Article 56: In any of the following circumstances, where one of the parents requests a change in the child support relationship, the people's court shall support it:
(1) The party 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.
【Purpose of the Article】
This article is a provision on the legal circumstances in which a parent may request a change in the relationship between child support.
[Interpretation of Provisions]
Generally speaking, a divorce may involve the dissolution of a valid marriage, the division of the property jointly owned by the husband and wife, and the change of child support. Among them, the change of child custody relationship refers to the change from the direct custody of the child by the parents to the direct custody of the child by one of the parents. Although divorce by agreement or litigation can determine which party will directly raise the children from the principle of the best interests of the children, this judgment is mostly a static analysis at a specific point in time at the time of divorce, and the maintenance of children is a long-term dynamic process. With the passage of time, the ability and conditions of the parents to raise the parent on the basis of the negotiation or adjudication at the time of divorce may change significantly, and may even affect the healthy growth of the children. Therefore, from the perspective of what is most conducive to the healthy growth of the child, both parents should be allowed to change the direct custody relationship with the child by agreement or litigation. Judging from the feedback from judicial practice, it is not uncommon for one parent to sue the court to request a change in the child support relationship after divorce. The main reasons for this are as follows: First, the exercise of visitation rights is hindered, for example, because the party directly raising the child refuses or does not allow the other party to visit the child as agreed, and the other party requests to change the direct custody relationship of the child. Second, economic conditions have changed significantly. For example, the party directly raising the child is unable to raise the child directly because the economic conditions have decreased significantly after the divorce, and the party requests to change the direct custody relationship of the child. Third, there is a defect in the payment of child support. For example, the parent who is directly raising the child requests a change in the child's direct custody relationship on the grounds that the other parent has refused, underpaid, or delayed the payment of child support. Fourth, disputes arise over issues related to the basic rights and interests of children, such as the relocation of children's household registration and schooling. Since the change of the relationship of direct custody of children involves at least the vital interests of both parents and children, and there is an opposing and unified relationship between the interests of the three parties, the level of protection of interests and value pursuit should be clearly defined when determining whether to change the relationship. From the consensus of foreign legislation and the evolution of marriage and family legislation in mainland China, it can be seen that the principle of the best interests of children is the most basic principle for handling the relationship between parents and children. At the level of judicial practice, as early as 1993, the Opinions on Child Support Issues in Divorce Cases stipulated that "when a people's court hears a divorce case, the issue of child support shall be properly resolved in accordance with Articles 29 and 30 of the Marriage Law of the People's Republic of China and relevant laws and regulations, starting from the interests of the children's physical and mental health, protecting the legitimate rights and interests of the children, and taking into account the specific circumstances of both parents' ability to raise and raise conditions". Based on the principle of the best interests of the child, Article 16 of the Judicial Interpretation also stipulates the circumstances in which a parent requests to change the direct custody relationship of the child, and the people's court shall support it. Since its implementation, there has not been much controversy in the application of this article, and it has achieved good social and legal effects, so the basic content of this article has been retained, and only some inconsistencies with the expression of the Civil Code have been modified. For example, "children who have reached the age of 10" is amended to "children who have reached the age of eight"; Amend "or" to "or", etc.
1. How to understand "one of the parents requests a change in the child support relationship" in this article
According to article 1058 of the Civil Code, husband and wife equally enjoy the right to support minor children and share the obligation to support them. Therefore, during the existence of the marital relationship, the child lives with the parents and is jointly raised by both parents, and there is generally no question of changing the child support relationship, unless the legitimate child is not the biological child. It is only when the parents are unable to live together due to divorce and are objectively unable to raise the child together that it is necessary to distinguish between direct and indirect custody of the child and to clarify which parent is the parent to raise the child. Once the direct custody of the children is determined due to the divorce of the parents, the children's learning and living environment will basically be stabilized, and in principle, it is not appropriate to change the direct custody relationship of the children. However, in view of the complexity of real life, an exception should be made to allow a change in the direct custody of the child when there is a situation that is no longer in the best interest of the child. Furthermore, the object of this article is mainly the situation where one of the parents requests to change the child support relationship after the divorce. For the purposes of this article, "parents" do not have the requirement of civil capacity, even if they are minor parents or adult parents who have no or limited civil capacity, they may file a lawsuit to modify the direct custody relationship of their children in accordance with this article. The fundamental reason for this is that whether or not to change the direct custody relationship is mainly based on the principle of the best interests of the minor child. In cases where the parent who is directly raising the child has no or only limited civil capacity, changing the direct custody relationship may have a better impact on the child. Children here include minor children and adult children who are unable to live independently. According to Articles 17 and 18 of the Civil Code, a natural person under the age of 18 is a minor. Minors over the age of 16 who rely on their own labor income as their main source of livelihood are to be regarded as persons with full capacity for civil conduct. Therefore, children under the age of 18 who cannot rely on their own labor income as their main source of livelihood are all minor children. What is meant by an "adult child who is unable to live independently"? Article 41 of this Interpretation clarifies that adult children who are still in school and receiving education at or below high school, or who are unable to maintain a normal life due to non-subjective reasons, such as the loss or partial loss of the ability to work. Since the parent-child upbringing is derived from the parent-child relationship, parents have a legal obligation to raise the child as long as the parent-child relationship exists and the child is not capable of living independently. For example, article 1067 of the Civil Code stipulates that adult children who are unable to live independently have the right to demand maintenance from their parents.
