[Direct answer]In the Beijing area, there are two situations: for those who have not yet divorced, they can claim direct custody and alimony payments in the divorce litigation; for those who have already divorced, they need to file a lawsuit to change the custody relationship on the grounds of a change in circumstances. Article 1084 of the Civil Code of the People's Republic of China stipulates that after divorce, children under the age of two shall be directly raised by the mother as a principle. If the children are over the age of two and the parties cannot reach an agreement, the people's court shall make a judgment in accordance with the principle that is most beneficial to the minor children. If the children are over the age of eight, their true wishes shall be respected. The key to regaining custody rights is not to prove that the other party is at fault, but to prove that continuing to be raised by the other party is not beneficial to the children, or that raising them by oneself is more in line with the children's interests.

1. Problem background and typical scenarios

For those who want to regain custody of their children, most of them encounter the following situations: when they divorce, the child is awarded or agreed to be raised by the other party, but the other party works away from home for a long time and leaves the child in the care of their elders; the other party obstructs visits, hides the child, or frequently changes their residence, which affects the child's schooling; they made concessions on custody issues during the negotiation to divorce as quickly as possible, but later found that it was not beneficial to the child; and there are also cases where the other party has obvious unfavorable circumstances such as alcoholism, violence, or illness. The common point is that they are emotionally intense, but they don't have enough facts and evidence to support their claims.

II. Key points of contention

First, path selection. For divorce litigation that has not been concluded, claim direct custody directly in the same case; for those who have already divorced, it is necessary to file a separate lawsuit to change the custody relationship. The evidentiary focus of the two cases is different. Second, adjudication standards. Children under the age of two are generally directly raised by their mothers; for those over the age of two, the court will make a comprehensive judgment based on the principle of what is most beneficial to the minor child; for those over the age of eight, the court will respect the children's true wishes, but will still review whether the wishes are genuine and whether they have been improperly influenced. Third, legitimate reasons for change. If the party who lives with the children is unable to continue raising them due to illness or disability, or fails to fulfill their custody obligations, has abusive behavior, or has a negative impact on the children's physical and mental health, or if the child over the age of eight wishes to live with the other party and the other party has the ability to raise them, as well as other legitimate reasons, the change can usually be supported. Fourth, actual care facts. In daily life, who picks up and accompanies the children to the doctor, who attends parent-teacher meetings, these stable states carry great weight in the adjudication. Fifth, supporting arrangements. After the change of the custody relationship, the standard of alimony, the payment method, and the visitation rights should be clarified together to avoid creating new disputes.

III. Professional analysis by Henglue Law Firm

The custody battle is rarely a simple yes-or-no question, but rather a systematic effort to gather evidence based on the best interests of the children. Xiaoya and Xiaolei registered their marriage in November 2013 and had an eldest son (born in September 2015) and an eldest daughter (born in October 2018). The two children have been living with Xiaoya for a long time. Since the birth of their eldest son, Xiaolei has been away for a long time running his clothing business, and the couple has been living apart for more than ten years. There is a lack of communication and emotional indifference between them. During the separation, Xiaoya single-handedly took care of the children's daily life, academic tutoring, medical treatment, and psychological support, while Xiaolei failed to fulfill his support and custody responsibilities. Xiaoya first hired a lawyer to sue for divorce, demanding that the two children be raised by her and that the man pay child support. Unexpectedly, Xiaolei sued first, claiming that the biological daughter should be raised by him and the biological son should be raised by her, with her paying 1,000 yuan per month in child support. Xiaoya was then transformed into the defendant. The lawyer's work focused on three aspects: first, establishing a factual basis by organizing travel records, residence proofs, WeChat chats, and records of the children's education and medical treatment to prove that the couple has been living apart for a long time and that the man has been absent from family life for a long time; second, adhering to the principle of "what is best for the minor children" stipulated in Article 1084(3) of the Civil Code of the People's Republic of China, explaining that the two children have formed a stable custody relationship with Xiaoya, and that abruptly changing their living environment would be detrimental to their physical and mental health. Moreover, the man lacks stable care conditions due to his long-distance business operations, so it is appropriate for the two children to be directly raised by Xiaoya; third, claiming that the credit card debt under Xiaoya's name, which was actually obtained and used by the man with her ID card, should be borne by the man. The court adopted the above-mentioned opinions, breaking through the common practice of "one parent raising one child" arrangements, mediated the divorce and granted Xiaoya custody of the two children, with the man legally paying child support. The division of property and the assumption of debt responsibilities also resulted in favorable outcomes for Xiaoya. This case was handled by Beijing Henglu Law Firm.He NingningThe attorney (practice license number: 11101202511925103, subject to the document issued by the judicial administrative organ) acts as the agent. It should be noted that most cases do not meet the condition of obtaining custody of two children at once. Whether it is possible to break through the conventional arrangement depends on the strength of the evidence of stable care and the unfavorable circumstances of the other party; for cases involving domestic violence and personal injury, the way of fixing the injury and the police report can be referred to for reference.Personal injury and medical disputesMy experience in handling this matter.

