Brief Introduction of visitation Rights
Brief Introduction of visitation Rights
author/ LiDan
Family Law Team of Guantao Lawfirm,
Shanghai,China
Chinese Marriage Law has made it clear that as the relationship between parents and children shall not come to an end with the parents' divorce. After divorce, whether the children are directly raised by the father or the mother, they shall remain the children of both parents.
Therefore, for the party who fails to get the child raising right, he/she has a statutory right to visit the child from time to time. The visitation right cover the following issues:
(1) the child is directly raised by one party after divorce,
(2) the party who is qualified to exercise the visitation right is the one who will not live with the child after divorce,
(3) the exercise of visitation right will not be detrimental to the child’s physical and mental health.
(4) the exercise of visitation right needs the cooperation from the other party who gets the child raising right after divorce.
The manner and time for exercising the right to visit a child shall be decided by the parties through consultation; if they fail to reach an agreement upon in this regard, a separate lawsuit may be initiated and the judge will issue a judgment in this regard.
More often than not, the court will grant the party entitled to visitation right to exercise his/her visitation right once for every two weeks, and the time for such visit may be one day or one day, two nights. Sometimes, the judge will make quite clear the day, the place and the time when the party can pick up the child and how long the party can stay with the child for the visit to save the trouble in the future.
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However, even if with the judgment, the cooperation from the other side to help exercise the visitation right is not always guaranteed.
There do exist remedies if the other party fails to cooperate, even though how the remedies work remain a big problem. Article 48 under Marriage Law provides that where a person refuses to abide by the judgment or ruling on the costs of maintenance, upbringing or support payments, or on the partitioning or inheritance of property, or visit to a child, the People's Court shall enforce the execution of the judgment or ruling in accordance with law. The individuals and unit concerned shall have the duty to assist such execution.
In Interpretations of the Supreme People's Court on Several Issues about the Application of Marriage Law of the People's Republic of China (first part), article 32 further states that What Article 48 of the Marriage Law provides that the execution may be enforced by the people's court in accordance with the law in case any person refuses to execute the judgment or decision on the visit of children refers to the taking of mandatory measures such as detaining and fining the relevant individuals and entities that refuse to help the other party to exercise the right of visit, and does not refer to the enforcement against the body of the children or act of visit.
So there only exist indirect remedies to enforce the cooperation from the other side. When the other side takes the child away without no trace to be found, the remedies under Chinese laws will not function at all.
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The visitation right does not remain unchanged forever and when the visit to a child by the father or the mother does harm to the physical and mental health of the child, the People's Court shall suspend the right to visit; after the cause of such suspension disappears, the right to pay visit to the child shall be resumed.
In judicial practices, the common causes for suspensions are (1) the visitation party is a person having no capacity for civil conduct or with limited capacity for civil conduct; (2) the visitation party has serious epidemic disease or other serious disease which may endanger the child’s health; (3) the visitation party commits tort or criminal act to the child when he/she exercises the visitation rights which causes damage to the child’s interest; (4) the relation between the visitation party and the child deteriorates seriously and the child firmly refuses to the visit; (5) other situations that may does harm to the child’s physical and mental health.
Even the suspension of the visitation right is temporary, the party will not regain the visitation right unless he/she applies to and satisfies the court that the situation for suspension no longer exists.