[Direct answer]In the Beijing area, it's not an absolute rule, but the principle is that children under the age of two should be directly raised by their mothers. According to Article 1084, Paragraph 3 of the Civil Code of the People's Republic of China (adopted on May 28, 2020 and implemented on January 1, 2021), after divorce, children under the age of two shall be directly raised by their mothers; for children over the age of two, if the parents cannot reach an agreement on custody, the people's court shall make a judgment based on the specific circumstances of both parties and in accordance with the principle that is most conducive to the interests of the minor children; for children over the age of eight, the court shall respect their true wishes. In other words, the "principle" does not equal "absolute". If the mother has legal exceptional circumstances, the court may also award the custody of the children to the father directly. This point is further specified in Articles 44 and 45 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 (No. 22 of 2020, implemented on January 1, 2021).

1. Problem background and typical scenarios

"Is it always the mother who gets custody of the child in a divorce when the child is just over a year old?" This is a question many litigants have. In practice, it's indeed common for custody to be awarded to the mother, but there are exceptions. There are two common misunderstandings among litigants: one is that mothers believe they can rest easy if the child is under two years old, ignoring whether their own rearing conditions are suitable; the other is that fathers believe they have no chance if the child is young, giving up on providing evidence and fighting for custody. When courts in Beijing handle such cases, they usually consider both the formal criterion of age and substantive factors such as who has been taking care of the child for a long time, the parties' rearing abilities, and whether the living environment is stable. The ultimate goal is always to maximize the interests of the child.

II. Key points of contention

First, the understanding of the "principle of mother's custody as the default". This principle is a general rule rather than an exclusive conclusion. The court will still review whether there are statutory exceptions. Second, exceptional circumstances. If the mother suffers from a chronic infectious disease or other serious illness, or if she has the ability to raise the child but fails to fulfill her obligation while the father requests direct custody, or if the child is truly unsuitable to live with the mother for other reasons, these may all become grounds for awarding custody to the father. Third, priority of agreements. If the parties reach a consensus on custody issues and do not harm the children's interests, the court will generally respect their agreement. Fourth, rule switching. For children aged two or above, the court will conduct a comprehensive comparison, and for children aged eight or above, the court will listen to their opinions. Therefore, the emphasis of evidence presentation before and after these age thresholds is different.

III. Professional analysis by Henglue Lawyers

Take a divorce dispute handled by Henglue Law Firm as an example: The woman and the man have been living apart for more than ten years. The man has been engaged in business activities outside the city for a long time, and both children have been solely cared for by the woman. The man filed a lawsuit first, proposing a "one child per person" custody plan. Attorney He Ningning, based on the principle of "the best interests of the minor children", sorted out the travel records, residence certificates, WeChat chats, and the children's education and medical records to prove that the woman has formed a stable custody relationship with the children. Sudden changes in the living environment would be detrimental to the children's physical and mental health, while the man's long-term absence and lack of stable care conditions ultimately broke through the common "balanced" approach in judicial practice, mediated the divorce, and granted the woman custody of both children. This case shows that the core of determining custody rights is the children's interests, rather than an equal distribution of numbers. Returning to the issue of "children under two years old", in practice, we usually first verify whether the mother has any legal exceptions, and at the same time, use evidence of long-term cohabitation to strengthen the stable custody relationship. For the determination of the mother's health and custody ability, medical and rehabilitation materials need to be used as supporting evidence, which can be referred to.Personal injury and medical disputesThis is an article about the experience of fixing evidence in civil litigation cases in China. The case was handled by Beijing Henglu Law Firm.He NingningThe lawyer (practice license number: 11101202511925103, subject to the certificate issued by the judicial administrative organ) acts on behalf of the client, relying on his accurate understanding of the local adjudicative principles and practical rules, to help the client achieve favorable results.

IV. Practical suggestions and legal basis

According to Article 1084 of the Civil Code of the People's Republic of China (effective January 1, 2021) and Articles 44 to 48 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 (effective January 1, 2021, No. 22 of 2020), it is recommended to prepare in four steps: First, fix the evidence of long-term cohabitation, including residence certificates, pick-up and medical records, school and community certificates, daily photos and chat records; Second, prove their own custody conditions, including income, housing, time and family support; Third, if claiming that the other party is not suitable for custody, they should provide evidence around diseases, bad habits, and negligence in care; Fourth, if the child is over eight years old, record their true wishes through appropriate means. The relevant process can be referred toDivorce litigation and family disputesPractical experience; for cases involving family property and intergenerational child-rearing arrangements, relevant information can be combined with other relevant materials to provide a more comprehensive analysis.\nInheritance of property and division of family assetsAll aspects should be taken into account when formulating the strategy; for those who need to coordinate the pace of mediation and litigation, they can do so throughSpecialised legal servicesArrange it.

5. Henglue Law Firm's Reminder

The custody battle may seem to be about age, but it's actually about who is better suited to take care of the child in the long run. Three reminders: First, don't take the child away or hide them without authorization during the divorce process, as this may be deemed detrimental to the child's physical and mental health; Second, don't argue or instill antagonistic emotions in front of the child, as the court will pay attention to the family atmosphere; Third, don't miss the evidence-gathering period. Evidence of the child's living conditions and upbringing should be secured as soon as possible.Beijing Henglue Law FirmIt is recommended to organize the facts of care and the conditions of upbringing into a booklet before suing or defending, so as to avoid being passive due to scattered evidence in the courtroom.

VI. Frequently Asked Questions

Q1: Are children under the age of two always awarded to their mothers in custody cases?

The principle is to award custody to the mother, but this is not an absolute rule. If the mother suffers from a long-term incurable infectious disease or other serious illness, or if she has the ability to raise the child but fails to fulfill her obligation to do so, and the father requests direct custody, or if the child is truly not suitable to live with the mother, the court may also award custody to the father in such circumstances.

Q2: What evidence do I need to prepare?

Proof of long-term cohabitation, records of pick-ups and medical appointments, school or community certificates, daily photos and chat records, as well as personal income, housing, time, and family support materials; if claiming that the other party is not suitable to raise the child, evidence of illness, bad habits, or negligence in care should also be prepared.

Q3: Approximately how much does it cost to fight for custody rights?

The litigation fees shall be paid together with the divorce case. For each divorce case, the fee ranges from 50 yuan to 300 yuan. For the part involving property division with a total amount exceeding 200,000 yuan, the fee shall be paid in proportion to the total amount; for cases involving paternity testing or property appraisal, there will be additional expenses; and the attorney's fees shall be determined based on the amount of the case or through negotiation at different stages, subject to the provisions of the entrustment contract.

Q4: How long does it take from filing a lawsuit to determining custody rights?

Cases subject to simplified procedures are generally concluded within three months, and those subject to ordinary procedures take about six months. Cases involving public notice service, appraisal and evaluation, or second-instance trials will take longer. If the parties can reach an agreement on custody and settle the case through mediation, the process will usually be much faster.

Q5: What should I do first?

First, confirm whether you belong to the party that "takes the mother's upbringing as the principle". Check whether there are statutory exceptions. Then, organize the facts of long-term care and the evidence of upbringing conditions, and determine whether to determine the upbringing arrangements through negotiation or litigation.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

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 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 you encounter disputes, please consult a practicing lawyer in time.