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For the best interest of the child

(2011-03-17 15:56:59)
标签:

child

custody

抚养权

杂谈

When the divorce war field expands to the court, the court will become the place full of abuses, accusations. More often than not, child custody will evolve into a thorny issue when both parties forget what they believe at the first time that they should do what is to the best interest of child. Each party, with the trial going on, will allege never to give up the child custody and will tell lots of stories how he or she cares for the child and how the other party never spares time with the child. When that situation occurs, it will become very difficult for the judge to decide which party is telling the truth. Therefore, the tangible factors will turn into key reasons for the judge to decide on the child custody, sometimes the only reasons even if, to me, such tangible factors sometimes becomes too important for the judge to decide on who shall have the child custody.

Whenever child custody is fought for, if the child is between 2 years to 10 years old, the question frequently asked is who the child is now staying with. The common practice for a court is to change as little as possible the child’s present life. As I was once informed by a presiding judge from a district court that among all the divorce cases she has handled, only one case she changes the child’s present living status for the reason that the child has foreign nationality and it will be better if the child stays with the parent who has the same nationality with the child since the child is not entitled to all the welfares as a Chinese citizen. Of course, there exist other factors but the citizenship seems in that case plays a key role in that case.

Yes, the child’s present living status is very important. However, let us not forget about the basic principle “for the best interest of the child.” The fact which party the child stays with when the divorce war starts does not necessarily mean the child is happy with where he/she is now. It is a pity that judges in our country have too many cases and are too busy to pay one home visit to the child. When the famous celebrity divorce starts in Tai Wan and the child custody catches lots of attention both from the media and from the common people in mainland China, judges in Tai Wan pay separate visits to the child when she stays with father alone and when she stays with mother alone and issue the judgment for shared child custody. What impresses me is that the judges at least have done the basic homework. The child’s present living status may say something but who can tell whether the child is happy or not with the present life? To cause little change to the child present life does not necessarily mean that works best for the child. In China, for a child between the ages of three years old to six years old, most of the time during the week is spent at the kindergarten. When the parents start division, the child’s life after the school usually will be separated into two parts either with father or with mother, like from Monday to Friday with father and from Friday night to Monday morning with mother. Under the circumstances, the fact who the child is staying with will be meaningless and this might be necessary for the judges to pay a home visit to each home to have a glimpse of what is really going on there.

Another tangible factor is Hu Kou, the registered residence place. This is really Chinese characteristic. Under Chinese laws, that where the Hu Kou is registered for stands for where the residence place is. However, the separation between the Hu Kou and the place where the person actually lives is not rare in China, especially in cities like Shanghai. Ever since March 1st, 2011, Jia Ding District in Shanghai has become the first district to start the registration of real residence place and the separation between a person and the place where the Hu Kou is registered. In a divorce case, the registered residence place will be considered by the judge as the habitual place where the child stays. If it happens the child’s Hu Kou is registered in the place which is one party’s property, unless such a party gives up the custody, the chance for such a party to get the child custody is comparatively big as the judge will believe such a party will provide a stable home with the child. In China, when a child is born, its Hu Kou is registered at the place either where the father’s Hu Kou is registered or the mother’s Hu Kou is. When a couple gets married, usually the wife will change her Hu Kou to the husband’s place and when divorce takes place, the wife may have to find a place to relocate her Hu Kou. Of course, the wife or husband may keep her or his Hu Kou unchanged. After divorce, if the couple’s two Hu Kou are at the same place, one has to get his/her Hu Kou moved elsewhere as with the dissolution of the marriage, the two have no legal relation any longer and the foundation for the moving in of one party’s Hu Kou is no longer in existence, either the wife or the husband has to change her/his Hu Kou to another place. Therefore, in a divorce case, who owns or rents the place where the child’s Hu Kou is registered, such a party will be at advantage over the other party which custody is decided unless the other party finds another place to move the child’s Hu Kou in. In other words, the combination of the person and Hu Kou is considered as important in divorce cases. In addition to a stable home for the child to stay, what is behind the Hu Kou is that the Hu Kou may be closely related with the schools where the child can enter into and with the resources of the area the registered residence place belong to. In Shanghai, the education resources in different districts vary greatly and the school will enroll the students based on Hu Kou place and on the ownership, ie., where the property the parents or grandparents own is. Normally, the Hu Kou place and the property will be the same place but the separation between the two places are not rare, that is so called the separation between Hu Kou and Person. In a divorce case, the combination of the Hu Kou and the person (the real place where one party lives) will be considered as a key element for the judge to decide on the child custody despite of the fact that the separation between Hu Kou and the person is a trend. Furthermore, to raise a child needs more than a Hu Kou and a place to live in, it needs the care, the love and the patience.

It is a pity that in China, cheating and lying is not considered as a serious crime at Chinese court. So much attention is paid to what is tangible and what can be proved at a divorce trial while little attention is paid to what kind person he or she is. There is still a long way to go before what works best for the child becomes a reality in divorce cases but such a day will come and this I believe in without any doubt.

 

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