Article 48: Where on the premise that it is conducive to protecting the interests of the children, the people's courts shall support the agreement between the parents and the parents to take turns to directly raise the children.
【Purpose of the Article】
This article deals with the agreement of both parents to take turns raising the child directly.
[Interpretation of Provisions]
This article is derived from Article 6 of the Opinions on Child Support Issues in Divorce Cases, which stipulates that "if the parents agree to take turns raising the children on the premise that the interests of the children are protected, it may be permitted." "The system of alternate parenting by both parents still has important practical significance and value in judicial practice, and this article is retained. In addition, considering that if both parents agree to take turns raising their children, both the direct and non-direct raising spouses have equal rights and obligations to raise the children, and for the purpose of standardizing expression, this article adjusts "agreement to take turns to raise children" to "agreement to take turns to raise children"; Adjust "may be permitted" to "the people's court shall support it".
1. The establishment of a system in which husband and wife agree to take turns raising children
(1) Theoretical basis
1. Parental authority. Parental authority is a system that regulates the relationship of rights and obligations between parents and children, and focuses on the upbringing and protection of minor children. Parental authority includes rights and obligations to minor children in terms of status and property. It mainly includes: (1) the rights and obligations of parents to protect and raise minor children. (2) Parents' right to discipline their minor children. That is, when necessary, parents may appropriately discipline their children to the extent permitted by law. (3) The right to designate a place of residence. Minors shall live with their parents or in a place designated by the person with parental authority. However, this restriction does not apply with the consent of the parents. (4) Legal representation. Parents are the legal representatives of their minor children and have the right to act on behalf of their children in legal acts permitted by law. (5) The right to manage the property of minor children. Property acquired by minor children through inheritance, gift, or other means is the personal property of minors. The personal property of minors is jointly managed by their parents. Parents have the right to use and benefit from the property of their minor children, but they must not dispose of the property of minors unless it is for the benefit of the minor children. According to the relevant provisions of the Civil Code, parents have the right and duty to educate and protect their minor children. The relationship between parents and children is not extinguished by the divorce of the parents. After divorce, the children are still the children of both parents, regardless of whether they are directly raised by the father or mother, and the parents still have the rights and obligations to raise, educate and protect the children.
2. The principle of the best interests of minor children. Also known as the "principle of the best interests of the child" and the "best interests of the minor child", it means that when social organizations or persons related to the interests of minor children carry out legislation on issues involving the interests of minor children and handle matters related to minor children, they should adhere to the principle of maximizing and optimizing the interests of minor children, and take the realization of the best interests of minor children as the primary consideration. The Convention on the Rights of the Child, adopted by the United Nations in 1989, stipulates that the best interests of the child shall be a primary consideration in all matters concerning children. Soon after the entry into force of the Convention on the Rights of the Child, the Standing Committee of the National People's Congress of the People's Republic of China ratified and acceded to the Convention. Under the influence of this principle, it can be seen in the relevant laws and norms of the mainland that the state attaches great importance to the survival, development and protection of children's rights.
One of the consequences of divorce is that the minor children cannot live with both parents at the same time, and the issue of custody distribution is involved, in which case the interests of the minor children should be fully considered and the custody distribution should be carried out in accordance with the principle of the best interests of the minor children. Article 1084, paragraph 3 of the Civil Code clearly stipulates that maintenance disputes shall be handled "in accordance with the principle of the best interests of the minor child". Articles 27 and 35 of the Civil Code stipulate that parents, as guardians of minor children, shall perform guardianship duties in accordance with the principle of the best interests of the ward. The relevant provisions of the Civil Code conform to the international development trend of the protection of children's rights and the human rights movement, and are the embodiment of the principle of "maximizing the interests of the child" in the Convention on the Rights of the Child in mainland legislation. The emphasis on the interests of minor children in legislation should also be taken into account in the judicial practice of guardianship and custody cases. In custody cases, the principle of the best interests of the child requires two aspects: first, the minor child is regarded as an independent subject of rights, and its right to express its will in relation to its own rights and interests is fully respected; The second is to take the interests of minor children as the primary consideration in the ownership of custody, and the interests of the family and parents cannot be put above the interests of the children, so as to maximize the protection of the interests of minor children. In trial practice, when the people's courts hear the issue of the ownership of children in divorce cases, they should always proceed from the interests of the children's physical and mental health and the protection of the children's lawful rights and interests.
