In many divorce and custody disputes, when a family has two children, it is often caught up in the traditional idea that parents each raise one. In practice, the court's distribution of custody of multiple children is not simply and mechanically distributed equally, but will be comprehensively judged in light of the specific circumstances of the case. If it is more conducive to the physical and mental health of the child if both children are raised by one party, the custody of two children may be awarded to one party.
Wu Dan/Cartography
The author | Tian Jing
Responsible editor| Zhang Jingjing
The text is 3036 words long, and it is expected to take 10 minutes to read▼
Warm family atmosphere, good family atmosphere and harmonious family relationship are important conditions for children to thrive. However, when the breakdown of parents' feelings is inevitable, how to minimize the harm of divorce to children? With the advent of the three-child era, the second childhood has become a thing of the past, but how custody of two children is divided is still in the present tense. Should a seemingly simple and fair division of raising a child be enforced?
If you have money, you have priority custody?
Dr. Zhang Li graduated from a prestigious university majoring in computer software, and founded a mobile phone software company after graduation. After several years of hard work, he finally had a successful career, with assets of over 100 million yuan under his name and a rich monthly salary. His wife, Li Dan and Zhang Li, are college classmates, and after graduation, they entered a public primary school as a teacher, and although the monthly salary is not much, it is enough to ensure the needs of life.
Zhang Li and Li Dan have been married for 12 years, with a son of 10 years old and a daughter of 8 years old. It seems to be a very complete and enviable family, but the husband and wife have many differences on the issue of living habits and children's education, and quarrels have become commonplace. In 2020, Li Dan filed a divorce lawsuit with the court for the second time, and Zhang Li agreed, but the two sides argued over the maintenance of the two children. Li Dan felt that the father of the child was busy with work all year round, indifferent to the child's life and study, and even the child's grade was not clear, and he was not qualified to raise the child. Zhang Li said that his income and education are higher than Li Dan, he can give his children a better material life, and he also has the energy to take care of a child, hoping that the two children will be evenly distributed.
After trial, the court found that although Zhang Li had a high income, he traveled a lot, rarely had time to accompany the child, and the child was not very close to Zhang Li. The daily life of the two children has been taken care of by Li Dan before, and has formed a habit, although Li Dan's income is not as good as Zhang Li, but also has the ability and conditions to raise two children. In the end, the two children were judged to be raised by Li Dan, and combined with the actual living expenses of the two children, Zhang Li's income level and local living standards, zhang li decided to give 15,000 yuan per month to support the two children.
Due to the difference in social functions and family division of labor, many fathers in China's social families have better economic conditions and social status than mothers, and there are often cases in which the man advocates for the right to maintain the child on the grounds that the support ability and conditions such as income, education, household registration, and school enrollment are better than those of the woman. In order to support its claims, one party often submits a large amount of evidence to prove its superiority in material conditions. There is a misunderstanding in this way of thinking, the comparison of material conditions is only an external quantitative condition that is conducive to the physical and mental health of children, and is not necessarily conducive to maximizing the interests of children, and some non-material supporting abilities and conditions, such as companionship time and parental help, are all factors of comprehensive comparison.
Your child should be listened to
"After the promulgation of the Civil Code, we pay more attention to listening to the voices of children, who the children work with to better grow up for the children, and can better reflect the maximization of the interests of the children, and judge the children to whom." Guo Wei, a judge at the Family Juvenile Trial Division of the Xicheng District People's Court in Beijing, said.
Not long ago, Guo Wei encountered such a divorce dispute case, Wang Qiang and Liu Mei have two sons, and her mother Liu Mei hopes that the eldest son will be raised by herself, but unexpectedly, the younger son's words made the judge can't help but blush. In the end, the mother's appeal was dismissed.
When Papa Wang Qiang sued for divorce, their two sons were younger, with an older brother aged 8 and a younger brother 6. The Civil Code stipulates that in divorce cases, if a child reaches the age of eight, his or her true opinion shall be respected. However, the mother Liu Mei was very resistant to taking the two children to the court. So how can courts seek the opinion of young children?
Guo Wei is the judge in charge of the case, and as a mother, she especially does not want her young children to fall into the dilemma of choosing to live with their father or mother, and she is more worried that directly asking "Do you choose to live with your father or mother" will hurt the child's young heart.
In order to better protect the rights and interests of minors, Guo Wei decided to launch the "social observation and protection" mechanism in this case, that is, with the participation of professional social workers, visit minors, understand their living environment, and listen to the voices of children.
In this way, Guo Wei and the social caretaker walked into the home of the two brothers together. In the process of communicating with the two brothers, in order to minimize the harm of choosing parents to the child, Guo Wei and the social worker came up with the method of letting the brothers rate all their relatives according to their liking.
