[Direct answer]After divorce, the custody of children shall be determined in accordance with Article 1084 of the Civil Code of the People's Republic of China: For children under the age of two, the mother shall have the primary right to custody; for children over the age of two, if the parents cannot reach an agreement, the people's court shall determine the custody according to the principle that is most beneficial to the minor children; for children over the age of eight, the court shall respect their true wishes. The court shall comprehensively consider the ability to raise, daily companionship, the stability of the living and educational environment, and the circumstances of the fault of both parties. The income level is not a decisive factor; if the child has been living with one party for a long time, the court usually tends to maintain a stable custody environment. After divorce, changing the custody rights requires legal grounds. You can first go through the legal procedures.Divorce litigation and legal services for family disputesOrBeijing Henglu Law FirmUnderstand the processing approach.

I. Problem Background and Typical Scenarios

Custody is the most contentious and emotionally charged issue in divorce cases. Typical scenarios include: the child is still breastfeeding or under the age of two, and both parties insist on raising the child themselves; the child has been cared for by grandparents for a long time after birth, and both parties claim that they are the primary caregivers when the divorce occurs; one party has significantly higher income and believes they are better "qualified" to raise the child; the child has already entered primary or middle school and clearly expresses the desire to live with one of the parents; years after the divorce, one party sues to change custody rights, and the original custodian is worried that their established life will be disrupted. Determining custody rights is not simply comparing the advantages and disadvantages of both parties, but rather making a comprehensive evaluation based on the interests of the child. In practice, many disputes arise precisely from the misalignment between "who has better conditions" and "who is more beneficial for the child to live with".

II. Key points of contention

  • Comprehensive evaluation of the principle of the best interests of the child: The court not only examines income and housing, but also factors such as the length of daily companionship, care history, education planning, health status, and the presence of adverse factors such as domestic violence and bad habits. A single advantage is unlikely to determine the outcome.
  • The significance of established parenting arrangements: When a child has been living with one parent and their grandparents for a long time, attending the same school and having a stable social circle, it would be detrimental to their growth to abruptly change their environment. Therefore, the court usually adopts a cautious protective attitude towards maintaining the status quo.
  • The legal threshold for changing custody rights: After divorce, to request a change in custody rights, it is necessary to prove that the custodial party has legal circumstances such as being unable to raise the child, failing to fulfill their obligations, or abusing the child. Generally, changing custody rights solely on the grounds that one's income is higher or living conditions are better will not be supported.

III. Professional analysis by Henglue Lawyers

Henglue Lawyers observed in custody cases that a stable custody environment and the quality of evidence often determine the outcome. In a second-instance case, Fan * and Li * divorced through court mediation, and their child was raised by Li *. Subsequently, Fan * sued to claim that Li * suffered from mental illness and was unfit to continue raising the child, requesting to change the custody rights to himself. After the first-instance court dismissed the claim, Fan * appealed. Li * entrusted Henglue Lawyers to defend the case. The lawyers presented a series of arguments: Fan * failed to provide evidence to prove that Li *'s current mental state was abnormal and lacked full civil capacity; the first-instance court's refusal to grant Fan *'s investigation request was not unreasonable; the child had been raised by Li * and received normal education since the divorce, with a stable living and learning environment; and Fan * had once sued to confirm that he had no parent-child relationship with the child, which hardly demonstrated concern for the child's interests. The second-instance court adopted the lawyers' arguments, determined that Fan * failed to provide sufficient and effective evidence to prove the existence of statutory grounds for changing the custody relationship, dismissed the appeal, and upheld the original judgment. 恒略律师在办理抚养权案件中观察到，稳定的抚养环境与举证质量往往决定成败。一起二审案件中，范某与李某经法院调解离婚，婚生子由李某抚养；范某后起诉主张李某患有精神病、不适合继续抚养，请求变更抚养权归己，一审被驳回后上诉。李某委托恒略律师应诉，律师层层递进答辩：范某未举证证明李某当前精神状态异常、不具备完全民事行为能力，一审未准许其调查申请并无不当；孩子自离婚后一直由李某抚养并正常接受教育，生活与学习环境稳定；范某还曾起诉要求确认与孩子不存在亲子关系，难谓以孩子利益为重。二审法院采纳律师意见，认定范某未提供充分有效证据证明存在变更抚养关系的法定事由，驳回上诉、维持原判。

