CHINA Law and Practice Contributed by: Hongyu Liu, Shuaifeng Wang, Dongda Wei and Chen Rong, King & Capital Law Firm
Custody and Parental Responsibility Remain Unchanged According to the Civil Code, the relationship between parents and children is not eliminated by divorce. After divorce, regardless of which parent the child primarily lives with, the child remains the child of both parents, and both parents retain the duty to raise, educate and protect the child. This means that custody itself does not change due to divorce; what changes is which parent the child lives with (determination of the pri ‑ mary custodial parent). In terms of the division of responsibilities, the follow ‑ ing applies. • Primary custodial parent: Responsible for the child’s daily life, study and education. • Non-custodial parent: Not only has the right to visit the child, which the other parent must facilitate, but also must bear the corresponding child main ‑ tenance payments, which is a key way of fulfill ‑ ing their support duty. For example, cases show that even if one parent assumed full maintenance responsibility in the divorce agreement, the child may still have the right to request reasonable sup ‑ port from the other parent if necessary. Court Orders Court orders are not arbitrary and must adhere to clear limitations, with the child’s best interests remaining paramount. • Must not harm the child’s physical or mental health: This is the most fundamental limitation. If a parent’s visitation is detrimental to the child’s physical or mental health (eg, due to domestic vio ‑ lence or drug abuse), the court may suspend that parent’s visitation rights. Visitation rights should be restored once the reasons for suspension cease. • Respect the child’s wishes: For children aged eight and above, the court will listen to and respect their wishes when making relevant judgments. For instance, when ruling on changes to custody arrangements or visitation involving extended holiday stays, if the child has sufficient cognitive ability, the court may specifically note the need to obtain the child’s consent.
• Consider practical implementation conditions: Court orders must be operable. For example, in a cross-province visitation case, the court adjusted the visitation method based on changed circum ‑ stances to avoid an unenforceable judgment. Child Maintenance Child maintenance refers to the expenses paid by par ‑ ents to fulfil their duty of support for minor children or adult children who cannot live independently. Its purpose is to cover the child’s basic needs, includ ‑ ing living expenses, education, healthcare, etc. The legal basis is Article 1067 of the Civil Code, which states that if parents fail to perform their duty of sup ‑ port, minor children or adult children who cannot live independently have the right to demand maintenance payments from their parents. Maintenance includes living expenses, education costs and medical expenses. It is important to note that routine education and medical expenses are gen ‑ erally considered included in the maintenance pay ‑ ment. However, significant medical expenses arising from sudden serious illness, or additional education costs such as attending high-tuition schools, are typi ‑ cally deemed beyond the normal scope of mainte ‑ nance and can be claimed separately based on actual need and the parents’ ability to pay. The amount of maintenance is first determined by agreement between the parents. If no agreement is reached, the People’s Court will make a judgment. The court’s decision is primarily based on three fac ‑ tors: the child’s actual needs, both parents’ financial capabilities and the local standard of living. Parents can autonomously agree on child mainte ‑ nance arrangements through a written agreement. Once reached, such an agreement is binding on both parties. • Validity and content of the agreement: At the time of divorce, parents can reach a written agreement on which parent will have primary custody, how visitation rights will be exercised, the amount of maintenance and payment methods. This agree ‑ ment, reflecting the genuine intent of both parties,
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