(2) Realistic basis
Although divorce does not eliminate the relationship between parents and children, the way in which parents raise their children will change as a result of divorce, that is, the joint upbringing of children by both parents will change to the direct upbringing of children by one of the parents. In practice, there are many disputes over "contention" or "pushing" child support during divorce. Some husbands or wives regard their children as the "root of life" and have to raise them directly, and take this as a prerequisite for divorce; Some regard direct support for their children as a "burden" or an obstacle to remarriage, and they are unwilling to raise them, resulting in a cause of trouble, and even cases where the existing parties leave their children in the court or stay in the units of both parties or relevant organizations for temporary support. This has seriously affected the court's proceedings and affected the healthy growth of the children, and the system of rotational custody provides legal protection for this to a certain extent.
1. It is conducive to ensuring the physical and mental health and material life of children. Family education is very important for the growth of minors, and complete paternal and maternal love helps minors form a good world outlook, outlook on life, and values. The single-parent parenting model severs the close connection between the minor and one of the parents, so that he cannot receive complete fatherly and maternal love, which is not conducive to his physical and mental health. The adoption of the method of taking turns raising children by agreement can ensure the contact between children and their parents, so that children can get relatively complete father's and mother's love, minimize the harm to children due to parental divorce, improve the quality of upbringing, and help children develop healthily in physical, intellectual, emotional and other aspects, so as to meet the requirements of modern society.
2. Protect the rights of both parties to raise their children. Under normal circumstances, parents hope that their children will grow up under their own care, and in the single-parent parenting model, minor children only have close ties with the direct parenting party, and both divorced parents hope that the custody of their children will be in their own names, so disputes arising from the struggle for custody often occur in judicial practice, and such disputes are often accompanied by quarrels, mutual accusations and even malicious slander, which will not only alienate the relationship between the divorced parents, but also may affect the minor children's evaluation of their parents. In the case of unilateral support, these problems are difficult to address in a practical or integrated manner. Relatively speaking, because the rights and obligations of both parties are relatively balanced by taking turns to raise children, not only can the rights of the divorced parties be properly safeguarded and their obligations can be effectively fulfilled, but also their physical and mental health can be guaranteed while the rights and interests of the children in material life, medical care and education are effectively guaranteed.
3. Reducing contradictions is conducive to social stability. At present, a relatively large proportion of the divorce cases accepted by the people's courts involve the issue of child support after divorce. For example, in judicial practice, it often happens that one party does not pay child support or the child support payment is not enough to maintain the children's education expenses, living expenses, medical expenses, etc.; In addition, although the marriage and family section of the Civil Code stipulates the right of visitation of the party who is not directly dependent after divorce, due to the influence of traditional concepts, the exercise of the right of visitation is often obstructed by the other party. Alternate custody can realize the intimate contact between minor children and parents, and can meet the needs of both parents for custody, that is, the tension between the two can be effectively alleviated through rotational custody, which is conducive to eliminating custody disputes. If the divorced parties can reach an agreement on the issue of child support in turn and consciously perform it, it can greatly reduce the various conflicts between the parties for the maintenance of the children, thus helping to protect the legitimate rights and interests of both parties and their children, and even avoiding and reducing the adverse impact on the normal production order, work order, and teaching and management order of the relevant units and departments due to the competition for the adoption of children, and is conducive to social stability.
2. Conditions under which the husband and wife agree to take turns raising their children
(1) It is to be determined by agreement between the husband and wife
The essence of a rotational maintenance agreement is that both parties express the same intentions, and the law should not interfere too much. This is an important mark that distinguishes it from direct support by one party. The direct custody of one party may be agreed upon by both parties or determined by a court judgment; At present, the mainland only allows the two parties to agree on the method of taking turns to raise children. This is mainly because the application of rotational custody is much more complex than that of one parent, with multiple uncertainties, different gender, age, family environment, economic status, etc., the children's needs for their parents are different, and both parties need to coordinate and cooperate. The content of the rotation agreement generally includes the specific method of taking turns to support the child, the cycle, place and time arrangement of the rotation of support, the right of visitation, the burden of child support, the handling of special circumstances of one party and the inability to support the child according to the agreed time, and the handling of disputes. The alternate custody agreement should be made voluntarily by both parents in the interest of the healthy growth of the child, and the people's court should play the role of a passive approver.