The brother gave the younger brother 10 points, the parents 9 points, the grandparents and grandparents 8 points... The younger brother gave everyone a score of 10, and then added, "Although it is all 10 points, the older brother's 10 points are higher." Judging by the scoring order, both brothers put each other first, surpassing Mom and Dad.
When my brother was asked who he preferred his father or his mother and who he wanted to live with, he said firmly: "I will follow who my brother is with, I will discuss with my brother, and we must be together." ”
Faced with the same problem, the younger brother said, "I want to talk to my mother." ”
The judge and the social worker looked at each other and wondered. The younger brother then said, "Because my brother and my mother." "When asked what if my brother and dad were there?" The younger brother thought for a long time and then said seriously, "My brother and I." Because I don't talk to my brother, I can't sleep at night. ”
After the end of the social observation, Guo Wei communicated the child's thoughts with the plaintiff and the defendant. In order to satisfy the two brothers' desire not to live separately, Guo Wei asked their mother Liu Mei if she was considering raising two children, but was explicitly refused, Liu Mei insisted on raising only the eldest; after hearing the child's voice, their father Wang Qiang suddenly changed his mind and took the initiative to ask to raise the two children on his own.
Considering that children need a sense of inner security, changing the life and educational environment may have a certain impact on their psychology and studies, in order to allow the brothers to accompany each other in life, emotionally comfort each other, and Wang Qiang has the corresponding conditions for raising, the final court judgment supported Wang Qiang's claim to raise two children by himself.
The principle of the best interests of minor children
Article 1058 of the Civil Code stipulates that both husband and wife equally enjoy the right to raise, educate and protect minor children, and jointly undertake the obligation to raise, educate and protect minor children. Article 1084 stipulates that children under the age of two years after divorce shall be directly raised by the mother. Where a child who has reached the age of two is unable to reach an agreement on the issue of maintenance, the people's court shall make a judgment on the basis of the specific circumstances of both parties and in accordance with the principle of the most favorable advantage for the minor child;
In many divorce and custody disputes, when a family has two children, it is often caught up in the traditional idea that each parent will raise one. In practice, the court's distribution of custody of multiple children is not simply and mechanically distributed equally, but a comprehensive judgment based on the specific circumstances of the case. If it is more conducive to the physical and mental health of the child if both children are raised by one party, the custody of two children may be awarded to one party.
The judgment of custody ownership always proceeds from the principle of adhering to the principle of being conducive to the physical and mental health of the child and protecting the legitimate rights and interests of the child, combined with the specific circumstances of the parents' ability and conditions, the personal willingness to directly raise the child, the long-term stable living environment of the child, etc., and the child who has reached the age of 8 should also understand and respect the child's personal opinions, so as to finally determine who is more suitable to raise the child.
Article 34 of the Law of the People's Republic of China on the Promotion of Family Education, which will come into effect on 1 January 2022, stipulates that when people's courts hear divorce cases, they shall provide family education guidance to both husband and wife with minor children.
In this regard, the judge also suggested that parents should first strengthen communication and contradictions in marriage. As a parent, you have a natural responsibility for your children, and this responsibility requires parents to learn to be tolerant. When the two are in the world, proper quarrels and mouths may become the spice of life. After having children, parents should communicate and resolve trivial matters and contradictions in life in a timely manner, so as to avoid the escalation and deterioration of contradictions affecting the feelings of husband and wife, and then affecting family harmony. Efforts should be made to create a warm and harmonious family atmosphere for children. In addition, it is necessary to rationally divorce and avoid interference. Freedom of marriage in contemporary society includes the freedom of divorce, and everyone has the right to pursue a happy life. However, when deciding on divorce, parents are requested to rationally negotiate and choose a peaceful method of breakup, so as to avoid intensifying the emotional breakdown caused by divorce into antagonism between the two sides, which in turn affects the feelings of their children and endangers the vital interests of their children. In divorce proceedings, appropriate concessions and efforts should be made to reach consensus, avoid letting children witness their parents turning against each other, and strive to minimize the harm to children at the end of marriage. We must continue to care for and help grow. The child's young mind cannot understand the change and separation of the parents' emotions. Family changes caused by divorce often cause huge fluctuations in the child's young and sensitive heart, which is a situation that the child does not understand but must face. If parents can open their hearts to their children to explain the separation of parents, and if both parties still maintain selfless care for their children after divorce, and protect the child's maintenance costs and the visitation rights of the unmarried parent, they can help the child better survive the emotional and psychological fluctuation period and better adapt to his or her life.
(The characters in the text are pseudonyms)
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