Contents
 
 
      Part ⅠWhat are the evidence most favorable for the obtaining of child custody?
In divorce cases we dealt with, 60% of them are concerned with disputes for the child-care right, which focus on two different aspects: First, with true love to children, the party wants to live with his/her own children. Second, to obtain the premises or more common property, the party forces the opposite party to compromise by taking advantage of children.
      What types of evidence are the most favorable for the obtaining of the child-care right? In our opinions, the following aspects should be taken into account:
      (1) Collecting evidence concerning basic information of both parties.
In divorce cases we dealt with, white-collars or above account for the majority. Therefore, the basic information of both parties, such as earnings, educational background, has relatively small difference. So moral quality leads to be main standards for assessment in obtaining the child-care right. Because the moral quality of the party, who takes direct responsibility of child custody, has a sharp influence on healthy growing-up of next generation. So, it is important to collect evidence in this aspect.
      (2) Collecting evidence concerning basic conditions of both parties.
With rapid paces of life in Shanghai, children are often fostered by one party’s parents other than the couple themselves, especially to children before school age. Therefore, children’s growing-up environment, parents’ suggestions staying with children for quite a long time and their healthy status are often important factors for the court in make judgment on child-care right.
      (3) Collecting evidence concerning children’s growing-up environment.
The principle of adjudicating the child-care right in divorce cases is that there is no influence on children’s healthy growing-up. If both parties get divorced, one party lives in a relatively mature neighborhood near to the school, which is most favorable to children’s education and life, he/she is more likely to obtain the child-care right. Hence, it is essential to collect evidence in this aspect.
      (4) Children’s opinions are quite important.
      Generally, the court shall hear opinions from children over ten full year of life and keep records into files concerning child custody. Before divorce or in the process of divorce, it is especially important to have a heart-to-heart talk with children, making them willing to live with you. Children above ten full year of life are more mature compared with those in our generation, and they have a general picture of concept and outcome of divorce, though the harm to them is unavoidable. Anyway, it is a kind of remedy to children if they can be fostered by party most favorable to their healthy growing-up.
      Part Ⅱ What are the conditions that the wife is favorable for the obtaining of child custody?
      Pursuant to Article 36 and Article 37 of Marriage Law of the P.R.C, as for child custody after divorce, the general principle is that it shall be favorable to child’s healthy physical and mental development of based on their legal rights and interests. Parents’ economic capacity and living conditions concerning child custody and so on shall be taken into account. Detailed Provisions of the Supreme People’s Court on Some Issues concerning Child-care in Divorce Cases by the People’s Court was issued in November.3.1993, which gives a detailed description of courts’ judicial principles in conducting child-care issues in divorce cases and has some meanings for guidance in practice.
      From the angle of the female party, what kinds of conditions are favorable for her to obtain the child-care right?
      ①Child within two full years of life shall live with mother. Child in babyhood needs mother’s nursing, as mother can give more consideration and care to child.
      ②Child over two full years of life is favorable to be raised by mother, if the female party has done the sterilization operation, while the male party hasn’t and both parties have little gap in age.
      ③Child living with mother all the time is favorable to be raised by mother, thus living with father will have more impacts on their living habits and development.
      ④Under the prerequisite that both parties’ child custody conditions, such as working stability and salary, are similar, if the male party bears faults for breakdown of marriage, for example, there is evidence for his extramarital affairs, it is favorable for the female party to obtain the child-care right.
      ⑤If the male party has unhealthy habits, such as gambling, drinking, etc, which do some harms to child’s healthy development, it is favorable for the female party to obtain the child-care right,
       ⑥Both parties have no distinct faults and they have similar living conditions, if the female party has better moral quality and more time in looking after child, it is favorable for her to obtain the child-care right.
      ⑦Child over ten full years of life can make decision to live with mother on their own will.
       Part Ⅲ What are the conditions that the husband is favorable for the obtaining of child custody?