(2) The age range of the child
If the children are over the age of two and under the age of eight, the husband and wife may, in principle, directly agree to take turns raising them. For children under the age of two and those who have reached the age of eight, according to Article 1084 of the Civil Code, after divorce, children under the age of two shall be directly raised by their mothers. Where the parents fail to reach an agreement on the issue of custody for a child who has reached the age of two, the people's court is to make a judgment based on the specific circumstances of both parties and in accordance with the principle of the best interests of the minor child. Where children have reached the age of 8, their true wishes shall be respected. Therefore, children under the age of two years should, in principle, be raised directly by their mothers; Minor children over the age of 8 usually have a certain degree of discernment and judgment, and whether they are willing to take turns should seek the opinions of the children themselves, and let them make their own choices.
(3) On the premise that it is conducive to the growth of children
The premise of alternate custody is conducive to protecting the interests of the children, and if one of the parents has violent tendencies, or has vices such as drug and alcohol abuse, and direct custody is not conducive to the child's physical and mental health and growth, the rotation maintenance system should not be applied. Article 56 of this Interpretation provides: "In any of the following circumstances, where one of the parents requests to change the child support relationship, the people's court shall support it: (1) the parent living with the child is unable to continue to raise the child due to serious illness or disability; (2) The party living with the child does not fulfill the obligation to support the child or abuses the child, or the party living with the child has a negative impact on the child's physical and mental health; (3) A child who has reached the age of 8 and is willing to live with another party who has the ability to support them; (4) There are other legitimate reasons for the change. Accordingly, in the course of taking turns to raise children, the custody relationship may also be changed in accordance with law based on changes in the actual circumstances of both parents or the children, that is, if the party directly raising the child has the circumstances described above that are not conducive to the healthy growth of the child, and the other party requests to change the child support relationship and request that the child be directly raised by one of them, the people's court should support it in principle. It should be noted here that, according to Article 55 of this Interpretation, after a divorce, if one of the parents requests to change the child support relationship, it shall file a separate lawsuit.
[Issues that should be paid attention to in trial practice]
Although the subject of custody disputes is both parents, the final outcome is closely related to the interests of the dependents, and how to effectively protect the rights and interests of minor children and respect the wishes of minor children of appropriate age in divorce disputes, child support disputes, and other cases is an important issue in trial practice. We believe that the review should be carried out based on the basic principle of maximizing the protection of the interests of the children, so as to ensure that the alternate custody agreement is conducive to the healthy growth of the children and the protection of their legitimate rights and interests, and that both parents have the realistic conditions to fulfill them. Attention should be paid to the following issues in trial practice:
1. The direct supporter of the agreement to take turns to raise the child shall be the main one in person
After the divorce of the husband and wife, the direct custodial party should mainly raise the minor child in person, because the direct upbringing effect of the parents on the child is irreplaceable. If the parent who is directly raising the minor is only the "nominal" guardian, and the minor child is actually taken care of by grandparents or other relatives, resulting in a complete separation of custody from actual custody, the minor will be effectively separated from the direct custody of both parents, and will lack the care of father and mother in the process of growing up. For example, in the following case, after the divorce of a man and a woman, the husband and wife took turns to raise the children through mediation, but after that, due to the man's work, he could not often go back to his hometown to visit the woman's claim. On the other hand, the woman has a stable job and residence, and has a commercial shop in her name, has the financial foundation to raise her children, and has also enrolled her in the school where the dependent is domiciled. From the perspective of the dependent, he is still young and has reached school age, is in an important stage of growth, and needs his parents to devote more energy and take care of him by his side, and the long-term separation between the dependent and his parents will inevitably have an adverse impact on the life, study and psychology of the dependent, which is obviously not conducive to maximizing the interests of the dependent, so the court supported the woman's claim.
2. Determination of the period of support in the agreement of rotational support
The period of custody is the result of the autonomy of both parents, and when the cycle of parental consultation is seriously detrimental to the child's growth and physical and mental health, the court should require both parents to renegotiate. The period of maintenance includes the beginning and end of the period of rotational support, as well as the rotation cycle of each time. Under normal circumstances, it is advisable for parents to live in the same urban area, and if parents live in different places, it is not conducive to the study and life of minor children. As for the length of the period of direct support in turn, the two parties can agree on their own, and they can take turns once in one month or several months, or they can agree on one rotation in one year or half a year. We believe that the time for direct support in turn should be appropriately grasped, and the time is too short, and the frequent changes in the children's living environment are not conducive to the physical and mental health of the children; Too long is not conducive to enhancing the relationship between children and parents, and is not in line with the original intention of taking turns to raise children. In general, for preschool children, the upbringing period is generally at least 1 to 2 months; If the child has already enrolled in nursery or school, it is advisable to live in one semester or one school year, and each time he or she can move to live with the parent with direct care before the start of school. The time for both parties to raise each other can be adjusted according to the actual situation, and it is not necessarily necessary to be consistent. It should also be noted that under the current household registration system in the mainland, it is not appropriate to transfer the child's household registration between the two parents, and both parents should agree that the child's household registration will be placed in the household registration of one party.
