The points discussed in this article belong to the more concentrated points in child custody, and of course, the corresponding legal provisions are relatively clear, namely:
Article 56 of the Supreme People's Court's Interpretation (1) on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of China: In any of the following circumstances, where one of the parents requests to change the child-support relationship, the people's court shall support it: (1) The parent living with the child is unable to continue to raise the child due to serious illness or disability; (2) The party living with the child does not fulfill the obligation to support the child or abuses the child, or the party living with the child has a negative impact on the child's physical and mental health; (3) A child who has reached the age of 8 and is willing to live with another party who has the ability to support them; (4) There are other legitimate reasons for the change. In fact, we can clearly see that this is the core embodiment of the principle of the best interests of children. However, is the understanding and application of this article really so simple and clear in judicial practice? We don't think so, and the main points that need to be discussed are compiled here for everyone to learn and exchange.
1. Who can be a plaintiff?
Conclusion: One of the child's parents.
According to article 56 mentioned above, "one parent", on this basis, we believe or prefer that only the parent can be the plaintiff. Of course, there are three different points of view, and we will share them with you here. The second view is that both adult parents and children can be plaintiffs, and the third view is that only children can be plaintiffs. According to the opinion of the First Civil Trial Division of the Supreme People's Court, it is also believed that parents are preferred as plaintiffs. The reasons mentioned are as follows: secondly, the fact that the parents are plaintiffs can simplify and facilitate litigation. Finally, it is generally through a divorce agreement or a divorce judgment. In both cases, the children did not participate, so it was not necessary to have the children as plaintiffs when changing the direct custody of the children.
The First Division of the Civil Trial of the Supreme People's Court also mentioned that if one of the parents is a minor, although it can be the plaintiff, the legal person, that is, the grandparents and maternal grandparents of the minor children, should file the lawsuit on their behalf.
2. Does this article apply to adult children who are unable to live independently?
Conclusion: The same applies.
1. According to Article 1067 of the Civil Code, if the parents fail to fulfill the obligation to support them, the minor children or adult children who cannot live independently have the right to request the parents to pay child support.
2. Article 56 mentioned above is not expressly limited to minor children.
III. Understanding and judicial practice of circumstances that may be changed by law.
1) The parent living with the child is unable to continue to raise the child due to serious illness or disability.
This is objectively passive and cannot continue to be raised, which is easier to understand, so I will not repeat it here.
(2) The party living with the child does not fulfill the obligation to support the child or abuses the child, or the party living with the child has a negative impact on the child's physical and mental health; (often accompanied by a consultation of the child's wishes).
1. This article focuses on "having an adverse impact on the physical and mental health of the child", and here we again quote the opinion of the First Civil Trial Division of the Supreme People's Court, "there is indeed an adverse impact on the physical and mental health of the child", and from the perspective of judicial practice, the major changes in the economic income, housing conditions, place of residence, work style, work place, etc., as well as the existence of bad habits, etc., can be regarded as facts that "have an adverse impact on the physical and mental health of the child".
2. Judicial case sharing:
1) Civil judgment of first instance in the dispute between Chen and Lian in the dispute over the change of custody relationship Xinjiang Production and Construction Corps Beitunken District People's Court (2023) Bing 1001 Min Chu ***.
Core: The defendant assaulted the child and the defendant failed to fully fulfill the obligation to support the child (and the child expressed a willingness to live with the plaintiff), supporting the change.
This court ascertained the facts: after the divorce of the parties, Lian XX3 lived with his father Lian XX1, and in August 2023, the defendant beat the child with wicker, causing Lian XX3 to be injured to varying degrees in his back, face, legs, and head (Note: beating the child). Lian XX3 has been living with the plaintiff, during which the new semester is at the beginning of the new semester, and the plaintiff spent more than 6,000 yuan to pay for the child's daily living expenses, medical insurance premiums, clothes, bicycles, and hospitalization from August 26, 2023 to November 12, 2023 (Note: The defendant failed to fully fulfill its maintenance obligations).
