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.

38 Comments

  1. N.W.   •  

    I am American citizen and my soon to be ex husband is from China. We married in the US. He filed divorce accusing me of violence because he wanted a US green card. After he filed divorce I later found out I’m pregnant. My lawyer is asking him for child support and I think he might go back to China to avoid child support in the US. Would there still be a way to make him pay child support if he was back in China? Or will it be a time and money consuming to go that route?

    • Jason Tian   •     Author

      You will have to sue him in China in order to get child support from him if he comes back to China and live in China. Well, it is not really easy for you to achieve your goal.

  2. Vasile Ion   •  

    Hello, can i Have the custody of My son 3.5 years old chinese , i am not maried whit mother of My son and She cant suport financial to grow up My son ( in the Last 3 years i support all the rent ,pay bill of electricity water , food Every day toys , clothes shoes , milk powder . Medicine , Kindergarden fee ) and small thinks fee about My son . What shouid i do legal to have the coustody of My son .

    • Jason Tian   •     Author

      So you must be at odds with your girlfriend? Are you registered as the baby’s father on his birth certificate? Where are your son and wife and you living now?

  3. Dave He   •  

    Thank you so much for your blog and resources, your service is great and much appreciated. I am an American-born Chinese with US Citizenship and my wife is Mainland Chinese with Hukou). We have a 3-year-old daughter together. We both have assets in China, Hong Kong, and America. The child was born in Shenzhen and is a dual citizen of China and the USA (meaning we have an American passport for her, and we never told l the Chinese authorities we obtained this). In China, she has the Hukou, ID card and Chinese Passport. In America, she is a full US Citizen. We enter/exit our respective countries on each of those documents. We have a special US visa in her Chinese passport allowing her to exit China.

    As things are presumably getting worse with between my wife and I, what is to stop me from taking our daughter to America without her consent and lodging divorce proceedings in America instead of in China? While the primary residence of the child is in China (about 8 months of the year), the Child also spends a considerable amount of time in America since her birth. There are no live-in grandparents, we have a full-time Nanny in China, we are both working professionals that give us the flexibility to travel.

    So what laws in China, if any, would prevent me from simply not returning to China on our next trip to America? As you may know, China is not a party to the Hague Convention of Child abduction, US courts tend to have better agreements for custody and division of marital property. And since China is not a party to the Hague Convention, that could mean my wife could simply vanish with our daughter (the same way I could also vanish with her in America).

    In America, there are kidnapping laws, but it seems in China there are no such laws. Could you please let us know if this is legally possible in China? I understand there are residency requirements in America that could be challenged, which could complicate any divorce proceeding with jurisdictional issues, however, I need to make sure my rights are covered in China as well and I would not be doing anything illegal in this process.

    • Jason Tian   •     Author

      Hi Dave, China is not a party to Hague Child Abduction Convention. On the one hand, if the child is kept in China, or even taken to China without your consent, you may have hard time to take the child back. On the other hand, if you take the child to the USA, your wife won’t be able to rely on that convention to request return of the child to China neither. However, USA has better law in protecting custodian right of the mother, in this regard, talk to an American lawyer for more. Nothing will prevent you from returning to China. While you talk about better arrangement in the USA, it may backfire you in regard of financial splitting. You should read another post on my blog regarding jurisdiction strategy on cross-border divorce. For your privacy reason, please write to me via emails for more discussion.

  4. Sasha   •  

    Hi Jason, I’m a mom of twin girls, who are 4 years old. I am a foreigner and my husband is shanghainese. We’ve been separated for over a year. We’ve both agreed it’s best for the children that they are raised in Shanghai. I’m apparently amidst a divorce case, from what I know the divorce isn’t quite final as yet. I haven’t demanded any finances or assets from him as yet (For certain reasons) One of the children has been granted to me and the other to my husband as per the court. The kids however are currently Both living with my mother-in-law. This was the agreement. I would like to take custody of the children, however I am unable to legally work in China because of my visa status, being a family visa. Is it possible for me to gain custody of both kids and Receive child support? What about children’s school fees? Would he Financially be obligated to pay for both or just for the one, if they’re taken care by me? Bearing in mind I cannot work to support even for just one of my kids? And it’s not like I can get a work visa because I don’t have a degree to do so. Thanking you in advance for your reply

    • Jason Tian   •     Author

      If the court has ruled in the custody of the children already, then follow the judgement unless the other party agrees on you taking custody over both children. Generally parents are both obligated to support the children though not necessarily equally. Given your situation of no work in China, I don’t see how you can convince the judge that the kids are best to be with you. However, I don’t see why you give up your right on claiming half or greater share of your community property for the reason that his family are raising both kids?

  5. Joey   •  

    Hi Jason,

    I am a foreigner and have a Chinese mistress (no marriage with her). We would like to make a baby born in China and I will sign a contract with her to provide for the baby’s expenses.

    Can my mistress sue me in court and demand more money? I am probably providing 5% of my salary which is sufficient for her and baby (agreed in contract) but I am afraid she would be greedy and demand more and sue me in court. Will the courts rule against me using the 20-30% rule for divorce cases, or honour my initial contract?