      Although we are advocating the equality of men and women, in family life, the male party is relatively passive in obtaining the child-care right, for the male party is generally thought to be the strong. Under equal conditions, it is more likely for the female party to obtain the child-care right. However, in the following situations, it is absolutely possible for the male party to strive for the child-care right.
      ①The female party suffers from malignant contagious diseases or other serious diseases, which will impact child’s development.
      ②The female party always lives outside or doesn’t bear responsibility of child custody.
      ③The male party has done sterilization operation or has lost capability of reproduction.
      ④The male party is too old to give another birth, while the female party is in a better child-bearing period.
      ⑤The female party has bad habits or other behaviors of immorality, which will impact child’s development.
      ⑥The female party has low income and an unstable job. No long-term dwelling.
Generally speaking, parents are direct persons for child custody of the next generation, therefore, grandparents’ opinions have no direct influence on the child-care right, unless both parties are too busy with their work and grandparents have to take main responsibility of child custody.
       Part Ⅳ Is child-care expense fixed at the rate of 20% - 30% of one party’s month income?
      Pursuant to opinions from the Supreme People’s Court, to the party having stable income, child-care expenses shall be paid at the rate of 20% to 30 % of the total monthly wages. The rate of costs of bringing up more than two children can appropriately increase, but generally, not exceeding 50% of the total monthly wages.
      To the party not having stable income, the child-care expenses can be fixed based on his/her gross income every year or the average income in the same trade, with reference to above-mentioned rates.
      In fact, it is not absolutely right that rate of he child-care expense is 20% to 30% of monthly wages, but child’s actual demands and local living standards are also important elements for reference. For instance, in the downtown of Shanghai, to an average family child, 1000 Yuan or so is basically enough. However, if the party earns more than 20,000 Yuan, as calculated by 20% to 30% of monthly wages, he/she has to pay 4000 to 6000 Yuan for the child-care expense, which is not necessary. Both parties should bear responsibility of the child-care expense together. Hence, it is not quite proper to calculate payment in proportion to income without any change.
      In practice, it is not an easy job to objectively learn about the other party’s actual level of earnings. In standard units, such as state-owned ventures or transnational foreign-funded enterprises, the financial department will not issue false certificate of the staff’s salary information on purpose. But quite a number of units with a relatively standard financial system seem to pay little per month from the payroll or simply issue a pay sheet to make do with the court. Therefore, as for evidence for the other party’s earnings, it is better to collect payrolls of the last full year or successive half years. To off-payroll income, if there is no effective evidence for the other party’s high salary, the court shall generally make judgment upon child-care expense based on the income certificate from the unit, such as payrolls.
       Part Ⅴ Is the party obtaining the child-care right able to ask the other party to pay the child-care expense at one time?
      Child-care expenses are generally paid per month. For instance, before the certain day per month, the party shall pay legal costs of aliment when visiting his/her child or transmit the costs to the specific account for child. In practice, many parties involved request the other party to conduct a lump-sum payment of legal costs of aliment, which can not only save troubles to demand payment, but can rebate the housing depreciation payment as well. However, from the angle of the court, the method of a lump-sum payment depends on the other party’s actual economic capacity and personal attitude. Generally speaking, if the opposite party doesn’t accept this method, it is not very likely for the court to make such judgment.
       Part Ⅵ Is the child’s education fee and medical payment included in the child-care expense?
      Quite a lot of people hold the idea that costs of child custody cover living expenses for child, excluding educational and medical expenses. This kind of idea is not proper at all. Pursuant to The Supreme People’s Court’s Interpretations concerning the Application of Marriage Law, child-care expenses specifically refer to three items, i.e.: living expenses, educational expenses and medical expenses. Hence, if educational expenses and medical expenses are not listed as individual items concerning child-care expenses in divorce agreement, generally the court infers that they are included. However, if child needs a great amount of educational or medical expenses after divorce, legal action can be taken to request other compensation from the other party.
       Part Ⅶ What is the understanding of the visitation right of the party not obtaining the child-care right?