In another similar case, the parents agreed to divorce and stipulated that the child would be raised by the father. After the mother moved out of the shared residence, she sued to change the custody rights on the grounds that the father was too busy with work and had a habit of alcoholism. Henglu Law Firm represented the father to provide evidence: the child has lived with the father since birth, and after moving out, the father and grandmother have been taking care of the child, forming a stable living and emotional environment. The parties' work and income situations are similar. The court held that the plaintiff failed to provide a clear and sufficient chain of evidence to prove the existence of statutory circumstances for custody change, and should bear the consequences of failing to provide evidence. The court dismissed the plaintiff's lawsuit. The two cases jointly show that the core of the custody dispute is to prove "which party is more beneficial for the child to live with", rather than mutual accusations between the parties. The issue of alimony payment and subsequent enforcement can also be considered in combination with the above evidence.Creditor-debtor relations and enforcement case servicesEvaluate them together.

IV. Practical suggestions and legal basis

Law-based perspective: Article 1084 of the Civil Code of the People's Republic of China (effective January 1, 2021) stipulates that after divorce, children under the age of two shall be primarily raised by their mothers; for children over the age of two, if the parents fail to reach an agreement on custody, the court shall make a judgment based on the principle of maximizing the interests of the minor children according to the specific circumstances of both parties; for children over the age of eight, their true wishes shall be respected. Article 1085 stipulates the burden and modification of alimony, and Article 1086 stipulates that the non-custodial parent has the right to visit the children, and the other party has the obligation to assist. Article 56 of the Interpretation of the Marriage and Family Chapter of the Civil Code of the People's Republic of China by the Supreme People's Court (effective January 1, 2021) lists the circumstances under which the custody relationship can be modified: if the party living with the children suffers from a serious illness or disability and is unable to continue raising them; if the party fails to fulfill their custody obligations or abuses the children, or if living with the children has a detrimental impact on the children's physical and mental health; if the children over the age of eight wish to live with the other party and that party has the ability to raise them; or if there are other justifiable reasons for modification. Practical advice: Daily keep records of care, home-school communication, income and residence proof; avoid seizing or hiding children before and after divorce, as such actions not only do not add points but may also be deemed detrimental to the children's physical and mental health; if alleging that the other party has bad habits or diseases, it is necessary to provide verifiable evidence rather than just making oral accusations.

5. Henglue Law Firm's Reminder

The key to winning the custody battle lies in the four words "the best interests of the child": who is truly accompanying the child, who provides a stable living and educational environment, and who better respects the child's emotional needs. These facts need to be supported by evidence accumulated on a daily basis. The party who has already obtained custody rights doesn't need to be overly anxious. As long as they fulfill their duty of custody and there are no statutory changes, the stable custody status will be protected by law. For those who want to obtain or change custody rights, they should provide systematic evidence based on statutory grounds and their own custody conditions, and avoid emotional confrontations. The above-mentioned second-instance custody cases were handled by Beijing Henglu Law Firm.Tian Jia YanAttorney (Practice License No.: 11101202111381309, subject to the document issued by the judicial administrative organ). If you are currently facing a custody dispute, it is recommended that you sort out the evidence as soon as possible and consult a professional lawyer to take the initiative in negotiations and litigation.

Q1: When a couple divorces, must the child who is under two years old always be awarded to the mother?

