CHINA Law and Practice Contributed by: Hongyu Liu, Shuaifeng Wang, Dongda Wei and Chen Rong, King & Capital Law Firm
ordering the other party to perform the agreement. The court will review the legality of the agreement. If it is found valid, the court will issue a judgment, upon which enforcement can then be sought. This adds an extra litigation step, making the process more time-consuming. • Agreement with judicial confirmation (eg, a civil mediation statement issued by the court):This is the key to ensuring the agreement’s enforceability. When parties reach a settlement during court- annexed mediation or litigation, and the court, after legal review, issues a civil mediation statement, this document holds the same legal effect as a final and effective judgment. If one party refuses to perform, the other party can directly apply to the competent court for enforcement, without needing to initiate a separate lawsuit. This represents the greatest advantage of the seamless connection between the ADR mechanism and the judicial process, as it reflects the parties’ autonomy of will and endows the outcome with the guarantee of state enforce ‑ ment power. The court of the defendant’s domicile or the child’s domicile (Civil Procedure Law Article 21) is the juris ‑ dictional ground. Factors considered include the child’s best interests, convenience and the connec ‑ tion of the case to the location. Domicile ( Hukou location) and habitual residence are the primary bases. Nationality serves as an auxiliary connecting factor. 3.2 Living/Contact Arrangements and Child Maintenance When parents cannot agree on their child’s residence and visitation, either party can file a lawsuit with the court, requesting a judgment on custody and the man ‑ ner of exercising visitation rights. When handling such disputes, the court’s core principle is to maximise the protection of the minor child’s best interests, resolving the matter through prioritised mediation and flexible judgments. 3. Child Law 3.1 Choice of Jurisdiction in Children Proceedings
Courts place great emphasis on mediation in fam ‑ ily cases. For example, a court in Fujian, when han ‑ dling a visitation rights dispute, did not immediately issue an injunction but organised mediation between the parties within 48 hours, ultimately facilitating an agreement on visitation and successfully resolving the conflict. A case from a court in Shandong also showed that a local People’s Mediation Committee, through patient explanation of the law and reasoning, prompted divorced parents to reach an agreement on visitation arrangements. If mediation fails, the court will rule according to the law. The judgment comprehensively considers various factors, including the following. • The child’s wishes: For children aged eight and above, the court respects their genuine wishes. • Parents’ upbringing conditions and capabilities: The court assesses both parents’ economic status, living environment, moral character, etc, to deter ‑ mine what is conducive to the child’s growth. • Convenience for life and study: For instance, in a case where the parents lived in Guangzhou and Liaoning, the court considered that the 3,000-kilo ‑ meter distance made the original judgment of twice-monthly visitation impractical. To ensure the maintenance of the mother-child bond, the court changed the visitation method to the child living with the mother for several days during winter and summer vacations. • Innovative visitation methods: To address practical issues like long distances, courts also innovate vis ‑ itation methods. For example, in a case in Qinghai, the court supported the mother’s right to weekly video visits via WeChat in addition to in-person visits, establishing the legality of “online visitation”. The dissolution of the marriage does not affect the parents’ custody rights and their legal duty to raise, educate and protect their children. The core of the legal approach is to determine which parent the child will primarily reside with (direct custody), and how the non-custodial parent exercises their rights and fulfils their obligations.
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