A Thorny Legal Issue ：Child Raising Right in China

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It is not a crime, but a thorny legal issue in China

About child raising right in China

author/ LiDan

 Family Law Team of Guantao Lawfirm,

 Shanghai,China 

Foreigners who marry Chinese wives always get shocked when their parents in laws with their wife take away their child and stop the foreign husband from visiting or even contacting the child any longer. “Ann, it is a crime in our country. It is abduction.”

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Yes, we still remember clearly a Chinese mother was arrested on an airplane by FBI in USA for taking the child away without notifying the father. But hiding a child during the marriage time even though the couple gets separated is not illegal in China and not a crime at all. No police will get involved even if 110 is called as it is an internal conflict at home. 

But it is really a tough and thorny issue the Chinese courts are facing when they handle divorce cases. A White Paper issued by Shanghai Changning District Court about Trials of Divorce Cases (hereafter referred to as “White Paper” involving minor children between 2011 and 2015 has highlighted such a legal predicament. 

As per the White Paper, it happens a lot that the parties involved in divorce cases with minor children take away the children during their care of the children, or lure the children to leave with them or seize the children at the other parties’ places, putting the children under the control of themselves so as to gain advantage in the child raising fight or to impose mental pressure on the other parties which provokes the other parties to see an eye for eye with the same pattern they have used.

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Why is so important to get the child at side? 

In present Chinese judicial practice,  with whom the minor child is staying when the divorce occurs remains a crucial if not the only factor for the judge to decide whom shall the child raising right be granted especially for the child above two years but under ten years’ old. 

For the children under two years’ age, if there do not exist any extreme situations for the mother side like the mother gets infectious disease, or mother leaves the child with the father’s care, or the mother waives the child raising right and etc., the mother will get the child raising right. 

As per the White Paper, among all the cases the court has handled between 2011 and 2015 involving children under 2 years age, 81.5% of the children stay with the mother after the divorce. 

For the children above 10 years’ old, the child will be asked personally by the judge without either parent’s involvement about their own willingness to stay with whom. 

However, for the children between the age of 2 and 10, the fight for child raising right becomes fierce and the 2.5 fight is not uncommon, which means the father side, in order to get the child raising right, will take away the child above 2 years old, with his own parents’ help so as to create the situation on purpose that the child is under the care of the father side when the divorce starts. Pity is that works.

There are other factors that the court takes into consideration when the child raising right is decided: the grand parents’ involvement in the child raising, economic income of either party, the possibility that either party has another baby later, the nationality of the child and etc.

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Foreigners get confused about Chinese grandparents’ involvement in the child raising which is believed to be the own business of the parents. (The grandparents’ over interference into their children’s family life is becoming a marriage killer especially for those born after 1985 who are officially the first generation of one child policy.)

However, as a full time mother at home is still not a popular idea acceptable to the Chinese families, the grandparents’ help seems necessary and sometimes indispensable when the children are not ready for being a mother and/ or a father. 

More often than not, the fight for the child raising right at court is in fact the fight between the grandparents from either side and to carry on the family line remains the purpose of life for the grandparents’ generation. 

Pathetically, in lots of divorce cases, the young couples give birth to children just to satisfy their parents’ purpose to carry on the family line without any preparation for being a mother or father. Marriages like this unavoidably will come to an end with the fight for the child raising right.

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I have been asked by lots of female clients if the difference in the income between  her and her husband will lesson her chance of getting the child raising right, which is not exactly the case. 

What counts in the child raising right decision is not the absolute number of either party’s income but whether the party has a stable income source which can guarantee the child’s basic needs like the living needs, education needs and the medical needs. To raise a child well needs more than money and the aristocratic education is definitely a basic need. 

However, if one side has no economic independence who still needs the financial support from the parents, his or her chance of having the child raising right will be greatly lessoned. In addition, if a third party’s paid service is necessary like a baby sitter or a nanny, the finance situation of either party may become a reason that the court decides on the child raising right.

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When either side has almost the equal terms in the child raising, the court may check the chance of either side getting married and having another baby. In one of my cases, the wife has serious gynecologic disease whose chance of getting pregnant again is quite slim and the court finally decide the wife shall get the child raising right.

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Lots of foreigner wrongly believe that their foreign nationality will gain them overwhelming advantage over the other side but foreign nationality nowadays means little in the child raising right decision if the minor child is staying with the Chinese ever since he or she was born. 

Foreign nationality only counts when the child with foreign nationality will have a better life in Chinese judge’s opinion if she or he lives with the parent with foreign nationality in a foreign country.

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A party involved in a divorce more often than not accuses the other party of bad character, irresponsible for the family and etc. But there exists no independent third authority who can have an objective evaluation of the character of a person. And the character of a person is not a factor the court will take into consideration even if you may have your opinion recorded, after all, a bad person may be a loving father and a nice person may be irresponsible.

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Article 46 under Chinese Marriage provides that a party with no fault is entitled to claim damage compensation if there exists one of the following situations which leads to a divorce: (1) Bigamy, (2) A married person living with the other party (3) domestic violence (4) maltreating, abandoning the family member(s). 

One thing for sure is that once situation 3 or situation 4 is proved to exist, most probably the party with no fault will get the child raising right for the child needs to be guaranteed to live a secure life. However, for the first and second situations, it remains unknown how such fault(s) will affect the child raising right.

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In a nutshell, with the reform of the family dispute trial, more and more attention is paid to the child raising right and the courts are changing also in their decision on child raising right. 

In Changning District Court in Shanghai, social workers pay visit to the children in divorce cases to evaluate who is in better situation in raising the child. 

The second child birth rush makes the child raising right more complicated. As per the White Paper, the tradition pattern that the domestic wife and social husband remains and wives spend more time at home and with their children, thus the minor children under age of 10 are more dependent on their mother than their father. 

In judicial practice, the female party will get the child raising right in a majority of divorce cases with minor children of different ages involved. Nowadays, more and more attention is paid to the real interest and right of the child. But the whole society needs to change the value about marriage, about child raising and about divorce before the child’s interest can be well protected in a real sense. 

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观韬中茂（上海）律师事务所

Guantao Lawfirm

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Shanghai, China

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