Couples divorced
It represents the end of an emotion
But love and responsibility for children
Cannot be lost
In marital and family disputes
How to ensure that the interests of minors are maximized?
Snatch and hide children before divorce
Awang and his wife Xiaodan began to live separately due to conflicts a year after the birth of their son, and the son has been taken care of by Xiaodan. When his son was almost 2 years old, Awang suddenly took his son away without Xiao Dan's consent. After that, Xiao Dan never saw his children again.
In July 2012, Xiao Dan filed a lawsuit with the court, and since the child was not yet 2 years old at the time, the court ruled that Xiao Dan and Ngawang divorced and the son was raised by Xiao Dan. Instead of fulfilling his sentence, however, Ngawang took his son back to his hometown in Fujian and left him to be raised by his parents. It wasn't until 2018, when the child was 8 years old and Xiao Dan found his son's school in Fujian, that Ngawang filed a lawsuit with the court, demanding that the child be raised by himself.
In the course of the first instance, the 8-year-old child expressed to the court his desire to live with his father, Awang, but the court held that Awang forcibly took his son away without Xiao Dan's consent, and did not voluntarily deliver the child to Xiao Dan after the judgment took effect, resulting in the child being separated from the mother's love for a long time. Both Dan and Awang were not satisfied and appealed.
At the second instance, the Shanghai No. 1 Intermediate People's Court found that after Ngawang took his son away in 2012, he had been cared for by his parents, and that Ngawang had been working in other places for a long time and did not live with his son. In 2017, after the child reached the school age, the child was enrolled in a false name, and the real name was not changed until 2018. After his son changed back to his real name, Xiao Dan quickly found the primary school where his son attended, and Awang then asked for leave from school, and the child never went to school again. In addition, Ngawang rejected the court's request to bring his son to the court for information.
The Shanghai No. 1 Intermediate People's Court held that Ngawang had taken away his young child without authorization, causing the child to lose his mother's love from an early age, causing serious harm to both Xiao Dan and the child. Later, Ngawang refused to comply with the effective judgment and enrolled the child in a false name, the purpose of which was to prevent the mother from finding the child.
Ngawang only has the right to claim a change in custody if the effective judgment is performed in accordance with the law, and Xiao Dan does have a statutory circumstance that is not suitable for the custody of the child, or if the two parties have reached an agreement. Now that Ngawang had violated the law and the appeal request was not established, the judgment was changed to revoke the first-instance judgment and reject Ngawang's appeal.
From the perspective of maximizing the interests of minors
Xiao Xiao and her husband Aaron have a son Xiao Chen, and the family of three was originally happy and happy. However, when Xiao Xiao was promoted to financial director, he often worked overtime and socialized until late at night before returning home, and the contradictions and quarrels between the two became more and more. The quarrel escalated, the two began to fight, Xiao Xiao was injured and reported to the police that he had been beaten by her husband, and Aaron wrote a letter of assurance in front of everyone that he would not beat his wife again.
Later, the two once again had a fierce quarrel. This time, Aaron sneaked into his car and lit the coals to prepare to commit suicide. Xiao Xiao found out in time and called the police to save Aaron. Xiao Xiao then left home with her son and began a life of separation with Aaron.
In 2020, XiaoXiao filed a divorce lawsuit with the court and asked her son to follow him. In view of the fact that Aaron has a fixed house in Shanghai and his son Xiaochen has lived here since he was a child, combined with the existing conditions of Xiaoxiao and Aaron, the court of first instance ruled that the two divorced, and Xiaochen lived with his father. Xiao Xiao was not satisfied and appealed.
During the second trial, Xiao Xiao provided a transcript of the police station's interrogation, which showed that Aaron was violent when the two clashed. The Shanghai No. 1 Intermediate People's Court also found that Xiao Xiao had now rented a house near Xiao Chen's school in order to facilitate the care of her son, and asked Xiao Xiao's mother to assist him in taking care of him.
The Shanghai No. 1 Intermediate People's Court held that Xiao Xiao had a fixed income and that his income could support his rented house to provide a stable place for his son; while Aaron had committed domestic violence against Xiao Xiao, received administrative punishments, acted extremely in dealing with family conflicts, and did not have a mature mind; his son Xiao Chen had lived with the two since he was a child, and the two had been raised by Xiao Xiao since they separated. From the perspective of maximizing the interests of minors, the Shanghai No. 1 Intermediate People's Court changed the judgment to Xiao Chen to live with his mother Xiao Xiao.
