Child Custody and Visitation under Chinese Laws

International or cross-border marriages in China and with Chinese have been on steady rise in the past, and thus international or cross-border divorces have seen increase as well in China. We have been repeatedly approached by clients who wish to divorce in China with his or her spouse that is also a foreigner.

With regard to divorce (without regard to child custody), you can refer to other posts on this blog:

Can I Divorce in a China Court?

Easy married, hard divorced in China 

Deal with the property in China after you get divorced in your home country

One of the fierce battles in a divorce war is the fight for child custody and the child visitation for the party that does not win the custody for their child or children. Now if you are caught in a divorce war in a China court, you need to know the rules related to awarding child custody under Chinese laws.

I. Child Custody

(1) Concept of Custody

Here it is kind of messy regarding children custody under Chinese laws. First of all, China Marriage Law doesn’t mention the word “custody” in any of its 51 articles. Instead, it uses the term “maintenance” or “support”, and when the court orders that the child lives with one spouse, it refers to that as awarding direct maintenance to that parent. In effect, it is largely correct to replace the word “maintenance” or “support” with “custody”.

Custody as a basic and fundamental institution in civil laws is now more clearly provided in China General Provisions of Civil Code (taking effect from October 1, 2017).

Parents are the statutory custodians for their minor children. Even upon divorce, both parents are still considered as custodians for the child even though the physical custody is awarded to one parent. This is indeed an old provision in the precedent version of China General Provisions of Civil Code, that has causing a lot of confusion in practice, as it doesn’t distinguish physical custody and legal custody toward the child. Sadly, the new General Provisions does not touch on child custody of divorced parents neither.

But now, China General Provisions of Civil Code allows qualified custodians to agree on the actual custody over a child, a new provision which in my opinion enables the divorced the parents to agree on specific matters of child custody by one spouse while not deprives the right to custody of the other.

In the meantime, ironically, while joint custody of child is the norm for divorced parents as mentioned above, it shall be noted that generally the parent having physical custody is the one that shall assume tort liability if the child has committed tortious conducts against others. In other words, joint custody does not result in joint liability, illogical and unfair. We have noted cases where the other parent who doesn’t have physical custody of the child is called to pay damages to others if the first-mentioned parent is not able to pay those damages alone.

(2) How to Obtain Custody in A Divorce

The general principle for courts to award custody to divorcing parents is to see who will be give the best benefits and best serve the child, taking into account various factors of family conditions. For example, the court will consider the availability of grandparents who are able to assist in the daily care of the child.

In judicial practice, courts tend not to break the status quo of the child’s life. For example, if the child has been living with one parent or grandparents for long, the court will be more likely to keep the current situation unless the other parent has much better conditions to offer, not just financially but also emotionally.

So for divorce cases involving fight for child custody, it is advisable for the parent to cultivate a favorable status quo for the child’s life before filing the divorce case.

II. Child Visitation

If one parent loses the fight for child custody in China court, he or she may wish to protect his or her visitation right to see the child regularly.

It is always a difficult situation to deal with child visitation when the parents are from two different countries, much depending on the post-divorce chemistry of the parents.

With regard to divorce with Chinese wife, if the child custody is granted to the wife, it is more likely that the ex-husband will have a tough time to visit the child as very often the Chinese wife is more difficult to deal with after divorce. To make things worse, China courts very often cannot help much after the divorce with regard to child visitation as they tend not to enforce such personal rights.

Jason Tian

Jason Tian, senior partner, specializes in foreign-related legal services ranging from foreign investment in China, banking and capital, real estate, M&A, corporate, international trade, estate planning, inheritance and divorce at his blog: https://www.sinoblawg.com.

18 Comments

  1. Jon H   •  

    Hello I am an American and my wife is chinese. We have two children( 2 year old daughter and 5 month old son). We have a babysitter that takes care of my son 24/7 since he was born. My wife is 24 years old never had a real job. She wants to take both of the children and divorce. I want to take my son while she takes my daughter. First question is will I be able to get custody of my son and also If we take one child each will chinese law require me to give child support? Thank you for your time.

    • Jason Tian   •     Author

      Jon, are you both living in China? If yes, you can get the custody but it will be very hard given that the baby is too young at the time. If it could be the case that each of your has one child though this is controversial. Please try to settle with your wife and get things in order.

      • Jon H   •  

        Yes we are living in China. Thank you.

  2. Haulah   •  

    Hello I got my partner in African but he was Chinese and when I got pregnant he left for China and doesn’t want to take care of the baby. is there a law that can make him give child support to the baby?

