How to solve the difficulties in the enforcement of visitation rights
emotional obstruction and other factors make it difficult for the divorced party and their children to meet
● The biggest difficulty in the enforcement of visitation rights lies in emotional obstruction, which is mainly manifested in the obstruction and non-cooperation of the supporter, and it is difficult for both parties to reach a consensus on the time, place, and method of visits.
● It is not enough to rely solely on the law for emotional enforcement. The enforcement judge needs to devote more emotions to resolve the grievances between the two parties based on the concept of good faith enforcement, and make use of the care and love of both parties for their children and their mentality to promote their healthy growth. Negotiate with both parties about feasible visitation plans
● The exercise of visiting rights should adhere to the principle of prudence.
In order to facilitate the exercise of visitation rights after divorce, the judge must consider who is the child's supporter at the trial stage, explain the supporter's obligation to cooperate with the other party's visit, and take vaccinations in advance
□ The reporter's trainee reporter Zhang Shoukun
□ Our reporter Zhao Li
In a divorce dispute, Wang Jianna hadn't seen her daughter for more than 4 years-her daughter was snatched by her father Liu and hidden.
Over the past four years, after many lawsuits, Wang Jianna lost her child's custody rights, and the court-supported visitation rights have not yet been realized.
In desperation, Wang Jianna had to apply for compulsory visitation rights at the beginning of this year.
At present, Liu has been included in the list of untrustworthy persons subject to enforcement, and the court has taken measures to restrict consumption.
However, the court's execution reward announcement has been announced for several months, and Liu still has no news.
This means that more than half a year has passed, and the enforcement of visitation rights has not yet achieved satisfactory results.
"Why is it so difficult to enforce visitation rights?" Wang Jianna was puzzled.
This is also the confusion of many divorced couples.
In recent years, the issue of visiting minor children has become more prominent. A reporter from the Rule of Law Daily conducted a search on the China Judgment Document Network on the grounds of "visiting rights disputes" and found that the number of documents in 2018, 2019, and 2020 were 4898 respectively. , 6246 pieces, 6023 pieces.
Due to the complexity and repetitive nature of visitation rights, it often becomes a stumbling block for couples after divorce.
In judicial practice, compared with property rights, the enforcement of visitation rights makes executives feel dilemma.
Why is it difficult to enforce visitation rights?
In order to resolve visitation rights disputes and effectively protect the physical and mental health of minors, what measures will the court take?
Can the problem of enforcement of visitation rights be fundamentally solved?
To this end, the reporter conducted an in-depth interview.
The purpose is not pure, regardless of the child's feelings
Enforcement of visitation rights meets multiple obstacles
Execution is the focus of the court's work. Execution in the general sense is mainly related to property. Most of this execution involves well-known concepts such as lending and "Laolai". The courts often adopt tough measures to resolve such executions.
But in civil disputes, there are some special enforcements, including enforcement of visiting rights.
Ms. Yan from Xi'an City, Shaanxi Province is in pain that the visitation right cannot be enforced. “It has been almost 4 years. Although she applied for enforcement, she never saw her child again after the divorce”.
At the end of 2017, Ms. Yan and her husband litigated for a divorce. The court awarded the custody of the child to the man. Ms. Yan has the right to visit the child.
But no matter what she asked, the other party refused to let her see the child.
Later, Ms. Yan discovered that the child was taken back to her hometown by her grandmother and hid before the divorce proceedings.
In desperation, Ms. Yan applied to the Xi'an court for compulsory enforcement of visiting rights.
After a period of time, the court terminated the enforcement on the grounds that it failed to contact the parties many times.
"After so many years, can I still apply for enforcement again? It is not one of the spouses but the grandparents or other people who prevented the visit. Can compulsory measures be taken against them?" In an interview with reporters, Ms. Yan suggested this. Confuse.
Yan Tinghai, a post judge of the Executive Bureau of the People's Court of Donghai County, Jiangsu Province, told reporters that the right of visitation is an act of enforcement and can only be enforced within the next 6 months. What has passed before can no longer be enforced.
If the opposing party does not cooperate, they can apply for multiple applications, and other people other than their parents can also take relevant measures when they obstruct the execution.
According to Wang Huixing, Judge of the Executive Bureau of the People’s Court of Yuhang District, Hangzhou City, Zhejiang Province, compared with property rights, visitation rights are a way for the parties to realize their parental rights, with a strong emotional touch. Therefore, the biggest difficulty in the enforcement of visitation rights lies in emotional resistance. , Mainly manifested in the obstruction and non-cooperation of the supporter, and it is difficult for both parties to reach a consensus on the time, place, and method of visits.
“In general cases of execution of monetary benefits, when the person subject to execution has the ability to execute the refusal, there is basically no obstacle or psychological burden when the people’s court takes measures such as detention and fines. If the father or mother of the child is not fulfilled according to the agreement, will the court detain the child’s father or mother, will it bring a psychological shadow to the child? Is it conducive to the healthy growth of the child? Does it violate the original intention of visitation rights? So the court will generally not lightly Take compulsory measures." Wang Huixing said.
