Article 1086 of the Civil Code of the People's Republic of China provides:
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 for exercising the right of visitation are to be agreed upon by the parties; where the agreement fails, the people's court shall make a judgment.
Where a parent visits a child, which is detrimental to the child's physical and mental health, the people's court shall suspend the visit in accordance with law; after the reason for the suspension disappears, the visit shall be resumed.
Laws evolve
The first draft of the Civil Code clearly stipulates the "right of intergenerational visitation": grandparents and maternal grandparents may refer to the relevant provisions on visiting children by divorced parents to visit their grandchildren and grandchildren.
The second reading draft of the Civil Code narrows the scope of application of the "right of intergenerational visitation": grandparents and maternal grandparents may visit grandchildren and grandchildren only if they have fulfilled their maintenance obligations to their grandchildren or grandchildren, or in the event of the death of one of the grandparents or grandchildren, they may refer to the relevant provisions on visiting their children by divorced parents.
The third draft of the Civil Code deletes the "right to visit from one generation to another", and the answer given by the Constitution and Law Committee is: "In view of the fact that there is no consensus on this at present, it may be considered not to stipulate that grandparents and maternal grandparents should visit each other in the Civil Code for the time being, and if there is no consensus with the party directly raising the child, it can be resolved by the people's court according to the specific circumstances through litigation." ”
Although the "right of intergenerational visitation" has not entered the formal provisions of the Civil Code, it can be seen from the answers of the Constitution and Law Committee that the "intergenerational visitation right" is only temporarily inappropriate to be stipulated as a system, but in practice cases, the "intergenerational visitation right" has been widely existed.
Influencing factors of "intergenerational visitation rights" in judicial practice
01: Grandparents and maternal grandparents have the obligation to raise their grandchildren and grandchildren
On November 21, 2016, the Supreme People's Court issued the Minutes of the Eighth National Court Work Conference on Civil and Commercial Trial Work (Civil Part), which stipulates in Article 3 on the protection of minors: "Grandparents and maternal grandparents have fulfilled their obligation to support minor grandchildren and grandchildren whose parents have died or whose parents are unable to support them, and their right to visit their grandchildren and grandchildren on a regular basis shall be respected and shall have the right to obtain judicial protection through litigation." ”
On July 18, 2019, the Jiangsu Provincial High People's Court issued a guideline for the trial of family dispute cases (marriage and family part): "The main body exercising the right of visitation is the parent who does not directly raise the child, and the subject of the obligation is the parent who directly raises the child." Where grandparents or maternal grandparents advocate visiting grandchildren or maternal grandchildren, they are generally not supported. However, grandparents or maternal grandparents have fulfilled their obligation to raise minor grandchildren and grandchildren, and their advocacy of visiting grandchildren or grandchildren may be supported. ”
02: Grandparents and maternal grandparents live together with grandchildren and grandchildren for a long time
In the (2016) Yu 0112 Min Chu No. 5648 Judgment, the Chongqing Yubei District People's Court held that civil activities should respect social morality, the right to visit is an extension of the right of parents, and grandparents and grandchildren have a special status based on special blood feelings, and are not extinguished by the divorce of both parents, so the parental rights of grandparents should also be protected. In this case, Ding was born to live in Germany, and has been living with his grandparents for more than 9 years, and is raised by his grandparents, and a deep relationship has been established between his grandparents and Ding. The correct exercise of the right of intergenerational visitation by grandparents is essentially in line with both the ethical value orientation of the right of visitation and the good customs of society. The claims of grandparents to exercise their right to visit are therefore supported. [1]
03: Protection of the rights and interests of the elderly
In the (2018) Yu 0103 Min Chu No. 11722 Judgment, the Chongqing Yuzhong District People's Court held that the Law of the People's Republic of China on the Protection of the Rights and Interests of the Elderly stipulates that family members should care about the spiritual needs of the elderly and must not neglect or snub the elderly. Visiting grandchildren is one of the important ways for the elderly who have lost their independence to obtain spiritual comfort, and it is the rights and interests that the elderly should enjoy. Allowing grandparents and maternal grandparents to visit their grandchildren and grandchildren is in line with the principle of consistency of rights and obligations under civil law. [2]
04: Special protection for the elderly who have lost their independence
In the (2015) Ximin Zhong Zi No. 01904 Judgment, the Wuxi Intermediate People's Court held that in the event of the death or incapacity of the subject of the visit, whether grandparents or maternal grandparents can visit their grandchildren or grandchildren on behalf of their children is not clearly stipulated, but it should be comprehensively measured and appropriately arranged in the spirit prescribed by law and the cultural traditions of the Chinese nation.
Visiting grandchildren or grandchildren in place of deceased or incapacitated children is both a right of grandparents and maternal grandparents and an obligation to protect the rights of minors. Visiting grandchildren is one of the important ways for the elderly who have lost their independence to obtain spiritual comfort, which should be regarded as the rights and interests of the elderly, and can correspond to the legal principle of the grandchildren enjoying the right of subrogation. Allowing the elderly who have lost their independence to visit and live in harmony to perform guardianship duties is consistent with public order and good customs and social morality, and is also the inheritance and development of the traditional virtues of the Chinese nation. [3]
Conclusion
Parental rights are not only legitimate in natural law, but also an important part of traditional Chinese culture. The three generations in the same house and the fourth generation have always been the greatest embodiment of family happiness, and the affection between grandparents, maternal grandparents and grandchildren and grandchildren will not be dissipated because the law does not stipulate the corresponding rights and obligations, nor will it be lost because the parents divorce. Therefore, when certain conditions are met, the claim of grandparents and maternal grandparents for the right of intergenerational visitation to grandchildren and grandchildren should be legally justified and supported.
Fang Xu, a lawyer at Beijing Jiali Law Firm
Educational background
In 2020, he graduated from the Experimental Class of Outstanding Rule of Law Talents of Southwest University of Political Science and Law with a bachelor's degree in law. During his time at the university, he won provincial and university-level awards and titles such as "Professional Outstanding Intern", participated in the national key research and development projects of the Supreme People's Court, and published a monograph at the International Symposium on "Digital Economy Construction and Its Rule of Law Guarantee". During the court internship, he followed the judges in field law enforcement and participated in the drafting of legal documents, helping many parties to obtain state compensation.
Practice experience
After graduation, he worked in a law firm in Beijing, accumulating rich practical experience in practice and cultivating good professional quality. After multi-directional practice and learning, he finally chose to focus on marriage and family business and became a lawyer with temperature and feelings.
[1] See (2016) Yu 0112 Min Chu No. 5648 Civil Judgment.
[2] See (2018) Yu 0103 Min Chu No. 11722 Civil Judgment.
[3] See (2015) Xi Min Zhong Zi No. 01904 Civil Judgment.