Even if the husband and wife are divorced, their daughter is not allowed to leave! The court responds to the challenge
Couples do not want children when they file for divorce, and the first instance court ruled that divorce is not allowed!
Such a case appeared on the hot search and aroused widespread concern.
What is the basis for the court to make this judgment?
Is it reasonable?
Why not directly award the child to one of the parties?
The headquarter reporter interviewed the assistant judge in this case.
I'm not willing to have a daughter in a divorce lawsuit
The court's first-instance decision not to grant divorce
It is understood that the parties involved in this case are a post-90s couple in Zhenjiang, Jiangsu.
The two registered their marriage in 2016 and gave birth to a daughter in the same year.
In recent years, husbands and wives have been in disagreement, quarreling frequently due to trivial matters in life, and separated from each other since April 2020.
The conflict between the two parties became more and more serious, and his wife, Ms. Liu, sued to Zhenjiang Yangzhong City People's Court for divorce. In this regard, her husband, Mr. Zhao, clearly agreed to the divorce.
The two parties did not have much dispute over the joint property and joint debts of the husband and wife, but what is surprising is that they are unwilling to raise a healthy and healthy daughter.
Ms. Liu said that her income is not high and her mother is in poor health and is unable to raise her daughter. Mr. Zhao said that she often travels on business, her parents are older, and her child is a girl after all, so following her mother is more conducive to growth.
Regarding this, the judge organized many mediations without success.
The Yangzhong court found that the relationship between the husband and wife had broken down. Although both agreed to divorce, the child was still young.
In view of the failure of the two to properly resolve the child's upbringing problem, the court decided not to grant the divorce at first instance.
Husband and wife want to leave but not judge
Is this reasonable?
What are the reasons for this decision?
Is it reasonable?
Wang Shuanglei, the assistant judge of the Yangzhong City People’s Court who heard the case,
told reporters that according to our national law, in divorce cases, the criterion for judging whether the relationship between husband and wife should be dissolved is whether the relationship between the husband and wife has broken down. In this case, both husband and wife agree to the divorce. Shows that the relationship between husband and wife has broken down.
"But divorce cases do not only involve the relationship between husband and wife. In divorce cases, it generally includes how the property of the husband and wife is divided, how the debts of the husband and wife are borne,
and another very important issue is the upbringing and visitation of minor children. The issue of children should be properly handled. The importance is no less important than whether to give a divorce decision to both spouses."
Regarding the issue of raising children, the people's court should proceed from the protection of the legitimate rights and interests of the children, and properly resolve it in light of the specific circumstances such as the raising ability and raising conditions of both parents.
Wang Shuanglei stated that the relevant judicial interpretation of the Supreme People's Court on the Civil Code stipulates that in the divorce proceedings, if both men and women refuse to raise their children, the court may rule in advance that one of the parties is to support them temporarily.
"But it can be said that both men and women refuse to raise them. It can be said that there are very few cases. We may not encounter one in 100 cases."
He pointed out that in this case, considering the economic conditions and the time to accompany the children, the raising conditions of the husband and wife are basically the same, and the children have not established a special raising relationship with either party,
but the attitudes of both parties are not willing to raise the children. It is clear that if the court forcibly awards the husband or the woman to support, the supporter will inevitably regard the child as a burden, which is not conducive to the growth of the child.
"In this case, the court first decides not to allow a divorce, and gives the couple a period of time so that they can negotiate and deal with the children's affairs without the intervention of a third party. It is better than the court to make a judgment directly. some."
With regard to the court's approach, lawyer Fu Jian from Henan Yulong Law Firm also agreed.
He said that custody has certain personal attributes and cannot be handled mechanically.
The custody rights can be divided by a single judgment, but there is no "case settlement" afterwards, which is not conducive to the settlement of conflicts and disputes.
Let the husband and wife rethink and accept parenting voluntarily psychologically, rather than being forced to accept parenting, which is more conducive to the growth of the child.
To whom the child is awarded
What factors will be considered?
In divorce cases, when considering to whom the child is ultimately awarded, what factors will the court generally consider?
Attorney Fu Jian said that on this issue, the court will consider the child’s age, gender, who he usually lives with, the working conditions of both parents, income conditions, physical conditions, and whether they are voluntarily raised, etc., and make a comprehensive evaluation and make a comprehensive evaluation. The judgment that is most conducive to the growth of the child.
Attorney Fu Jian stated that according to the law, children under the age of 2 are generally raised by the woman; children between 2 and 8 years old, according to the specific circumstances, will make a judgment that is most conducive to the growth of the child; if they are over 8 years old, the child's personal wishes will be solicited Consider it.
Why not deprive parents of their guardianship and custody rights?
not that simple
Regarding the court’s decision, some netizens applauded, and some netizens commented that if both spouses are unwilling to raise the children, even if the divorce is not sentenced, the children will not be good for the children, and the couple should be deprived of their rights. The right of custody, guardianship, and the transfer of the child to the orphanage or finding a family willing to take in for the child is more conducive to the growth of the child.
In this regard, the lawyer said that this view simplifies the problem too much.
The director of the Partnership Legal Affairs Department of Beijing Jingshi Law Firm and the partner lawyer clearly pointed out that the
primary responsibility for child support is the parents, and the parents should be guided to assume the responsibility of raising their children through laws and policies.
According to the law, only orphans, minors whose biological parents cannot be found, and when their biological parents have special difficulties and are unable to raise their children, the minor can be adopted.
In other words, it is not stipulated that when both parents are unwilling to raise a child, the child can be adopted.
Child welfare and adoption centers generally adopt abandoned babies, and both parents of abandoned babies are suspected of committing the crime of abandonment and may face criminal responsibility.
Attorney Fu Jian from Henan Yulong Law Firm also stated that in
this case, the parents of the child are still alive but they just don’t want to raise them instead of lacking the ability to raise them. Sending the child to an orphanage or other family is undesirable, and it’s not conducive to the growth of the child. .
Wang Shuanglei, assistant to the judge in this case, also stated that only when the parents seriously infringed the legal rights and interests of their minor children would they be deprived of guardianship.
In this case, both husband and wife have fulfilled their obligations to raise the children. "The little girl is now living well and has not been abused."
The appeal period has passed
The plaintiff did not appeal
"We have seen some comments on the Internet, and we are worried about whether the two will spill fire on the child after the verdict is passed. Netizens may not fully understand the situation and these worries are unnecessary." Wang Shuanglei said: "When the parents divorced If you don’t agree to raise a child, it doesn’t mean you don’t love the child. If you don’t raise a child, it may be restricted by various conditions. For example, if the economic conditions are really poor, it doesn’t mean you don’t love it. These are two completely different situations."
Reviews
He stated that in
this case, both husband and wife did not want the child to be "a source of anger."
"In fact, both of them love children. The woman clearly requested that the man be awarded when she filed a lawsuit. During the mediation process, we learned that the woman is indeed not very economical. After seeing the woman's attitude, the man also said that he would not raise the child The conditions they mentioned to each other were obviously arrogant. The woman said you want to give me a house, and the man said that your daughter should not meet her before the age of 18. It's not that the two really don't love children anymore."
It is understood that the appeal period for this case has now passed, and the plaintiff has not filed an appeal.
Source: Voice of China Central Radio and Television Station