    • Jason Tian   •     Author

      yes, so long as you can prove it is his baby, then you can sue him in China to give child support. but you need to do your math to see wehther it is worthy doing all the work accross the globe to go after him.

  3. Ceasar   •  

    Hello, I have a couple of questions regarding this interesting topic. My friend’s (westerner) wife (chinese) took the baby (6 weeks old) to her hometown. Then she was negotiating with her husband asking to be economically independent (fix amount) for taking care of the baby and the house. Husband disagrees, family expenses OK but not fixed salary. The wife says she won’t come back and may be asking for divorce. Can the husband ask for custody? Within the first 2 years it’s always the woman who get the custody, right? Thanks in advance.

    • Jason Tian   •     Author

      with the baby being so young, your friend has no way to take custody at this time. But then it will be difficult to take over the custody in the future as the child will be more dependant and accustomed to life built by her mom, father will be surely estranged. Husband shall need some other smart way to take over custody of the baby.

      • Ceasar   •  

        In this case it’s clear the Chinese mother can abduct the child and get away with it (different province). She’s even refusing to speak or cooperating to fix things. What happens if the husband retakes the child back in some kind of smart way? It seems it’s not a legal issue since it’s the father taking his child not a stranger. Thanks.

  4. Daisy   •  

    Hi. I met my partner in Australia. Then I born my daughter after 1 year in Australia . My partner told me that his parents retired and would look after my daughter for me few year until I settle my life in Australia. However I found out that he has wife after that. We separated, when my daughter turned to 3 years old, i authorised her to get chinese permanent resident (hukou) so she can go to school in case my visa in Australia is delayed. Now he and his parents don’t want to return her to me or even let me see her. I am Vietnamese in Australia. Are there Any chance that I can be my daughter legal guardian or at least have chance to get child visit? Thanks

    • Jason Tian   •     Author

      so you are legally married to him but born him a daughter. It will be very difficult for you to claim legal guardianship over the child and even get your visitation right. Best way to go is to negotiate with a settlment instead of going after anything in court.

  5. Kylie   •  

    Hi Jason,
    Would like to ask you about my fathers estates.
    I met him first time in my life 3 years ago. And he’s been terminally ill(brain cancer) ever since. I’ve visited him 4 times within 1 year. And accompanied him to hospitals during my visits. His mother is still alive, and his 3 sisters have been caring for him most time. Will I be able to inherit anything? (He owns at least 2 houses in shanghai). I’m afraid his sisters and mother already have split his estate without letting me know. What’s your advice?

    • Jason Tian   •     Author

      Yes, surely you are entitled to inherit your father’s estates unless he has made a will excluding you from inheriting the estates.

  6. D.W.   •  

    Hello, my friend says her husband took their son away from her when the child was under 2 years old. Then his family would not allow her to see their son at all. Her husband was also physically abusive to her. When they divorced, the court awarded custody to her husband because they said the child was in a stable living arrangements with the grandparents. They ignored the fact that her husband had taken the son away against her will, and did not allow my friend to see her son for a long time before she filed for divorce. Is there anything that she can do to win custody back?

    • Jason Tian   •     Author

      is your friend still living in China? Well, it is difficult to change custody but it will be very likely to win visitation right.

      • Debbie Wong   •  

        She fought to win visitation for 1 hour a month. Her ex decided that they would meet at a hotel that he chose. The first time he showed up, but after the visitation, he beat her. Then he has not shown up to anymore pre-arranged visitations. She still lives in Beijing I believe

        • Jason Tian   •     Author

          Every time clients inquire About child custody, in the end, we see clearly how poorly China law has offered to help the weak party in such a traumatic situation, and very often we don’t have a quick and effective way to stop the violence in a family setting. But when the law is so bad, we want to help, but we may fail clients in the end.

          Given all this happening this your friend’s case, she may try to fight to take over the custody but so long as she lives in China, that man may haunt her life. On the other hand, she may not be able to take the kid to USA or countries she can easily survive.

  7. Kevin Rivera   •  

    Hello my name is kevin i have a few questions.

    I have a friend that lives in the united states she is chinese she told me her story about her and her husband getting divorced. And that she doesnt have custody of the child becuase the men in china have more privelage.

    No matter what she do she pays almost $5000 of US$ to for her child and family to support him But still no help.

    Is there any way for her to get full custody of her child to be with her in the united states where she is currently living?.

    • Jason Tian   •     Author

      no way, if her husband doesn’t agree on her taking the child to United States, try to negotiate to have a settlement and get his permission on moving the child to USA.

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