3. Contribution of maintenance in rotational maintenance
After a divorce, both spouses are equally financially responsible for the maintenance and education of their children. After the divorce, if the children are directly raised by one party, the other party shall bear part or all of the child support. Child support includes expenses such as children's living expenses, education expenses, medical expenses, etc.
Taking turns in the custody of children does not mean that one parent is exempt from the obligation to pay maintenance when the other parent is directly raised. On the premise of ensuring that the lawful rights and interests of the children are not harmed, the parties may agree that one party shall bear the maintenance fee by itself during the maintenance period, or the other party shall pay a certain amount of child support; It may also be agreed that when one party is unable to raise the child due to special circumstances and the other party is able to raise the child on his behalf, one party shall compensate the other party for certain maintenance expenses according to the length of the maintenance period. In practice, there are generally two schemes: one is that both parents bear the child's living expenses, medical expenses, and education expenses during the period of rearing; Another option is for both parties to jointly contribute a certain percentage of the funds to the child's support. The method of burden of alimony can be reached by agreement between the two parties, and if no agreement can be reached, the people's court may be requested to intervene in the settlement.
4. Take turns to support the Central African co-living party to exercise the right of visitation
Article 1086 of the Civil Code stipulates that after divorce, the parent who does not directly raise the children has the right to visit the children, and the other party has the obligation to assist. The manner and time of exercising the right of visitation shall be agreed upon by the parties; If the agreement is not reached, the people's court shall make a judgment. Where a parent's visit to a child is detrimental to the child's physical and psychological health, the people's court is to suspend the visit in accordance with law; Visits shall be resumed after the reason for the suspension has disappeared. The law stipulates the right of visitation, which is an extension of parental authority based on the specific status relationship between parents and children, and aims to meet the needs of the parent who is not directly raising the child for the care, upbringing, and education of the child, and to enhance the emotional communication and exchange between the child and the parent who is not directly raising the child. On the one hand, the purpose of alternate custody is to protect the custody rights of both parties to the divorce, and more importantly, to ensure that the minor children receive relatively complete paternal and maternal love. In the case of alternating parenting, the parent who does not live with the child has the right to visit the child during the period when one parent is directly raising the child, and the parent who is directly raising the child has the obligation to assist. The party directly raising the minor should cooperate with the other party in properly exercising the right of visitation, whether from the perspective of protecting the physical and mental health of the minor child, or from the perspective of complying with the principle of good faith and the provisions of the Civil Code on visitation rights, so that the minor can feel the love from both parents. This also helps to strengthen the emotional bond between parents and children and maintain the continuity of the rotation of care between the two parties.
The main content of the right of visitation is to meet and communicate directly, but also includes letters, information exchanges, video calls, etc. No matter what method is adopted, it must be based on the premise that it does not affect the children's learning and life. In practice, some parents mistakenly believe that the children should be exclusively entitled to parental authority during the period of direct custody of the children during the period of direct custody in turn, so they refuse to allow the other party to visit the children, or take some methods to cut off the contact between the other party and the children, which obviously violates the provisions of Article 1086 of the Civil Code and the original legislative intent of this article. Of course, the parent who does not directly raise the child must also properly exercise the right of visitation in accordance with the law. If the exercise of the right of visitation by the parent is not only detrimental to the physical and mental health of the child, but may even endanger the physical and mental health of the child, the exercise of the right of visitation may be suspended in accordance with the provisions of paragraph 3 of article 1086 of the Civil Code.
Where children are raised in turn, the parties may agree on the manner, time, and place for the non-cohabiting party to exercise visitation rights. From the perspective of being conducive to the healthy growth of the children, the parties should negotiate the time of the visit, the method of the visit, the place of the visit, and the arrangements made by both parties for the children during the visit. Article 65 of this Interpretation stipulates that if an effective divorce judgment rendered by a people's court does not involve visitation rights, and the parties separately file a lawsuit on the issue of visitation rights, the people's court shall accept it. Accordingly, when the parties are unable to reach an agreement on matters relating to visitation rights, especially if the party directly raising the child refuses to visit the child without reason, the party enjoying the right of visitation may file a lawsuit with the people's court in accordance with the relevant provisions of the Civil Procedure Law.