Children Custody

Relating Law Resource of Child Support during Divorce -China Marriage Law 

Article 33If the spouse of a soldier in active military service desires a divorce, the soldier's consent must b e obtained, except that the soldier commits a serious fault.Article 34A husband may not apply for a divorce when his wife is pregnant or within one year after the birth of a child or within six months after pregnancy suspension. This restriction shall not apply in cases where the wife applies for a divorce, or when the people's court deems it necessary to accept the divorce application made by the husband.Article 35If, after divorce, both parties desire to resume their husband-and-wife relationship, they shall register for the remarrying of each other with the marriage registration office.Article 36The relationship between parents and children shall not come to and end with the parents' divorce. After divorce, whether the children are put in the custody of the father or the mother, they shall remain the children of both parents.

After divorce, both parents shall still have the right and duty to bring up and educate their children.

In principle the mother shall have the custody of a breast-fed infant after divorce. If a dispute arises between the two parties over the custody of their child who has been weaned and they fail to reach an agreement, the people's court shall make a judgment in accordance with the rights and interests of the child and the actual conditions of both parents.

Article 37If, after divorce, one party has been given custody of a child, the other parent shall bear part or the whole of the child's necessary living and educational expenses. The two parties shall agreement regarding the amount and duration of such payment. If they fail to reach an agreement, the people's court shall make a judgment.

The agreement or the court judgment on a child's living and educational expenses shall not prevent the child from making a reasonable request, when necessary, to either parent for an amount exceeding what was decided upon in the said agreement or judgment.

Article 38After divorce, the father or the mother who does not rear their children directly shall have the right to visit them, while the other party shall have the duty to give assistance.

The parents shall reach an agreement about how and when to exercise the right of visit. If they fail to reach an agreement, the people's court shall make a judgement.

If the father or the mother visits their children to the detriment of their mental and physical health, a people's court shall suspend the right of visit according to law; and such a right shall be restored after the main content of the suspension disappears.

Child support problems may exist if a parent refuses to pay or cannot pay due to changed circumstances. Some parents try to evade child support payments because they feel that they are unfair, or because they do not feel that they can afford them. If you are not receiving court ordered child support payments, you have legal rights to the payments and an experienced family law attorney can help you pursue legal action.

Child Support Issues

Remedies available to a parent who is not receiving court ordered child support payments include wage garnishments, wage assignments, contempt of court decrees and the seizure of property by writ of execution. Courts do not take child support orders lightly. Refusal to pay may worsen the non-payers chances of favorable future judgments regarding the case. A parent has the duty to care for his or her children whether or not they choose to be involved. Financial responsibility is one of the ways a court holds parents to this.

There are some situations in which changed circumstances may warrant the court's modification of a support order. It is up to the parent who needs the modification to file a petition for modification with the court and provide the other parent notice. Courts generally only make modification to support orders when circumstances have substantially changed in such a way that prevents the parent from paying the court ordered support. Loss of job, illness or injury, reduction in income, remarriage of either party and other factors may be considered when a party seeks a modification.

Child support and visitation are considered separate issues from child support. Thus, even if the noncustodial parent does not meet child support obligations, the parent is still entitled to visitation. A parent who is denied visitation must still pay child support though. Preventing a noncustodial parent who has not paid child support from visiting a child can result in legal action.

Getting Legal Advice

An attorney will be able to help you handle the legal action necessary to enforce your court ordered child support payments. Depending on the jurisdiction of your case, you may be entitled to garnish the wages of the parent who refuses to pay. Because child support is a legally binding obligation, a parent who refuses to pay has little recourse from further legal actions.

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