Arrears in maintenance and medical bills
After xiao qiu and Dawei's son was born, the two often quarreled over trivial matters in life. When his son was not yet 1 year old, Dawei left home and began to live separately from Xiao Qiu. In 2015, Xiao Qiu went to court to sue for divorce, but Dawei disagreed and said that he was willing to bear the child's maintenance and medical expenses.
The court rejected Xiao Qiu's claim and ordered Dawei to pay 40,000 yuan in maintenance and more than 7,000 yuan in medical expenses from the beginning of their separation to January 2016 at a rate of 2,000 yuan per month. However, after the verdict, the relationship between the two did not improve. After four years of separation, Xiao Qiu once again filed a divorce lawsuit with the court, asking her son to live with her, and Dawei paid 3,000 yuan per month in maintenance until his son was 18 years old, and paid more than 3,900 yuan for his son's medical expenses.
The court ruled in the first instance that the two divorced, the son lived with Xiaoqiu, and Dawei paid 2200 yuan in maintenance every month until his son was 18 years old. Xiao Qiu and Dawei were not satisfied with the verdict and appealed to the Shanghai No. 1 Intermediate People's Court.
In the second instance, Xiao Qiu claimed that the child had a congenital disease, and Dawei had never paid maintenance and medical expenses, and requested the court to order Dawei to pay a one-time maintenance fee according to the standard of 2200 yuan per month. Dawei said that he failed to start his own business and could not pay follow-up maintenance in one lump sum. The Shanghai No. 1 Intermediate People's Court found that Dawei had not yet paid the maintenance and medical expenses identified in the 2016 effective judgment.
The Shanghai No. 1 Intermediate People's Court held that the child is still young, and it is appropriate for the child to follow the mother's life in combination with the current situation of Xiaoqiu and Dawei. Although Dawei is temporarily unemployed, he has a master's degree, has not lost the ability to work, is fully capable of finding a job that is compatible with his own ability, and has the ability to pay 2200 yuan per month for child support. Given that Dawei has been in arrears in maintenance and medical expenses, and his son suffers from congenital diseases, if Dawei does not pay maintenance on time, it is very likely to affect the healthy growth of the child. In order to protect the legitimate interests of minors to the greatest extent possible, the Shanghai No. 1 Intermediate People's Court changed the judgment to Dawei to pay a one-time maintenance fee of 2,200 yuan per month to the age of 18.
How is custody determined?
In handling disputes involving minors in marriage and family disputes, consideration should be given to minimizing the harm caused to minors by parental divorce, and fully protecting minors' identity interests, emotional interests, security interests, and property interests. However, in practice, due to factors such as the different parenting conditions of both parents and the different needs of minors, there are many difficulties in how to carefully grasp and accurately weigh between love, reason and law, and make optimal rulings.
The determination of custody ownership is often considered from a number of factors. For example, maintaining the stability of the existing living environment of minors. However, in reality, there are often cases where both parents take illegal means such as malicious robbery and concealment to compete for the custody of their children, resulting in "a fait accompli of the child's life with their own side".
In Case 1, the father's behavior was morally contrary to common sense and legally illegal. Where such refusal to perform a custody judgment, snatching or hiding minors through illegal means, and using the fait accompli of living together as a claim or defense in subsequent litigation, the court shall make a clear negative evaluation and corresponding sanctions on the basis of the nature of the parties' conduct, and not support their claims or defenses.
For example, a party who has committed domestic violence should not directly serve as the custodian of minor children. Whether domestic violence causes direct or indirect harm to minor children, it will have a negative impact on their healthy physical and mental development. In line with the principles of zero tolerance for domestic violence and special protection for minors, the court should consider the circumstances of domestic violence committed by one party as a negative factor when determining the direct custody of minors.
In Case 2, the father's domestic violence against his mother and his excessive behavior in handling family affairs became one of the important bases for the court to change the judgment.
With regard to maintenance, maintenance generally includes living expenses, education expenses, and medical expenses, but medical expenses do not include medical expenses for sudden and specific diseases. For such medical expenses, if they do occur, they may be claimed separately. The method of payment of maintenance expenses is generally based on the principle of periodic payment, with the exception of one-time payment.
In Case Three, the father should not have paid the child's maintenance and medical expenses for a long time on the grounds of unemployment. The court's decision in exceptional circumstances that one parent pays the entire amount of maintenance of the child up to adulthood is a bottom-line protection of the minor's right to subsistence, the right to health and other legal rights based on it.
Source: Public number @ Shanghai No. 1 Intermediate People's Court
Photo @ Visual China
Edit | Shen Wenting (Intern)
Maintain | Li Yi Zhang Ziliang
Editor-in-Chief | Wang Xiumin