In principle, this is the case. According to Article 1084 of the Civil Code of the People's Republic of China, after divorce, children under the age of two shall generally be raised directly by their mothers. However, this is not an absolute rule. If the mother suffers from a chronic infectious disease or other serious illness, fails to fulfill her duty of support, or is otherwise unsuitable to raise the child, the court may handle the case exceptionally. If the father can provide evidence to a certain level of proof, he may also obtain custody rights. In practice, disputes over this age group often focus on whether the mother is unsuitable for raising the child. The father should collect evidence such as hospital treatment records and specific facts of care deficiency, rather than simply claiming rights on the grounds of being busy with work and having no time to take care of the child.

Q2: The child has already reached the age of eight. Can they choose to live with whoever they want?

The child's wishes are an important consideration, but not the only criterion. According to Article 1084, if the child is over eight years old, the people's court shall respect their true wishes and usually understand the child's thoughts through questioning, interview transcripts, etc. However, the "true wishes" need to be reviewed: whether the wishes are voluntarily formed, whether they have been induced or pressured by one party, and whether the child's understanding of the living conditions of both parties is comprehensive. In the end, the court still needs to make a comprehensive judgment based on the ability to raise, the conditions of companionship, and the stability of the environment. If the party who the child expresses a willingness to follow clearly does not have the conditions to raise the child, the court may not necessarily accept the request unconditionally. It is recommended that the parties respect the child's feelings, do not repeatedly persuade or argue in front of the child, so as to avoid causing secondary harm to the child and affecting the court's evaluation.

Q3: If my income is lower than the other party's, does that mean I won't be able to win custody of the child?

Not necessarily. Income is just one indicator of parenting ability. The court evaluates this comprehensively based on the principle of maximizing the interests of minor children. Factors such as spending time with the child, caregiving history, and the continuity of the child's life often carry more weight than income disparity. In practice, a party with higher income but who has been absent from the child's life for a long time may not necessarily be superior to a party with average income but who has been responsible for daily care. Whether the grandparents can assist with childcare and whether the living and schooling environment is stable are also important plus factors. When claiming custody rights, one should provide solid evidence of "who is actually taking care of the child", such as pick-up and drop-off records, communication in parent groups, accompaniment to medical appointments, and testimonies from neighbors and teachers, rather than just comparing pay slips. If the conditions of both parties are indeed comparable, the court will typically focus on examining the established parenting facts and the child's wishes.

Q4: After divorce, if I want to change the custody rights, under what circumstances will the court support my request?

According to Article 56 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, the main circumstances include: the party living with the children is unable to continue raising them due to serious illness or disability; the party fails to fulfill their duty of support or engages in child abuse, or their cohabitation with the children has a detrimental impact on the children's physical and mental health; the child who has reached the age of eight wishes to live with the other party, and that party has the ability to raise the child; or there are other legitimate reasons for the change. The two parties may also agree to change the custody relationship by signing a written agreement. It should be noted that suing for a change solely on the grounds of having a higher income or larger housing is usually not a legitimate reason. Before suing, the party should systematically collect evidence showing that the other party is unable to raise the children or is not suitable to raise them, and evaluate their own ability to raise the children.

Q5: If the other party doesn't allow me to visit my child, what should I do? Will this affect my custody rights?

The right to visitation is protected by law. According to Article 1086 of the Civil Code of the People's Republic of China, after divorce, the party who does not directly raise the children has the right to visit them, and the other party has the obligation to assist; if the other party unreasonably obstructs it, a lawsuit for the right to visitation may be filed, requesting to specify the time and manner of visitation and to force the other party to assist by the court. If one party refuses to visit the children for a long time and deliberately cuts off the children's contact with the other party, it may be deemed detrimental to the children's physical and mental health. If the other party sues to change the custody rights, it will become an unfavorable factor for you. Conversely, the party who directly raises the children cannot refuse to visit on the grounds that the other party has not paid alimony. Alimony and visitation are two independent legal issues. Refusing to pay alimony should be claimed separately. Both parties should avoid using the children as bargaining chips to confront each other.

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 Tian Jiaoyan·Beijing Henglu Law Firm