From the perspective of real life, there are two main ways for one parent to request to change the direct custody relationship of the child: one is to agree with the other parent to change the direct custody relationship of the child; The second is to sue the other parent to change the child's direct custody relationship. Article 57 of this Interpretation has already provided for the issue of agreement to change the direct custody relationship of the child, which will be discussed in detail below and is omitted here. As for the litigation to modify the direct custody relationship of the child, Article 55 of this Interpretation provides that after the divorce, one of the parents may separately file a lawsuit to modify the direct custody of the child. For the purposes of this article, it clearly stipulates the circumstances under which the people's court may support one party in changing the direct custody relationship of the child. The "child custody relationship" here essentially refers to the direct custody relationship of the child, rather than the so-called "child custody right" in practice. The Civil Code, which has been extended from previous marriage laws to the present, stipulates that the maintenance of minor children by parents is both a right and an obligation, and divorce will only change the maintenance of children from joint parenting by parents to direct support by one parent in the form of a common lifestyle, and indirect support by the other party in the form of alimony.
In judicial practice, the understanding of the above expression can be analyzed from the following perspectives: First, the plaintiff who has the right to change the direct custody relationship of the child is limited to "one parent". As to whether the plaintiff who has the right to change the direct custody of the child includes the children, there are mainly the following different views in judicial practice: the first view is that both adult parents and children can be plaintiffs. The reason is that article 119 of the Civil Procedure Law only requires the plaintiff to have a direct interest in the case, and the parents and children have an interest in changing the direct custody relationship of the child, so all three can be plaintiffs. The second view is that only children can be plaintiffs. The reason is that it is the children who are most affected by the change in the direct custody relationship of the children, and Article 1084, paragraph 3 of the Civil Code has established the principle of the best interests of the minor children, so it is up to the children themselves to decide whether to change the relationship. The third view is that only parents can be plaintiffs. The reason for this is that even if a minor child is allowed to be the plaintiff, it is still up to the parents, as their legal representatives, to decide whether to file and participate in the lawsuit. Rather than that, it would be better to allow the parents to be plaintiffs. The fourth view is that one of the children and parents is a joint plaintiff. The reason for this is that the child and one of the parents have a direct interest in the change of custody and can therefore be co-plaintiffs. Each of the above four views has its pros and cons. All things considered, we prefer the third view. That is, parents have the right to file a lawsuit for modification of the direct custody relationship. First of all, Article 55 of this Interpretation already stipulates that after a divorce, if one of the parents requests to change the child support relationship, or if the child requests an increase in child support, a separate lawsuit shall be filed. This article clearly defines the "one party" in Article 15 of the Opinions on Child Support in Divorce Cases as referring to "one of the parents" and does not include minor children, and excludes minor children as plaintiffs. Second, the fact that the parents are the plaintiffs can simplify and facilitate the lawsuit. If the parents, as the legal representatives of the minor children, file a lawsuit to change the direct custody relationship of the children, they represent the interests of the minor children in the litigation, and the outcome of the case is closely related to them, and the occurrence of conflicts of interest cannot be ruled out. Finally, it is consistent with the subject who confirms the direct custody relationship of the child. The determination of the party who directly raises the child is generally through a divorce agreement or divorce judgment. In both cases, the children are not involved, so it is not necessary to have the children as plaintiffs when changing the direct custody relationship of the children. It should be noted here that in judicial practice, there are still cases where the parents of minor children are also minors. Although minor parents can act as plaintiffs, their legal representatives, that is, the grandparents and maternal grandparents of minor children, should file a lawsuit on their behalf.
