1. Basic information of the case:
Xiong Da and Xiong Da gave birth to their only son, Xiong Da and Cuihua, who registered their marriage on March 2, 2014, and gave birth to a son, Xiong Xiaobao, on December 20, 2015.
Xiong Da and Cuihua live in Community A in Da Forest City, and Daddy Xiong and Xiong Lao Ma live in Tuanjietun Group B. After Xiong Xiaobao was born, Xiong's father and Xiong's mother went to community A to help Cuihua take care of Xiong Xiaobao, and occasionally went back to his hometown to see.
On March 1, 2020, Xiong Da passed away due to an accident, Xiong Xiaobao was raised by Cuihua, and every holiday, Xiong Xiaobao was taken to live with his grandparents Daddy Xiong and Daddy Xiong for a few days. Later, Daddy Bear, Daddy Bear and Cuihua quarreled. After that, Cuihua did not let the second elder visit Xiong Xiaobao.
Father Xiong and Mother Xiong think that Xiong Xiaobao has been brought up by the two of them since he was a child, and Xiong Da's death has hit the two of them very hard, Xiong Xiaobao is the spiritual sustenance of the two, and now Cuihua does not let the two of them visit Xiong Xiaobao, which hurts them even more. Therefore, the lawsuit was brought to the court, requesting that Xiong Xiaobao be arranged to let the two visit during the winter and summer vacations and statutory holidays every year.
Cuihua argued that the relevant laws showed that the grandparents did not have visitation rights in law.
2. Focus of this case:
1. Do Daddy Xiong and Daddy Xiong have the right to visit Xiong Xiaobao?
2. If so, in what way is it appropriate to visit?
3. Lawyer's statement:
First, the first paragraph of Article 1086 of the Civil Code of the People's Republic of China stipulates that "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." Although this provision does not give close relatives other than parents the right to exercise visitation, it does not prohibit it in a negative way.
Second, intergenerational visits to minors are conducive to maintaining parent-child relationships, but also do not affect the normal lives of minors. In this case, Xiong Xiaobao is still young, his father passed away, and he was raised by his mother Cuihua alone, and the visit of his grandparents can make him feel the warmth of family affection.
Third, in this case, Xiong's father and Xiong's mother have raised Xiong Xiaobao from childhood to adulthood, and the grandparents and grandchildren have formed a stable life and emotional interdependence in their long-term common life. Especially after the death of the only son Xiong Da, the emotions and sustenance of the two are only on Xiong Xiaobao. After Xiong Xiaobao lost his father, he was able to be loved by his grandparents, which is also conducive to Xiong Xiaobao's healthy growth.
Fourth, the court finally found that, according to the actual circumstances of the case, the grandparents' exercise of the right of visitation was conducive to Xiong Xiaobao's growth, and the court of first instance ruled to support the plaintiff Xiong's father and Xiong's mother's claims, but the scope of the visit was only in the area where Xiong Xiaobao currently lived, and the defendant Cuihua cooperated with the visitation.
4. Lawyer's Advice:
First, Article 3 of the Minutes of the Eighth National Conference on the Trial of Civil and Commercial Cases by Courts stipulates that grandparents who have fulfilled their obligation to support their minor grandchildren whose parents have died or whose parents are unable to support them shall have their right to visit their grandchildren on a regular basis and shall have the right to obtain judicial protection through litigation.
Second, the theoretical basis of the right of intergenerational visitation lies in the principle of maximizing the interests of minors and respecting the ethics of family affection, that is, from the perspective of protecting the interests of minors, the visit of grandparents and maternal grandparents to minors is conducive to the maintenance of family affection, to meet the emotional needs of grandparents and grandchildren, and minors can also feel the care brought by the next generation, which is conducive to the growth of minors.
Third, the first factor to be considered for the right of intergenerational visitation is whether the grandparents have fulfilled their obligation to support their grandchildren, such as the two people in this case who have been emotionally dependent on each other from the birth of their grandchildren to the time they attend kindergarten; Secondly, it is necessary to consider the situation of not directly raising the minor's father or mother, such as in this case, Xiong Da died in an accident, and the second elder lost his only son, and all the emotional sustenance was on his grandson Xiong Xiaobao; Thirdly, the exercise of the right of intergenerational visitation must not affect the minor's daily life, such as being detrimental to his or her physical and mental health; Finally, if the minor is over the age of eight, the wishes of the reference minor should be respected, because the age of eight or older has a certain understanding of the surroundings and can feel who is good and bad for them.
Disclaimer: This article only represents the author's point of view, and is not regarded as a formal legal opinion or suggestion issued by the author's institution or its institution, and has no legal effect, and is only for the reference of relevant organizations and individuals. For ** or citations, please cite the source. (*All on the Internet).