    • Jason Tian   •     Author

      Hi Joey, for child’s support fee, yes she will be able to get the child to sue you for more if the current 5% is not enough. There is no contract that can legally bar the child from asking for more. Given the today’s wide gap of people’s income, the 20-30% rate is no longer a standard, and the courts will usually look into the actual life expenses for the child.

  6. Alexander   •  

    Dear Jason

    Me Ukrainian and my wife is Chinese we have 6 years old son. We’ve been married for 8 years and now she want to break up and take our son with her.
    Two weeks ago she went on her business trip and then returned to China for Chinese New Year to visit her mother. After 10 days of communication we had a verbal fight over phone then she start to ignore me and my calls asking to leave her alone. After few more days she said she won’t come back to Ukraine because she doesn’t like living there etc. She said it will be better for us if we live separate. I have asked her are you leaving us what about our family and our son. She replied you can bring our son to China any time. Of course I have tried all my best to clear what is happened and why so radical change. I said we have family and kid we have to stay strong and keep fighting for our marriage. That it will not be good for our son if we go separate etc. She just said she is tired of fights and she doesn’t like living in Ukraine, I have told her that all couples fight or have arguments more or less, it’s not pleasant but considered as a normal thing for couples to fight from time to time. Any way, I’m afraid she gonna apply for divorce. We were married in china, our son was born in China. But in his 6 month age we agreed to sign him as Ukrainian. So he has Ukraine citizenship and ID.
    I want to leave my son with me here in Ukraine, he is going to school here, taking musical classes, etc. his first language is English with Russian and Ukraine as second and Chinese he only understand but cannot speak at all. I have a house and business in Ukraine with high income and my mother lives with us. I’m sending him to school by myself, taking him back home, play with him, educate him. He has a big family of relatives here with many cousins etc. Back in China we have nothing. My wife back to Shanghai but her hukou is from another province, she has no her own property nor her parents. So in Shanghai it will be only rented place. She has not been working for the past 7 years only part time things working on her computer from home. Because her English is not good as mine so I was taking care of his speaking and education and of course I was financing our family all the years. We have traveled the world as a family we have many evidence of that.
    She is not taking a good care of our son even she wants to divorce which I cannot change her mind I will not be fine if our son will stay with her. She is a typical Chinese girl spends most of her time on phone even she will find a job in Shanghai I’m afraid she will not spend much time on our son because of long hours of work in China. She has her mother in another city that she might ask to help with our son. But it means she has to make money enough for 3 people including her mother. And without own property what if she lose her job she might not have money to continue paying to support all of them.
    My question is do I have more chances to take a custody of our son?

    Thank you

    • Jason Tian   •     Author

      Alexander, is your son now living with you in Ukraine? if yes, sure you have a good chance to take over custody of your son. However it seems that you are not the party to initiate the divorce proceeding in China. If you are ready to move forward, then let me know. we are more than happy to help.

  7. Mera   •  

    Hi, my name is Mera

    This problem about my brother. We are chinese resident. He is divorce with his wife and want to get the custody of his son. The situation is, the son now 3years old, living with his mother and the son is on the wife’s hukou, while my brother is working at another country (only back to chine once or twice a year) and barely communicate with his son.

    The process already 2years but still no result. Is there any possibility to win the custody? Or my brother will never get divorce until his son 17years old?

    Thanks

    • Jason Tian   •     Author

      Mera,”he is divorce with his wife”? has divorced already or still in the process of divorcing? He can always divorce his wife no matter who gets custody of the child. In his situation, i believe he doesn’t have a strong case to win custody given his working outside of China.

      • Mera   •  

        Sorry, I mean still in the process of divorcing. Seems the court can’t give any decision until now. Still hoping can get the child custody. Thank you Sir

  8. Del   •  

    Hi Jason. I am a westerner living in China. My wife is chinese. I have evidence that she is committing adultery now. She takes 95% of my salary each month to take care of the family. She controls the finances but spends almost no time with our 5 year old son. I cook for him, help to educate him, I do everything for him. But she controls the money. What will the the court do if I provide evidence of her adultery? Will they likely give her custody due to the financial issue and the fact the home is in my name. Also my son’s passport is from my home country. Thank you in advance

    • Del   •  

      *I meant to say the home is in HER name, not mine

    • Jason Tian   •     Author

      why do you allow her to take 95% of your salary while you are doing a lot of homework? Adultery in China doesnot mean too much in court, but just an evidence to prove the breakdown of the relationship. As for custody, if you have income, and have been taking care of your son, coupled with her lack of devotion to your son, you have a good chance, though not guaranteed.

  9. Annie Z   •  

    Hi, I got divorced in China 9 years ago and had the court order by People’s Court stated that “My child will live with me until she is 18 years old”, which the judge told me means I have the full custody. However, recently when I applied the US passport for my daughter in the United States, they didn’t accept this as the prove of “sole legal custody”. How can I prove it? Thanks a lot!

    • Jason Tian   •     Author

      This is a problem we have encountered frequently and have no good solution. First of all, in China court judgments, generally we don’t use the word “custody” but “living with”, denoting physical custody indeed. You may have to work out a solution with your ex-husband to get his consent on your daughter naturalization.

  10. 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.

  11. 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.

  12. 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.

  13. 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.

  14. 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.

  15. 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.

  16. 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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