Second, either parent may have the right to request a change in the direct custody of the child. Parents here include biological parents, adoptive parents, step-parents who form a parent-education relationship, etc. In judicial practice, it is more common for a parent who does not directly raise a child to file a lawsuit to change the direct custody relationship in order to achieve the goal of being able to directly raise the child. In other words, in most cases, the plaintiff who files a lawsuit for modification of the direct custody relationship is the parent who does not have a direct custody relationship. As for the parent who directly raises the child, there is a view that it is not necessary to give the plaintiff status to the parent who directly raises the child. The reasons are: first, the parent who is directly raising the child is already in a state of direct custody of the child, and there is no need to file a lawsuit for direct custody of the child; Second, if the parent who is directly raising the child is allowed to sue to change the existing relationship of direct custody of the child, it may change the living and learning environment to which the child is already familiar and adapted, which is not in line with the principle of the best interests of the minor child. In our view, the above view is somewhat one-sided. According to the principle of the best interests of the minor child, the first consideration of who will directly raise the minor child should not be the will of the parents, but whether it is conducive to the healthy growth of the minor child. Although it is true that when an agreement or adjudication determines who is to be directly raised by a minor child, it generally complies with the principle of the best interests of the minor child, but it cannot absolutely rule out that the parents have mixed personal interests when deciding who to raise the child, or that the court makes a judgment unfavorable to the minor child on the issue of child custody due to information asymmetry. In addition, even if the arrangement of the child support relationship determined by the agreement or judgment is in line with the principle of the best interests of the minor child at that time, the party directly raising the child may subsequently have a major change in the child's ability to support the child and the conditions of the child's support. Therefore, in order to maximize the interests of the child, the party directly raising the child should be allowed to file a lawsuit to change the relationship between the direct custody of the child. As for the possible adverse effects on the healthy growth of the minor children caused by changes in the children's living and learning environment after the change, they can be taken into consideration by the court when deciding whether to change the direct custody relationship.
Third, the child support relationship includes the relationship between the minor child support relationship and the adult child support relationship who cannot live independently. Articles 1058 and 1084 of the Civil Code stipulate that husband and wife have equal rights to the upbringing, education and protection of their minor children and share the obligation to uphold, educate and protect their minor children. And this right and obligation is not extinguished by the divorce of the parents. Article 1067 of the Civil Code also stipulates that if the parents fail to fulfill the obligation to support them, the minor children or adult children who are unable to live independently shall have the right to demand maintenance from the parents. From the perspective of the above-mentioned interpretation of the legal system, it can be inferred that parents also have the obligation to support adult children who cannot live independently. In reality, adult children who cannot live independently are mainly adult children who are seriously ill or disabled, and do not have the ability to work or even take care of themselves. To some extent, adult children who are unable to live independently need more effort from their parents to raise them than they do with minor children. Therefore, in reality, it is sometimes more necessary to change the direct custody relationship for adult children who cannot live independently than minor children. Furthermore, the expression of this article does not limit the object of regulation to the minor child support relationship, but uses the term "child support relationship" to cover both minor children and adults who cannot live independently.
