The father took away the nursing infant, the mother won the lawsuit but still faces difficulty in execution
What is the guiding significance of the first domestic marital custody lawsuit falling under the hammer?
■ Wang Jie, a mother from Baoding, Hebei, has not seen her child well for a year.
One year ago, on July 7, the under-1-year-old breastfeeding daughter was taken away by her husband and her mother and "hiding".
■ For a year, in order to get back the child, Wang Jie first tried to litigate for divorce, but failed.
While awaiting a second divorce proceeding, another marital custody suit was filed.
After two trials, he was granted the right to "temporarily directly raise the child".
The Rule of Law Daily wrote that this is the first case in China.
■ However, "winning the case" does not mean welcoming the child back.
The husband has yet to return the child.
Wang Jie said she had applied to the court for enforcement.
Legal sources said that the verdict in this case not only protected the rights and interests of children and mothers, but did not deprive the father of guardianship and visitation rights.
A conflict
Husband and wife quarrel and separate
Breastfeeding child taken away by husband
Wang Jie and Zhao Yong are junior high school classmates who got married in 2019.
However, the rift after marriage is unavoidable.
Wang Jie said that the source of the quarrel between the two sides is that they have different views on whether the dowry belongs to the joint property of the husband and wife.
In November 2020, the birth of her daughter did not stop the quarrel.
On April 18, 2021, the quarrel turned into a substantial conflict.
The two sides quarreled constantly and then separated.
During the separation, the competition for children begins.
According to Wang Jie's recollection, on July 7, 2021, she went to work as usual, and then received news that her child was taken away by her husband.
Wang Jie said that the mother was taking the child for a walk that day. During the process, the husband's family caught up behind him, expressing that he would take the child to buy food, and then took the child away without returning.
After Wang Jie contacted Zhao Yong, the phone was not answered, and her mother-in-law also blocked his WeChat.
After multiple contacts failed, Wang Jie called the police, but the police did not call the police on the grounds that it was a family dispute.
After that, Wang Jie went to Zhao Yong's house many times to look for the child, and sent a message asking where Zhao Yong's child was, but received no reply.
At that time, the child was breastfeeding, and was allergic to some milk powder, and was forcibly weaned from breast milk, which made Wang Jie worried.
In the second-instance judgment on marital custody provided by Wang Jie, Zhao Yong's party has different views on taking the child away on July 7, 2021.
Zhao Yong stated that they took their children to buy things that day. When they came back, they found that the door of the house had been changed and they could not enter the door. They called Wang Jie and could not be reached, so they went back to their hometown and did not contact Wang Jie later.
After that, Wang Jie filed a divorce lawsuit in the People's Court of Jingxiu District, Baoding City on July 20, 2021, and wanted to obtain custody of the child through the divorce lawsuit and get the child back.
The Chengdu Business Daily-Red Star News reporter called Zhao Yong and was hung up after revealing his identity.
B lawsuit
Court rejects divorce
Wife files marital custody lawsuit
Wang Jie said that from August 2021 to April 2022, she sent messages to Zhao Yong almost every day, asking when she could see the child, but she basically got no reply.
During this period, Wang Jie, who had never seen her child, was on the verge of breaking down emotionally.
She searched for similar situations on the Internet and found that in most custody cases, the court was sentenced to the side where the child was due to difficulty in enforcement, and the possibility of recovering the child was very small.
"After knowing this situation, I don't know what to do. The divorce court was also due to the fact that the man's application for jurisdiction could not be opened, so I could only wait helplessly."
Wang Jie firmly believes that she is in the right, and she wants to protect her rights and interests through legal means.
In order to have a child, she spent a lot of time studying law as a college non-law major.
According to her, Article 20 of the "Family Education Promotion Law" promulgated in 2021 stipulates that whether it is divorce or separation, one party must not hinder the other party from implementing family education for children.
Article 24 of the Law on the Protection of Minors also stipulates that the right to custody shall not be contested by means of snatching or hiding minor children.
An article on the official WeChat account of the Supreme Court also mentioned that cases involving minors should be based on the principle of maximizing the interests of children.
This principle gave Wang Jie the biggest motivation, "The child is so young and still breastfeeding, she follows her mother, I think it is most beneficial to the child."
She believes that the law clearly stipulates that both husband and wife have equal custody of the child. "No matter who is raising the child, the premise is that he cannot hide it. He has to tell me the living conditions of the child. At least I have the right to know."
The divorce case between the two parties will start in December 2021, and the court has not approved the divorce.
