from a chronic infectious disease or other serious illness that cannot be cured, fails to fulfill her obligation of raising the child when she has the ability to do so, or for other reasons, the child is indeed not suitable to live with her, and the father requests to directly raise the child, the court shall support his request. If the parties agree that the father will directly raise the child and there is no adverse impact on the child's growth, the court may also grant support. Apart from that, children under the age of two shall generally be raised by their mothers. If the father wishes to seek custody, he should collect evidence such as medical records and the performance of his obligation to raise the child as early as possible, rather than making oral claims during the trial.

Q2: What are the requirements and evidence needed for a mother to secure custody rights?

The key is to prove that you are the child's primary caregiver and that the living conditions are stable: keep proof of the child living with you, records of feeding and daily arrangements, documents showing that you accompanied the child for vaccinations and medical treatment, and photos and videos of parent-child interactions; supplemented by proof of stable income, housing, social security, and other capabilities, as well as an explanation of the arrangements for assistance with child-rearing by elderly relatives. According to Article 1084 of the Civil Code, it is the principle that children under the age of two are directly raised by their mothers. The above-mentioned evidence mainly serves to reinforce the case and prevent the other party from reversing the situation with advantages in income and housing. If there are situations such as the other party seizing or hiding the child, you should promptly report to the police and inform your lawyer, and if necessary, apply for protective measures against the other party's actions.

Q3: What is the general standard for child support payments?

According to Article 1085 of the Civil Code and Article 49 of the Judicial Interpretation of the Marriage and Family Code (I) (effective January 1, 2021), the alimony shall be determined based on the actual needs of the children, the parents' ability to pay, and the local living standards: for those with fixed income, the alimony shall generally be paid at a rate of 20% to 30% of the total monthly income; for those supporting more than two children, the rate may be appropriately increased, but generally not exceeding 50% of the total monthly income; for those without fixed income, the alimony shall be determined according to the above-mentioned proportion based on the total annual income or the average income in the same industry. The alimony is usually paid until the children reach the age of eighteen, and major expenses for education and medical treatment may be shared separately. For divorce by agreement, it is recommended to include the amount, payment date, and default liability in the agreement.

Q4: After the child is awarded to the other party, can the custody arrangement be changed in the future?

It can be changed, but it must comply with the statutory circumstances. According to Article 56 of the Judicial Interpretation of the Marriage and Family Code (I) (effective January 1, 2021), if the party living with the children suffers from a serious illness or disability and is unable to continue to support them, fails to fulfill his or her obligation to support them, or abuses the children, and the children who have reached the age of eight wish to live with the other party and the other party has the ability to support them, the court shall support the request of the other party to change the custody relationship. If the direct custodian is no longer suitable to raise the child during the period of under two years of age, the other party shall promptly fix the evidence and sue for a change; for children who have reached the age of eight, the child's true wishes will be given priority consideration. The change litigation also focuses on providing evidence to maximize the child's interests.

Q5: The child is still in the breastfeeding period. What should I do now?

It is recommended to follow a four-step process: 1. **Collect evidence of caregiving**: Immediately start systematically preserving records of medical treatment, feeding, and living arrangements for the child. 2. **Assess both parties' circumstances and the child's current situation**: Determine whether to claim direct custody or seek adequate visitation rights. 3. **Consult a lawyer with supporting materials**: Clarify the litigation or settlement path, and carefully choose the timing of filing a lawsuit for cases involving children under two years old. 4. **Cooperate with the lawyer during the legal process**: Provide evidence, participate in mediation, and negotiate and document the amount of child support, visitation frequency, and assistance obligations. Additionally, according to Article 1082 of the Civil Code, the husband may not file for divorce within one year after the wife gives birth (unless the wife initiates the divorce or the court deems it necessary to accept the case), so this rule can be utilized in strategic planning.

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