This court held that: in this case, when the plaintiff and the defendant agreed to divorce, it was determined that the legitimate son Lian XX3 would be raised by the defendant Lian XX1 and live with the defendant, and now the plaintiff Chen X requested a change in the child support relationship, which met the circumstances of changing the child support relationship. Based on the evidence provided by the plaintiff, it can be confirmed that the defendant failed to fully fulfill the obligation to support the child and that there was an act of beating the child, and at the same time, considering the wishes of the legitimate son Lian XX3, combined with the specific circumstances of the plaintiff and the defendant's ability to raise and raise the conditions, and from the perspective of benefiting the children's physical and mental health and protecting the legitimate rights and interests of the children, the legitimate son Lian XX3 was raised by the plaintiff, which is more conducive to his healthy growth. Therefore, this court supports the plaintiff's request to change the custody relationship.
2) The civil judgment of the first instance of the dispute over the modification of custody rights to Xiang XX v. Li XX Kaijiang County People's Court (2016) Chuan 1723 Min Chu *** No.
Core: The defendant is still in compulsory drug rehabilitation (and the child has expressed a willingness to live with the plaintiff), supporting the change.
This court ascertained the facts: the plaintiff and the defendant mediated their divorce in the Kaijiang County People's Court in 2009, and the two parties reached an agreement: the legitimate son Li Moujia lived with the defendant Li, and the plaintiff was to pay 500 yuan per month in child support until Li Moujia reached adulthood. In December 2014, he was sent to the Dazhou City Compulsory Isolation Drug Rehabilitation Center for compulsory drug rehabilitation. Now the plaintiff works in a company in Chengdu and earns about 2,900 yuan per month. During the trial of this case, the plaintiff voluntarily waived his claim for the defendant to bear the alimony of his legitimate son, Li Moujia.
This court holds that: in this case, although the plaintiff and the defendant divorced through mediation by this court in 2009 and voluntarily agreed that the legitimate son Li Moumou would live with the defendant Li Moumou and that the plaintiff would pay child support, the defendant was currently in the Dazhou City Compulsory Isolation Drug Rehabilitation Center for compulsory drug rehabilitation and did not have the basic conditions and ability to raise and take care of the child, and at the same time, the legitimate son Li Moujia clearly expressed his willingness to live with the plaintiff, so the plaintiff's request to change the custody of the legitimate son Li Moujia was factually sufficient and had a legal basis, and this court should support it.
3) Civil judgment of first instance of alimony dispute between Wang 1 and Wang 2 Pingdu Municipal People's Court (2017) Lu 0283 Min Chu ***
Core: A history of drug abuse and other vices that cannot be used as a basis for support for change.
This court found the facts: Defendant Wang X 2 applied to this court to go to the Pingdu City Public Security Bureau to obtain records of plaintiff Wang X 1 on drug use and other illegal crimes. This court went to the Pingdu Municipal Public Security Bureau to obtain materials in accordance with the law, and the Pingdu Municipal Public Security Bureau's Gray Port Police Station issued a certificate, "After online inquiry, Wang Mou1 has a record of drug abuse. The fact is that in 2013 or 2014, when he was living in the happy community of Jiamusi City, Heilongjiang Province, his nephew Liu Zhaoguo led the team to learn that he was caught by the police for drug use at home, and he was also taken to the police station by the police, made a record, and stayed at the police station for more than two days, and was finally told that he was guilty of accommodating drug use.
This court believes that the plaintiff cannot be deprived of his right to raise children because he has a record of drug abuse, and the defendant cannot provide evidence to prove that he is still taking drugs, so the defendant's argument is not accepted by this court.
(3) A child who has reached the age of 8 and is willing to live with another party who has the ability to support them;
In practice, the application and determination of this article generally need to be proved:
1. The minor child has reached the age of 8 and is a person with limited civil capacity;
2. The intention of the minor child to live with the non-direct parent is genuine;
3. The party who does not directly support the minor child has the ability to raise the minor child.
4. Is it possible to request a change in the child support relationship during marriage?
Conclusion: Yes, we will elaborate on the specific application and judicial practice issues in the following articles, and here we will share with you the main premise of existence (divorce is not a necessary premise).
1. During the existence of the marital relationship, one of the parents discovers that the legitimate child is not born to him/her;
2. During the existence of the marital relationship, others compete for the direct custody of the children born in marriage.