[Direct answer]It can be contested, and the victim of domestic violence has a clear advantage, but it is not automatically granted. According to Article 1084 of the Civil Code of the People's Republic of China, after divorce, children under the age of two shall be raised directly by the mother as a principle; those over the age of two shall be judged according to the principle that is most beneficial to the minor children; and those over the age of eight shall respect their true wishes. The violent behavior of the abuser is a negative factor that is not conducive to the children's growth, and the court will give it special consideration. At the same time, domestic violence is a circumstance that should lead to a divorce judgment according to Article 1079, and the victim can also request damages according to Article 1091. The two children do not have to be "one for each". If the victim has been raising the children for a long time and stably, and the other party does not have the conditions to care for them, the victim can strive for both children to be with them. For more solutions, please refer to the following link:Divorce litigation and legal services for family disputes.

I. Problem Background and Typical Scenarios

In domestic violence divorce cases, the victims are usually most anxious about three things: whether they can divorce successfully, who the children will be awarded to, and whether they will suffer financial losses. Typical scenarios include: being subjected to long-term physical abuse or emotional neglect, with the abuser still unrepentant after the police are involved, and the victim fearing that the first lawsuit will not result in a divorce; children being cared for by the victim for a long time, but the abuser having better financial conditions or stealing and hiding the children; families with two children, where the abuser files a lawsuit first to claim "one child per parent"; and the victim being too preoccupied with treating their injuries and facing personal safety threats to collect evidence. Evidence in domestic violence cases is easily lost, and personal risks persist. The earlier the victim secures evidence and seeks legal protection, the more initiative they will have in claiming custody and property rights.

II. Key points of contention

  • Determination of the facts of domestic violence: The police report, the warning letter, the opinion on the injury appraisal, and the witness's testimony need to form a chain of evidence. According to Article 20 of the Anti-Domestic Violence Law of the People's Republic of China, the court may determine the facts of domestic violence based on the police report, the warning letter, the opinion on the injury appraisal, etc. issued by the public security organ. However, the probative force of scattered injury photos is limited.
  • Custody rights: The collision between the principle of "what is most beneficial for the minor children" and the judicial practice of "one child per parent" is a major issue. The stable living environment formed by the victim's long-term custody of the child is the core bargaining chip, while the other party's history of violence is a disadvantageous factor.
  • Damages and Unequal Division of Property: If the perpetrator commits a major fault, the victim may request damages in accordance with Article 1091 of the Civil Code and claim unequal division of property based on the principle of protecting the innocent party. For matters involving enforcement guarantees, reference may be made to the relevant provisions.Legal services for creditor-debtor disputes and enforcement cases.

III. Professional analysis by Henglue Lawyers

In the family law cases handled by Henglue Lawyers, the breakthrough points in custody disputes usually lie in two aspects: "stable custody relationships" and "the other party's unfavorable factors". In one case, Ms. Wang and her husband had been living apart for over ten years. She single-handedly took care of the children's daily life, academic guidance, and medical accompaniment. The husband first sued for sole custody of one child. Henglue Lawyers collected travel records, residence certificates, chat records, and the children's education and medical records to prove that the husband had been absent from family life for a long time. According to Article 1084 of the Civil Code, the lawyer argued that abruptly changing the stable custody relationship would be detrimental to the children. Ultimately, the divorce was settled through mediation, and both children were raised by the wife, with the husband legally paying child support. In another case, Ms. Li suffered from domestic violence from her husband and their relationship broke down due to his infidelity. The lawyer compiled evidence including police reports, hospital diagnosis certificates, rental contracts, and community certificates to prove the husband's fault. Through mediation, the marriage was dissolved, and the child was awarded to the husband, while the wife was granted fixed weekly visitation rights for nine hours, ensuring the protection of both parties' rights. In another case, the husband's extramarital affair was determined by the court to constitute a major fault. According to the principle of protecting the innocent party, the court awarded the wife 70% of the marital property and custody of the children - violence and infidelity carry real weight in custody and property division decisions.

IV. Practical suggestions and legal basis

At the legal basis level: Article 1079 of the Civil Code of the People's Republic of China (effective January 1, 2021) stipulates that if mediation of domestic violence fails, the divorce shall be granted; Article 1084 establishes the principle of acting in the best interests of minors and special rules for children aged two and eight; Article 1085 stipulates the burden of alimony; Article 1091 stipulates that if the divorce is caused by domestic violence, the innocent party has the right to request compensation for damages. Article 16 of the Anti-Domestic Violence Law of the People's Republic of China (effective March 1, 2016) stipulates that if the domestic violence is relatively minor and no public security administrative punishment is imposed according to law, the public security organ may issue a warning letter; Article 20 stipulates that police intervention records, warning letters, and injury appraisal opinions can be used as evidence to determine the fact of domestic violence; Article 23 stipulates that if the party suffers from domestic violence or faces an imminent danger, they can apply to the court for a personal safety protection order. At the practical advice level: Report the domestic violence to the police and seek medical treatment immediately; keep police intervention records, warning letters, diagnosis certificates, and injury photos; if there is a risk of continued abuse, apply for a personal safety protection order as soon as possible; keep daily records of children's care, education, and medical bills to prove a stable parenting relationship; if the injury involves an assessment of personal injury compensation, it can be combined with other evidence to support the claim for compensation.Legal services for personal injury and medical disputesSynchronized evaluation.