2. How to interpret the circumstances provided for in this article that the child support relationship shall be changed
As mentioned above, the principle of the best interests of the child should be used as the basic criterion for determining whether to change the direct custody relationship of the child. It is mainly grasped from two dimensions: objective inability and subjective unwillingness. As for the objective impossibility, it mainly depends on whether the existing party directly raising the child has the ability to raise the child. The ability to raise children here is first of all whether the caregiver has the ability to personally take care of the children's daily life. For children, what they need most is the care and care from their parents in their daily lives. This is also the premise and foundation for the healthy growth of children. In real life, the most common reason for parents to lose the ability to care for the child is a serious physical health problem of the parent who is directly raising the child. For this reason, paragraph 1 of this article is expressed as "the parent living with the child is unable to continue to raise the child due to serious illness or disability". The "co-living party" here is the party who directly raises the children in the legal sense. If the parent who is directly raising the child suffers from a serious illness or disability while living with the child, it may result in him or her being objectively unable to continue to take care of the child in daily life and fulfill the obligation to directly raise the child. This is clearly inconsistent with the principle of the best interests of the child. Therefore, once such a situation occurs, the people's court can support the plaintiff's claim to change the direct custody relationship of the child. When the people's court specifically applies this provision, it may proceed from the following aspects: First, whether the serious illness or disability suffered by the party directly raising the child causes the party directly raising the child to objectively become physically unable to take care of the child's daily life. The review here can be carried out by means of judgments from daily life experience, witness testimony of relevant organizations and persons in the place of residence, relevant medical evaluations, and the appearance of persons with specialized knowledge in court. Second, at the end of the trial debate, whether the serious illness or disability suffered by the parent who directly raised the child still exists. If, before the conclusion of the arguments at trial, the parent who is directly raising the child has recovered from a serious illness or disability that no longer affects the daily care of the child, then there is no need to support the plaintiff's claim to change the child's direct custody relationship.
As for subjective unwillingness, the most typical manifestation is that the parent living with the child is unwilling to fulfill the obligation to support the child for various reasons, and even has domestic violence, abuse, and abandonment of the child. In addition, a small number of parents who directly raise their children also have bad habits such as drug abuse and gambling, which can adversely affect the physical and mental health of their children. Therefore, paragraph 2 of this article makes "the party living with the child fails to fulfill his or her obligation to support the child or abuses the child, or his or her life with the child has a negative impact on the child's physical and mental health" as the reason for changing the child's direct custody relationship. According to article 1 of this interpretation, persistent and recurrent domestic violence may be found to be abuse. What does it mean to have a detrimental effect on a child's physical and mental health? From the perspective of judicial practice, major changes in the economic income, housing conditions, place of residence, work style, work location, etc., as well as bad habits, can be regarded as facts that "have an adverse impact on the physical and mental health of the children". It should be noted here that in practice, there are also cases where one parent deliberately fails to fulfill the obligation of support and sues for a change in the direct custody relationship of the child on the grounds of failure to fulfill the obligation of support. The reason for this is that the party directly raising the child is unwilling to raise the child, and the reason why the right to directly raise the child is obtained is either because both parents are unwilling to raise the child and the court will adjudicate it, or in order to get more property in the event of divorce, and agree to directly raise the child. Therefore, it is generally inappropriate to support their request to modify the child's direct custody relationship on the grounds of "not fulfilling the obligation to support the child" as provided for in paragraph 2 of this article. In addition to the parents' reluctance to support them, in practice, there are also situations where the child clearly expresses his or her unwillingness to continue to be supported by the existing direct custody party and requests to change the direct custody relationship. In this regard, Paragraph 3 of this article distinguishes between minor children's civil capacity and stipulates that "a child who has reached the age of 8 is willing to live with another party, and that party has the ability to support them" as a condition for changing the direct custody relationship. This is a derivation of the provision that "everyone is the best judge of his own interests". Minor children who have reached the age of 8 are persons with limited capacity for civil conduct, and already have a certain ability to perceive, understand, and express daily life matters related to them, and are generally more conducive to making corresponding judgments about who they are directly raised. However, the subjective will of minor children is often only their simple emotional choice, which is easily influenced by the coercion and inducement of one parent. Whether the other party is subjectively willing to raise the minors and whether they objectively have the ability to support them to ensure the healthy growth of the minors are also important factors affecting the healthy growth of the minors. Therefore, to apply this claim to change the relationship of direct custody of children, it is necessary to prove: (1) the minor child has reached the age of 8 and is a person with limited civil capacity; (2) The minor child's willingness to live with the parent who is not directly raising the minor child is genuine; (3) The non-direct parent has the ability to support the minor child.
Finally, in view of the fact that in judicial practice, the reasons for one parent to change the direct custody relationship of the child are all kinds of strange, this article also provides that "there are other legitimate reasons for the change", so that the court can handle such cases accordingly according to the specific circumstances of the case and refer to the relevant legal provisions when hearing such cases.
