[Direct answer]In the Beijing area, custody is generally granted to the mother—according to the Civil Code, children under the age of two are primarily raised by their mothers. This is a preferential provision made considering the physical dependence of infants and young children on their mothers (breastfeeding and continuity of care). However, there are two exceptions to this principle: 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 to do so (or if the child is not suitable to live with the mother for other reasons), the child may be raised by the father. If the parents agree that the child should be raised by the father and there are no adverse effects on the child, this arrangement will also be respected. The competition for custody rights is not about who shouts the loudest, but about who is more suitable—in the case of children under the age of two, the balance initially leans towards the mother.

I. Problem Background and Typical Scenarios

Not long after the child was born, the couple decided to divorce. The man insisted, "Why should the child take her surname if it's my child?" The woman worried, "If I don't have a job or a house, I won't be able to get custody of the child." There are also special circumstances where mothers leave home during the breastfeeding period and entrust their babies to their elderly parents for long-term care. The custody rights during the breastfeeding period are one of the most emotionally charged and clearly defined areas in family litigation.

II. Key points of contention

First, the legal basis and application of the principle of giving priority to the mother. Second, the criteria for identifying exceptional circumstances. Third, the relationship between consultation arrangements and statutory principles. Fourth, the complementary relationship between alimony and visitation rights.

III. Professional analysis by Henglue Law Firm

The first layer concerns the source and logic of the principle: Article 1084(3) of the Civil Code explicitly stipulates that after divorce, children under the age of two shall be primarily raised by their mothers. The legislative logic behind this is the best interests of infants and young children—the physiological dependence during the breastfeeding period and the impact of continuous care on the development of young children, which presumes that mothers are more suitable as direct caregivers. The judicial interpretation further refines this: If the mother meets any of the following circumstances, the father's request for direct custody may be supported—suffering from incurable infectious diseases or other serious diseases, the child being unsuitable to live with her; having the ability to raise the child but failing to fulfill her obligations, or the father requesting the child to live with him due to other reasons (such as drug addiction or gambling). The second layer addresses exceptions: If the father wants to break through the mother's priority, the burden of proof lies with him—not to prove "I am no worse than her," but to prove "she is truly unsuitable." This includes medical certificates for serious diseases, evidence of long-term neglect (records of who actually cares for the child), and police reports and punitive records for harmful habits. In practice, the threshold for establishing exceptions is high, with most cases involving children under two still awarded to the mother. It should also be noted that the mother's priority does not mean a final verdict—if the mother meets the above circumstances, the balance immediately reverses, and the father can still win custody with sufficient preparation. The third layer emphasizes negotiation over statutory provisions: The legal principle is a default rule in adjudication. Where parties can negotiate, they should follow the agreement—arrangements such as the father raising the child and the mother paying alimony and enjoying visitation rights, as long as they are beneficial to the child, will be confirmed by the court in the mediation agreement. During negotiations, it is recommended to clarify the alimony amount and adjustment mechanism, the specific frequency and handover methods of visitation, and the sharing of large-scale expenses such as infant formula and medical care, to avoid secondary disputes in the enforcement stage. The fourth layer concerns ancillary arrangements beyond custody rights: After the child under two is awarded to the mother, the father's alimony shall be calculated as approximately 20% to 30% of his monthly income (adjustable under special circumstances) until the child reaches the age of 18. The mother's ability to raise the child is not a disqualifying factor—losing custody does not mean losing the right to raise the child, and the father sharing alimony is a systemic design. Conversely, the party who obtains custody must also adhere to ethical standards: hiding the child without permission or refusing visitation rights may lead to lawsuits for custody modification or enforcement of visitation rights, with such acts of concealment clearly penalized in court judgments.

IV. Practical Suggestions and Legal Basis

The first step is to sort out the child's actual care records (who fed the child, who accompanied the child, and medical records); the second step is for the party claiming custody to prepare proof of living conditions, care time, and support systems; the third step is for the party claiming to break through the mother's priority principle to organize evidence around statutory exceptional circumstances; and the fourth step is to clarify the custody fees and visitation rules in the negotiation plan. The main legal basis is Article 1084 of the Civil Code of the People's Republic of China and the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Chapter of the Civil Code, regarding the relevant provisions on child custody; the specific application shall be subject to the currently effective provisions.

5. Henglu Law Firm's Advice

Three key points regarding custody rights during the breastfeeding period: 1. Custody rights are generally granted to the mother for children under two years old, with exceptions requiring high thresholds and the burden of proof resting with the other party. 2. Negotiation is preferred over litigation, and all details regarding child support and visitation rights should be clearly specified in a single agreement. 3. Attempting to hide or abduct the child will count against the parent in question, and the court will ultimately determine which parent is better suited to care for the child. For disputes involving custody rights, parties may seek resolution through the following channels:Divorce litigation and family disputesThe service provides a comprehensive solution, which includes the enforcement of child support payments.Creditor's rights and debts, and enforcementFor reference, you can check the sections related to domestic violence and the protection of minorsSpecial servicesFor any questions regarding difficult situations, please feel free to consult us through this columnPersonal injury and medical disputesTeam.

VI. Frequently Asked Questions

Q1: Can the husband file for divorce during the breastfeeding period?

Generally, the husband is not allowed to file for divorce within one year after the wife gives birth, unless the wife initiates the divorce or the court deems it necessary.

Q2: Will it affect the custody rights if the mother doesn't have a job?

It does not affect the application of the principle; the alimony shall be shared by the father in proportion, and the ability to support the child can be balanced through the alimony system.

Q3: The child has always been taken care of by his grandmother. Can he be awarded to his father?

Granny's assistance in childcare can be considered a supporting factor on the father's side, but it's not enough to overturn the principle of maternal priority alone.

Q4: How is the standard for child support calculated?

For those with a fixed income, the reference monthly income should be 20% to 30% of their total income, determined based on the actual needs of their children and the local living standards.

Q5: Can the custody rights be changed in the future?

Yes; in situations such as when the custodial parent is not suitable to raise the child, or when the child is over eight years old and wishes to live with the other parent, a lawsuit can be filed to seek a change in custody.

This case is handled by Beijing Henglu Law Firm.Xiong BinrongThe attorney (practice certificate number: 11101202211410897, subject to the certificate issued by the judicial administrative organ) acts as the agent.

The above answer is based on the judicial practice in Beijing. The adjudication standards in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

If you are 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·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. In case of disputes, please consult a practicing lawyer in time.