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The first paragraph of Article 27 of the Civil Code of the People's Republic of China stipulates that parents are the guardians of minor children. Paragraph 2 of the same article stipulates: Where a minor's parents have died or have no guardianship capacity, grandparents, maternal grandparents, and other persons with guardianship capacity are to serve as guardians in order. According to the provisions of this law, when determining the guardianship of a minor, the parents are preceded by grandparents and maternal grandparents. However, in a case recently accepted by the Shanghai Songjiang District People's Court, the judge encountered a difficult problem.
When a mother's love meets a child's rejection
Where does custody go?
Mr. Wu and Ms. Jin were married on a business trip, and the two in love married and gave birth to a son, Xiao jun. However, the good times did not last long, because Mr. Wu worked in the field for many years, Xiaojun was born only two years after his birth and the couple broke up and separated, and Xiaojun lived with his grandparents. A few years later, Ms. Jin sued for divorce from Mr. Wu, and her son Xiaojun was sentenced to be raised by Mr. Wu.
I thought that the family's life could be calm, but a year later, Mr. Wu died of a serious illness. Before the 8-year-old Xiaojun came out of the grief of losing his father, a new lawsuit began. Ms. Jin sued her grandparents, Lao Wu and his wife, to the court and asked Xiaojun to be raised by herself.
As a mother, Ms. Jin is in good health and has a stable income, and in the event of the death of the child's father, Ms. Jin asked to raise the child, which was beyond reproach. Moreover, the old Wu couple is indeed old and in poor health, and is not suitable for taking care of Xiao Jun. However, Lao Wu and his wife argued that because Xiaojun himself did not want to live with Ms. Jin, they could not agree to the original teller. Before Ms. Jin sued, they had handed Xiaojun over to Ms. Jin to take home, and only three days later, Xiaojun escaped.
Since Xiaojun has reached the age of 8, Judge Cai, who is in charge of the case, has talked to Xiaojun himself many times, and found that Xiaojun's attitude has always been very resolute, refusing to live with his mother and refusing to accept the mediation plan proposed by Judge Cai.
Xiaojun said that Ms. Jin had neglected to care about herself since she was a child, and after she separated from her father, she rarely came to visit him, and quarreled as soon as she came. Xiao Jun was locked at home and unable to go to school after returning to Ms. Jin that time, which caused him to be emotional and almost died, so he fled back to his grandparents' house.
In order to properly handle this dispute and effectively protect the rights and interests of minors, Judge Cai came to Xiaojun School, neighborhood committees and psychologists to investigate and visit. The class teacher said that he usually had more contact with Xiaojun's father, grandmother and aunt, and his mother rarely came to school, and Xiaojun clearly expressed his willingness to live with his grandparents. The psychologist said that after the death of Xiaojun's father, Xiaojun's mood was very poor, and due to his mother's prosecution, Xiaojun's psychological condition was even more unsatisfactory, and he had carried out psychological counseling many times. From a professional point of view, they recommend not to change the status quo of parenting easily.
After in-depth understanding of facts such as Xiao Jun's true will and the current situation of raising, the court held that:
First, Xiaojun has lived with his father and grandparents since he was a child, with deep feelings and stable life, and his aunt's family also loves him.
Second, in the divorce and custody lawsuits, Xiaojun repeatedly expressed his desire to live with his father and grandparents instead of his mother.
Third, Xiaojun's emotional state is unstable due to the loss of his father, litigation and other reasons. Therefore, not changing the state of support and guardianship and continuing the living environment is not only conducive to his life and study, but also conducive to his emotional stability, and the current state of life is more conducive to the growth of Xiaojun.
In the end, proceeding from the principle of the best interests for minor children, and taking into account the true wishes of the children who have reached the age of eight, the court rejected Ms. Jin's claim.
In his judgment, the judge wrote in a serious tone:
As the mother of the child, Ms. Jin should usually be active and active in caring for the child, communicate with the child more, and gradually cultivate the feelings with the child, and after the establishment of a certain emotional foundation between Ms. Jin and the child in the future, Ms. Jin can still directly raise the child.
Neither party appealed after the verdict. The judgment has entered into force.
At present, the law does not expressly provide for alternate custody. With regard to child custody disputes, the third paragraph of Article 1084 of the Civil Code stipulates two principles, namely, the principle of being most beneficial to minor children and respecting the true will of minor children. Proceeding from the facts of the case, the judge follows the above two principles, pays attention to the integration of reasonable law, and makes a judgment that takes into account the people's legal conditions. The two sides served the judgment and closed the case, achieving good legal and social effects.
<h1 class="pgc-h-arrow-right" data-track="83" > judge's reminder</h1>
The parent-child relationship will not end due to the end of the marriage relationship, and the party who cannot live with the child should give the child more spiritual care and lay a solid warm background for the child's future.
<h1 class="pgc-h-arrow-right" data-track="82" > legal link</h1>
Article 31 of the Civil Code of the People's Republic of China
Where there is a dispute over the determination of a guardian, the residents' committee, villagers' committee, or civil affairs department of the ward's domicile is to appoint a guardian, and where the parties concerned are dissatisfied with the designation, they may apply to the people's court for the appointment of a guardian; the parties concerned may also directly apply to the people's court for the appointment of a guardian.
Residents' committees, villagers' committees, civil affairs departments, or people's courts shall respect the ward's true wishes, and appoint guardians among those with guardianship qualifications in accordance with the principle of the ward's greatest benefit.
Where, prior to the appointment of a guardian in accordance with paragraph 1 of this article, the ward's personal rights, property rights, and other lawful rights and interests are left unprotected, the residents' committee, villagers' committee, relevant organization or civil affairs department provided for by law for the ward's domicile is to serve as the temporary guardian.
After the guardian is appointed, it shall not be changed without authorization; if it is changed without authorization, the responsibility of the designated guardian shall not be exempted.
Paragraph 3 of Article 1084 of the Civil Code of the People's Republic of China
After divorce, children under the age of two shall be directly raised by the mother. Where a child who has reached the age of two fails to reach an agreement on the issue of maintenance between the two parents, 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. Where a child has reached the age of eight, his true wishes shall be respected.
Article 14 of the Law of the People's Republic of China on the Protection of Minors
Parents or other guardians shall, on the basis of the age and intellectual development of minors, inform themselves when making decisions related to the rights and interests of minors, and listen to their opinions.
Source| Shanghai Songjiang District People's Court
Author: Cai Jun, Wang Yanping
Responsible Editor | Zhang Qiaoyu
Statement| please indicate that it is from the "Shanghai High Court"