      Generally, the court shall make judgment that the other party has the right to pay a visit for his/her child at certain day of single or even week per month or one or two days visits. If the other party’s visitations obviously have influence on child’s healthy development or child under 10 full years of life is unwilling to be visited, the party obtaining the child-care right can present a plea, requesting the court temporarily end the other party’s visitation right. Otherwise, no one can deprive the other party of his/her visitation right.
       Part Ⅷ Under what conditions can one party ask the court to change the obtaining of the child custody?
      (1) The party living with child is suffering from serious disease or disabled without capability to bring up child.
      (2) The party living with child doesn’t bear obligations of child custody or maltreats child or the party exerts bad influence on healthy physical and mental development of child.
      (3) Child above 10 full years of life can decide the party to live with, if the party concerned has capability of child custody.
As long as in accordance with any of the conditions above, one party has the right to apply the court to change the obtaining of the child custody.
       Part Ⅸ In what cases are the party obtaining the child custody able to ask for higher child-care expense?
      (1) The original amount of costs of aliment can’t satisfy the local actual living standard.
      (2) Child needs more money for medical and educational expenses.
      (3) Other reasonable reasons for increasing of child-care expense child custody. For instance, the original amount of costs of aliment can’t keep up with the current prices, which was calculated by standards several or more than ten years ago.
So long as pursuant to any of the conditions above, the party obtaining the child custody is able to ask for higher child-care expense.
       Part Ⅹ Do parents have duties to pay the child’s fees for higher education?
In addition, please note that in accordance with The Supreme People’s Court’s Interpretations concerning the Application of Marriage Law, parents shall terminate the obligation of child custody when child comes to 18 full years of life. Generally speaking, parents have no statutory obligations of child custody, if child is above 18 full years of life, including costs of aliment during college life. Pursuant to the Supreme People’s Court’s Interpretations, it specifically puts that child above 18 full years of life still in want of parents’ costs of aliment refers to situations listed as follows:
      First, child is taking senior high school or below education.
      Second, child can’t maintain normal living standards due to objective reasons.
      Apart from the said situations, parents have no obligations to support child above 18.
       Part Ⅺ Is it possible for the party obtaining child custody to ask for higher child-care expense if the other party’s income has been raised a lot?
      In case after divorce, the party obtaining the child-care right remains the original level of earnings, while the opposite party’s earnings are substantially increasing. For example, he/she can buy cars and real estates or won a huge windfall. Under such circumstance, the party obtaining the child-care right may request for increase of child-care expense. However, if child has no actual need in life, the court generally shall not support this request.
       Part Ⅻ Does the party obtaining the child custody have the right to change the child’s family name after divorce?
      Generally speaking, laws and regulations concerning children’s family names are included in the following documents:
      (1) Article 22 of the Marriage Law of the P.R.C: A child may take the surname of either the father or mother.
      (2) Pursuant to judicial interpretation of the Supreme People’s Court, parents should not refuse to pay costs of child custody in case the change of surname of child. In case father or mother changes the original surname of child to that of stepfather or stepmother at his/her discretion, the original surname of child should be restored instantly if any disputes caused concerning this.
      (3) The reply of the Supreme Court to the change of child’s surname concerning the case of Chen Senfang and Fu Jiashun in 1981 states that it was improper for Fu to change their son’s surname without the permission of Chen after their divorce. However, Chen refused to pay the child-care expense for this reason is illegal and Fu shall ask for the court’s execution Now that Chen didn't agree on the change of the child’s name, the court may persuade Fu to restitute their son’s surname. (4) According to the reply of Public Securities Department concerning the change of child’s surname after divorce, the public securities agencies can object the application of changing the child’s surname without the permission of both parties. Also, the public securities may order the party to restitute the child’s surname if it was changed by fraud as well as without both parties’ permission.
      In conclusion, at present, the relevant regulations on the change of surname of child at his/her own discretion haven’t reached maturity. In other words, in case one party (usually the female party) changes the original surname of child into his/her own at discretion after divorce, the court shall not accept the lawsuit or it is quite difficult to protect such right in line with current laws.