On January 5, 2022, Wang Jie filed a marital custody lawsuit.
In March, the first-instance judgment of the case was pronounced, and the judge dismissed Wang Jie's claim on the grounds that there was no evidence to prove that Zhao Yong had not raised and protected his children.
Wang Jie refused to accept it and filed an appeal on April 2.
C wins the case
The court ordered temporary support by the mother
The child has not been returned and has applied for enforcement
The second instance of marital custody began in May this year.
Perhaps he was under pressure during the trial. Shortly after the trial, Zhao Yong asked Wang Jie to see the child. This was the first time Wang Jie had seen the child in 10 months.
That day, Wang Jie stayed with the child for more than an hour and "had a good time".
In June, Wang Jie saw the child for two consecutive days.
On July 15 this year, Wang Jie's mother received a verdict from the court, ruling that Zhao Yong and his mother should hand over the child to Wang Jie within the specified time limit, and Wang Jie would directly raise the child for the time being.
In the judgment, the court found that: in the early days of the separation, Zhao Yong was not active in Wang Jie's request to visit his children. After the first-instance judgment, Zhao Yong basically cooperated with the visit, but due to misunderstandings about the epidemic prevention and control policy, Wang Jie failed to do so before the trial. Visit the children smoothly.
The court held that the child was taken away while breastfeeding. From the perspective of the protection of minors, Zhao Yong and his mother arbitrarily picked up the wedlock daughter who was still breastfeeding and refused to return the child to his mother. As a result, the child was forced to stop breastfeeding, and Wang Jie was not allowed to see the mother and daughter of the child.
The actions of Zhao Yong and his mother were not considered from the perspective of protecting the physical and mental health of minors, but to satisfy their own emotional needs, depriving their children of the right to enjoy maternal love in the name of love.
The court also held that Zhao Yong took away the married daughter and hid it without the consent of the husband and wife. After that, he took a negative attitude towards Wang Jie's request to visit the child and concealed his residence, resulting in Wang Jie being unable to visit the child for a long time.
The behavior of Zhao Yong and his mother violated the principles of "most beneficial to minors", protection of women's rights and interests, and equal exercise of guardianship. The court of second instance gave a negative evaluation to Zhao Yong's behavior.
After receiving the verdict, Wang Jie notified Zhao Yong and asked him to deliver the child at 10:00 a.m. on July 20.
But so far, Zhao Yong has not returned the child.
Wang Jie said she had applied to the court for enforcement.
Lawyer's statement
The verdict is very personal
groundbreaking guidance
Mothers in situations like Wang Jie’s share a common name, “Purple Ribbon Mothers”—a rights-defense group made up of victims whose underage children were robbed and hidden.
Guo Xiaoming, a lawyer from Shanghai Zhonglian (Chengdu) Law Firm, who has long been concerned about the "Purple Ribbon Mothers" group, told reporters: "Judging from the circumstances of this case, the man forcibly took the child away, which is very detrimental to the child's physical and mental growth. There is also no direct judgment that the child should be brought up by the woman. It also protects the man's visitation rights, which is a balanced judgment." Of course, when the two parties divorce, the child's custody, joint property and joint debts will still have to be re-made. judgment.
Guo Xiaoming believes that Wang Jie's case has certain guiding significance, "There is a clear stipulation on which party the custody rights belong to after divorce, but in this case, the two people have not yet divorced, and both parents have equal rights. Which party lives together, generally the court will not directly decide on the ownership of guardianship, but multiple judgments to protect visitation rights.”
The judgment of the Baoding Intermediate Court refers to the principle of direct custody of children after divorce, which is very humane and a breakthrough judgment.
Guo Xiaoming introduced that at present, the "Law on the Protection of Minors" has stipulated that it is not allowed to compete for custody by robbing and hiding minor children, but there is a lack of penalties for violating this provision.
More realistically, when the court decides on custody, it will consider who the child lives with for a long time, forming a stable living environment, and make a judgment accordingly.
"Snatching and hiding underage children is an illegal act, but it can be supported in the judgment, which is contradictory."
The staff of Baoding Intermediate People's Court told reporters that the judge is still communicating with the Women's Federation and the community to deal with this matter, hoping to resolve the contradictions between the two parties successfully, not wanting the children to be harmed twice, and also hoping to explore the feasibility of this matter. Solutions to things like that.
(Wang Jie and Zhao Yong are pseudonyms in the text)
Chengdu Commercial Daily-Red Star News reporter Song Xinze Du Yuquan intern Zhang Yushi