IV. Practical suggestions and legal basis

According to Article 1084 of the Civil Code of the People's Republic of China (adopted on May 28, 2020 and implemented on January 1, 2021), after divorce, parents still have the rights and obligations to support, educate, and protect their children; children under the age of two shall be directly raised by their mothers; where the parties fail to reach an agreement on custody of children over the age of two, the people's court shall determine the custody based on the principle of maximizing the interests of the minor children; where the children are over the age of eight, their true wishes shall be respected. Article 1085 stipulates that where a child is directly raised by one party, the other party shall bear part or all of the child support expenses, the amount and duration of which shall be determined by the parties through agreement, and where no agreement is reached, the people's court shall determine it; Article 1086 stipulates that the party who does not directly raise the child has the right to visit the child. 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 (No. 22 of 2020, implemented on January 1, 2021) stipulates the specific circumstances under which the change of custody relationship can be supported, and the specific application shall be subject to the current effective laws, regulations, and judicial decisions. Action List: Firstly, continuously maintain and record the status of the child living with oneself, and keep the proofs of picking up and dropping off the child, medical treatment, payment of fees, and communication between the school and the family; Secondly, collect evidence of the other party's failure to fulfill their duty of care or the existence of obvious unfavorable circumstances, and pay attention to the legality of the evidence collection method; Thirdly, prepare materials on the child's ability to be supported, such as income, housing, social security, and working hours; Fourthly, the wishes of children over the age of eight should be allowed to be expressed independently, and avoid inducing and substituting their expressions; Fifthly, in the litigation request, clearly specify the amount of child support, the payment method, and the visiting time and location, and combine with other relevant provisions as necessary.\nEnforcement of the caseAfter evaluating the experience, we will ensure the subsequent fulfillment of our obligations.

5. Henglu Law Firm's Advice

The biggest misunderstanding in regaining custody rights is treating litigation as an emotional outlet, repeatedly stating how irresponsible the other party is, but failing to provide factual evidence to prove which parent the child should live with. Three reminders: First, don't hide the child or obstruct the other party's visitation rights. Such actions may be deemed detrimental to the child's physical and mental health, which will ultimately affect the court's ruling. If visitation is obstructed, it should be resolved through enforcement applications, etc. Second, don't disparage the other party or force the child to take sides in front of them. The court will review whether the child's wishes are genuine. Third, the custody relationship is not fixed once it is established. If the direct custodian seriously hinders the child's growth or the child's wishes change substantially, the other party can legally request a change. Therefore, it's very important to continuously preserve evidence. You can first learn about the relevant procedures.Divorce litigation and family disputesThe key points for handling this matter.Beijing Henglu Law FirmTip: Prioritize the stability of the child and organize evidence based on the current situation of their life. This is more effective than emotional confrontation.

VI. Frequently Asked Questions

Q1: What are the chances of winning a lawsuit to change the custody arrangement?

It depends on whether there are legal or legitimate reasons and whether evidence can be provided. If the other party is unable to continue providing support due to illness or disability, or fails to fulfill their support obligations, engages in abusive behavior, or has a detrimental impact on the children's physical and mental health, the likelihood of support is higher. If the child who has reached the age of eight expresses a clear wish to live with the other party and that party has the ability to support the child, the request will usually be accepted. However, if the statement is merely "I love the child more" without factual support, it will be difficult to persuade the court to change the existing living arrangement.

Q2: What evidence do I need to prepare?

First, proof of actual care, including pick-up and drop-off records, communication between home and school, and medical payment receipts, as well as daily photos and videos; Second, proof of parenting ability, including income and social security records, housing conditions, working hours, and family assistance; Third, proof of the other party's unfavorable circumstances, including police reports and warnings, medical records, and evidence of long-term absence from home or failure to fulfill parental obligations; Fourth, the child's birth medical certificate and the divorce judgment or mediation agreement. For children aged eight and above, their wishes should be expressed independently, and it is not appropriate to speak on their behalf.

Q3: How much would it cost to hire a lawyer and fight this lawsuit?

The lawsuit to change the custody relationship is generally charged according to the number of cases, with lower fees for cases not involving property disputes. If the plaintiff also claims alimony and property division, the fees will be calculated according to the standards for property cases, subject to the specific provisions of the "Measures for the Payment of Litigation Fees". The attorney's fees will be determined based on the complexity of the case, the need for investigation and evidence collection, and whether the case involves cross-regional handling. They are usually negotiated on a per-stage or per-case basis, and the final fees will be specified in the written power of attorney contract. For those applying for the enforcement of alimony payments, it is also necessary to understand the rules regarding the burden of enforcement fees.

Q4: How long does the entire process take?

The first-instance trial of a lawsuit to change the custody relationship is generally concluded within three to six months after the case is registered. If it involves an investigation of the custody conditions or the need to retrieve school or medical records, the time period will be longer; if the first-instance result is unsatisfactory and an appeal is filed, the second-instance period will also be extended. If the custody rights are claimed together with the divorce litigation, they will be tried together with the divorce case, and the time period will be synchronized with the divorce litigation. After the judgment or mediation takes effect, if the other party refuses to hand over the children or pay the alimony, it will be subject to the compulsory enforcement procedure again.

Q5: What should I do first?

First, stabilize and document the current situation: Maintain the stable living and schooling environment for the children, avoid sudden changes in their living and schooling environment, and systematically collect evidence of care, medical treatment, payment, and communication between home and school. The second step is to sort out the unfavorable circumstances of the other party and confirm that the evidence-gathering methods are legal. The wishes of children over the age of eight will be separately fixed. The third step is to consult a professional lawyer with the materials, evaluate whether to file a lawsuit to change the custody relationship or to handle other disputes simultaneously, and then decide on the litigation strategy and claims.

The above Q&A is mainly based on the judicial practice in Beijing. There may be differences in the interpretation of the law in different regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

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 Xiong Binrong·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If a dispute arises, please consult a practicing lawyer in time.