5. Henglu Law Firm's Reminder

In cases of divorce involving domestic violence, personal safety always comes first, followed by evidence, and finally custody and property claims. Victims should never give up reporting the case to the police and seeking medical treatment just because the other party verbally repents—these are precisely the cornerstones for proving domestic violence, securing custody rights, and claiming damages in the future; nor should they resort to methods such as seizing or hiding the children to resist, as this may actually work against them in the eyes of the judge. The above-mentioned case involving custody rights for two children after a ten-year separation was handled by Beijing Henglu Law FirmHe NingningThe lawyer (practice license number: 11101202511925103, subject to the document issued by the judicial administrative organ) acted on behalf of the client and finally broke through the "one child per parent" convention, with both children being raised by the mother. If you are in a similar situation, it is recommended that you hire a lawyer as soon as possible to formulate evidence-fixing and litigation plans, and apply for personal safety protection orders simultaneously to ensure your safety.

Q1: Without a police report, only photos of the injuries, can we determine that it's domestic violence?

Proof of injuries alone may have limited evidentiary value, but it's not impossible to establish the fact of domestic violence. According to Article 20 of the Anti-Domestic Violence Law of the People's Republic of China, the court may determine the fact of domestic violence based on evidence such as the police's on-site records, warning letters, and injury appraisal opinions; if there are no police records, the court may supplement with medical diagnosis certificates, injury appraisals, chat records or audio recordings in which the perpetrator admits his/her fault, testimonies from neighbors and relatives, and on-site videos, to form a mutually corroborating chain of evidence. Injury evidence should be fixed as soon as possible, and the medical records and imaging materials related to the injury should be preserved in their entirety. From now on, it's the most effective way to remedy the lack of evidence to report every conflict to the police. Even if the circumstances are minor and no punishment is imposed, the court may still issue a warning letter upon request.

Q2: In cases of domestic violence and divorce, do the children always go to the victim's side?

It's not an automatic attribution, but the victim has a clear advantage. According to Article 1084 of the Civil Code of the People's Republic of China, the custody of the child shall be determined in accordance with the principle that is most beneficial to the minor child. The court shall comprehensively consider factors such as the child's age, living habits, the parties' ability to raise the child, and their moral character to make a judgment. For the party who commits domestic violence, his violent behavior directly relates to the physical and mental safety of the child, and is an important negative factor. The court will usually exercise caution or even exclude him from directly raising the child. The victim still needs to prove that he has stable conditions for raising the child: fixed records of caring for the child to live with him, receipts for education and medical expenses, and proof of stable residence. If the child is over eight years old, the court should also respect his true wishes. It is necessary to communicate with him in advance and prepare for the court hearing statement.

Q3: Can both children be raised by the victim?

Yes. Although there is a balancing practice in judicial practice that "one child is raised by one parent", it is not a mandatory legal requirement. The best interests of the children should be the highest standard. If the two children have lived with one parent for a long time and formed a continuous fostering relationship, abruptly separating them would not be conducive to the children's growth; if the other parent has been away for a long time, lacked care for the children, or there were situations of domestic violence, the court or mediator could completely break through the practice and award custody of both children to the victim or mediate for the victim to raise them. In the case of separation and single parenting for more than ten years handled by Henglue Law Firm, the mediation successfully achieved that both children were raised by the mother. When seeking custody, it is important to submit photos of the two children living together, school and medical records, and demonstrate the disadvantages of splitting custody.

Q4: Can I apply for a personal safety protection order if I'm a victim of domestic violence?

Yes. According to Article 23 of the Anti-Domestic Violence Law of the People's Republic of China, if a party applies to the people's court for a personal safety protection order due to domestic violence or the real danger of domestic violence, the people's court shall accept the application; the protection order may prohibit the respondent from committing domestic violence, harassing or stalking, and order the respondent to move out of the residence, etc. The application does not require a divorce lawsuit as a prerequisite, nor does it need to report the case to the police first. It can be filed as long as the victim suffers from violence or faces a real danger. The court usually makes a ruling within 72 hours, and in urgent cases, it will make a ruling within 24 hours. If the respondent violates the protection order, the court may give him/her a warning, impose a fine, or detain him/her, and if the violation constitutes a crime, criminal responsibility shall be investigated according to law. It is recommended to apply for the protection order simultaneously with the divorce lawsuit to form a safety barrier during the litigation period.

Q5: Can I request damages in a divorce case involving domestic violence?

Yes. According to Article 1091 of the Civil Code of the People's Republic of China, in the case of divorce caused by domestic violence, the innocent party has the right to request compensation for damages, including material damages and mental damages, the amount of which shall be determined by the court based on the circumstances and consequences of the violence and the local living standards. Two points should be noted: First, the request should be based on the fact that the domestic violence has been identified. Evidence such as police reports, warning letters, and injury appraisals are indispensable. Second, the request is usually raised together with the divorce litigation. If the innocent party waives the right to compensation in the divorce agreement, it will generally be difficult to claim it afterwards. In addition, domestic violence, as a major fault, can also be used to claim favorable treatment for the innocent party in the division of property according to Article 1087 of the Civil Code, and the compensation for damages can be combined to safeguard the rights and interests.

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 He Ningning·Beijing Henglu Law Firm