Children Custody

In a divorce situation, there are likely to be many child visitation issues. The first issues may arise when visitation or custody is set in the first place. A visitation order will generally be created, either by the parents or the judge. This visitation order is a legal document that will outline the non-custodial parent’s visitation rights. It will typically include the information regarding the exact dates and times that the visitations may take place, the duration of the visitations, and whether the visits must be supervised our not. Such details will often be based on weekends, school vacations, and holidays. It will also be in accordance to the residences of both parents, i.e. whether they are both local or have plans of relocating. Travel time will of course be considered. This legal document is drawn up as an important step in the divorce proceeding. It may be however modified later on.  

Child Visitation Issues

Despite child visitation details being stated clearly in the order, several issues may still arise and cause conflict between both parents.

  • Usual problems encountered involve antagonism between parents, disorganization, and lack of priorities. All these factors may result in the violation of the visitation order.  
  • There are non-custodial parents who do not take full advantage of their visitation rights. In some cases, especially where both parents are not on good terms, the non-custodial parent may be inconsistent with his or her visitations as a way to spite the custodial parent. There are also many other possible reasons for irregular or inconsistent visitations. Some may be genuine –perhaps the parent had work obligations or heath problems. However some reasons are purely selfish –a non-custodial parent may sometimes choose to only visit when it is most convenient.  
  • When a non-custodial parent repeatedly fails to follow the visitation schedule, one of the simplest ways to resolve this is through communication. Both parents must talk and come to an agreement prior to each visitation to make sure if the plans will go through or not. If after such conversations the non-custodial still is inconsistent, the custodial parent has the right to seek legal intervention to alter or to eliminate the visiting schedule.   
  • The custodial parent could also refuse to allow the visitation that the schedule permits. If this is the case, the non-custodial parent could have to get legal help enforcing his or her right to the children.

Seeking court intervention should be the last resort when trying to solve these issues. However, when parents have repeatedly failed in resolving the problems, the parent who is considering court action should keep record of the dates and times the visitation order was clearly violated. The record should also include the child’s reactions to such violations, as well as your attempts to resolve the issues.

Getting Help

If your visitation schedule is not working, you should strongly consider contacting a lawyer. Your attorney can explain to you any legal rights you may have for getting the problems with visitation corrected so you can better protect your children's interests.

Relating China divorce law resource

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.

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