[Issues that should be paid attention to in trial practice]
From the interpretation of the meaning of this article, it can be seen that it mainly regulates the situation in which the direct custody relationship of the biological child can be changed between parents. However, there are other situations in judicial practice that require a change in the direct custody relationship of children, and whether the provisions of this article can be applied by reference are analyzed as follows:
1. Circumstances where grandparents or maternal grandparents advocate a change in the direct custody relationship of their grandchildren or grandchildren
In real life, there are also situations where the parents have died or the parents are unable to raise their children. In this regard, grandparents and grandchildren are lineal blood relations of the next generation, and they can form a relationship of custody and support between them if the legal conditions are met. [1] Article 1074 of the Civil Code stipulates the circumstances in which a grandparent who can afford it has an obligation to support or support his grandchild. According to this article, the following conditions shall be met for the formation of a dependency relationship between grandparents and grandchildren: (1) the parents of the dependent child are deceased or unable to support them. The Marriage Act of 1980 stipulates that grandparents have the obligation to support their minor grandchildren only when their parents have died. Article 28 of the Marriage Act was amended in 2001 to include the circumstance that "parents are unable to support them". (2) Grandparents can afford it. The affordability here is the ability to support the dependents referred to in this article, which mainly focuses on the material supply of the dependent's daily needs. If grandparents do not have the ability to support them, it is difficult for them to actually fulfill their obligations, even if they have an obligation to support them. In practice, there are two main ways for grandparents to fulfill their obligation to support them: one is to live together. That is, the dependent grandchildren and grandchildren live together with their grandparents and are directly raised. The second is indirect support through the payment of child support, regular visits, etc. Since a parenting relationship is allowed to exist between a grandparent and a grandchild under certain circumstances, there may also be circumstances in which a grandparent requests a change in the custody relationship. From a practical point of view, there are at least the following situations: first, when the parents die or are unable to raise the minor child, after the minor child is raised by one of the grandparents or maternal grandparents, the other party requests to change the direct custody relationship; Second, after the divorce of the grandparents or maternal grandparents, one of the grandparents or maternal grandparents who do not directly raise the minor grandchildren or the maternal grandparents request a change in the direct custody relationship; (3) Where the parents are unable to support but still insist on raising them, and the grandparents or maternal grandparents request to change the direct custody relationship; Fourth, after a minor child is handed over to a grandparent or maternal grandparent for support because the parents are unable to raise them, the parents regain their ability to support them and request a change in the direct custody relationship. Although the above situations are not the subject of this article, they may also be considered to be dealt with by analogy with the circumstances provided for in this article.
2. Handling of requests for changes in child support relationships during marriage
According to article 1058 of the Civil Code, during the existence of the marital relationship, the husband and wife equally enjoy and share the rights and obligations to raise their minor children. In judicial practice, the vast majority of disputes over the change of direct custody of children also occur after the divorce of husband and wife, so the object of this article is the situation where one of the parents requests to change the direct custody of the children after the divorce. However, there are indeed special circumstances in judicial practice, such as when one parent discovers that the legitimate child is not born to him/herself, or another person competes for the direct custody of the legitimate child. These will all involve the issue of changing the direct custody of the child. Therefore, during the existence of the marital relationship, disputes over the change of direct custody of children also occur from time to time. In this regard, it can be roughly divided into two categories: first, after one spouse denies the parent-child relationship, refuses to raise the legitimate child, and requests to change the custody relationship from joint custody of the husband and wife to sole custody of the other party; Second, after the third party confirms the parent-child relationship between the child born in wedlock, it requests to change the custody relationship from joint custody of the husband and wife to direct custody by himself. Neither of the above two circumstances is premised on the divorce of the husband and wife, and strictly speaking, the provisions of this article cannot be directly applied. However, to the extent that the purpose of formulating the norms of this article is in the best interests of the children, consideration may be given to applying the norms of this article by analogy for the special circumstances mentioned above. A similar situation may also occur in the form of a custody relationship between a stepparent and a stepchild who is being raised by him/her. Although Article 54 of this Interpretation already stipulates that, at the time of divorce, if the stepfather or stepmother does not agree to continue to raise the stepchild who has been raised and educated by the stepfather, the stepfather or stepmother cannot be forced to directly raise the child. However, this article does not stipulate that a stepfather or stepmother who wishes to continue to raise the child cannot directly raise the child. Proceeding from the principle of the best interests of the minor child, a stepfather or stepmother who has the ability and willingness to support the minor child shall be allowed to request a change in the direct custody relationship of the stepchild who has been raised and educated by the stepmother in the event of the circumstances provided for in this article.