Li Yunfei, the executive judge of the People's Court of Tianjin Jinnan District, told reporters that visitation rights are closely related to maintenance payments. The payment of maintenance payments has a close influence on the realization of the visitation rights. The correlation between the two causes the visitation rights to be affected by other factors.
In Yan Tinghai's view, the most important thing is that some people have impure goals.
"Some parties do not allow or cooperate with the other party to visit their children, not to take care of the children's feelings, but to satisfy their own other purposes. The children's feelings are often not the first element considered by these parents. These parents are too selfish, ideological and conceptual. The concept of the rule of law is also very backward."
Li Yunfei said that sometimes there are conflicts between the content of the judgment or mediation statement produced in the trial and the enforcement, which is also an important reason that makes it difficult to enforce the right of visitation.
"For example, it is agreed to see children 3 times a week, visits on Saturdays and Sundays, or visits in amusement parks or shopping malls. Once the case enters the compulsory execution procedure, the applicant is required to strictly follow the time, frequency, and place of the judgment or mediation to realize the right of visits. It will cause great difficulties to the implementation."
Strengthen communication, pay attention to interpretation
Respect children's wishes and implement them in good faith
On the afternoon of June 1 this year, at the gate of Donghai County Court, the executor Zhu met the child he had not seen for a long time. Although the meeting place was in front of the solemn court building, the strong affection between father and son was still felt at the scene.
It is understood that in the previous lawsuit, Zhu and the child’s mother Luo reached an agreement on visitation rights under the auspices of the court. Later, the two parties had disputes over the way of visits and the payment of maintenance fees. In order to continue to exercise the visitation rights, Zhu appealed to The court applied for enforcement.
The undertaker of the case was Yan Tinghai.
Through telephone communication and enforcement file review, Yan Tinghai found that the crux of the contradiction in this case was the dispute over the payment of support and the time and place of the visit. After many communications and coordination with both parties, Zhu said that he would continue to pay the support as agreed. Luo told the court The executive expressed understanding and was willing to cooperate with Zhu to exercise his visitation rights.
In order to ensure the smooth progress of the visit, the location of the visit was finally determined in the office area of the Donghai County Court.
After the father and son met, they went to the commercial street to play. The joy of reuniting after a long time made the child spend a pleasant afternoon, and then Zhu returned the child somewhere in Luo.
Zhu also submitted a written application for closing the case on the spot.
In Yan Tinghai's view, the "secret recipe" for the successful implementation of this visitation right is to communicate with both parties and relatives behind the parties to the greatest extent, and explain the law to them.
"In the process of enforcing the visitation right, a safe, secure and free visiting environment must be provided to ensure the safety of the children, so that both parties and the relatives behind the parties put down their guard. At the same time, the judge should appropriately sacrifice rest time and take care of the children. Gain the trust of both parties." Yan Tinghai said.
Wang Huixing believes that there are many things that need attention in order to successfully enforce visitation rights cases.
For example, to protect children’s interests, the principle of maximizing children’s interests must be followed, and children’s convenience should be the first priority in exercising visitation rights; children’s own wishes must be respected, and children’s age or cognitive ability is sufficient to express themselves clearly and truthfully. When they wish, they should be solicited; attention should be paid to whether there are situations affecting the physical and mental health of their children in specific cases, and visits should be suspended; more persuasion and education work should be done to avoid hasty detention and other compulsory measures.
Li Yunfei added that for emotional enforcement, it is not enough to rely solely on the law. It is necessary for the enforcement judge to devote more emotions to resolve the grievances between the two parties in accordance with the concept of good faith enforcement, and use the care and love of both parties for their children and promote the healthy growth of their children. Psychology, negotiate with both parties on a practical visitation plan.
Adhere to the principle of prudence and consider all aspects
Give full play to the linkage mechanism to solve multiple problems
In cases involving marriage and family matters, tougher coercive measures are not the first consideration for judges, nor are they the best solution.
On the afternoon of June 10 this year, a mediation on custody disputes was underway in the third-level family care room in Jinnan District, Tianjin.
Prior to this, both men and women asked for custody of their children, did not make concessions to each other, and even called the police several times.
As the mediation progressed, the atmosphere gradually eased.
In the family care room, the psychological counselor communicated with the child individually and used psychological games to accurately grasp his wishes, and found that the child’s descriptions in the game were all trivial things of living with the mother.
On this basis, the judge took a plan that is more conducive to the healthy growth of the child as the starting point of the mediation work, did a lot of interpretation work for both parties, and also pointed out the problems in the way that both parties treat their children.
In the end, the man agreed to respect the opinions of the child and changed the custody rights to the woman, and the two sides also reached an agreement on the issue of support and visits.
A case of fighting for the custody of children was resolved harmoniously in the family care room.
On June 1st of this year, under the guidance of Tianjin Women’s Federation and Tianjin Jinnan District Committee and District Government, the first batch of district, town and community (village) three-level kinship observation rooms in Tianjin jointly established by the People’s Court of Jinnan District and Jinnan District Women’s Federation was officially officially launched run.
The above case is also the first case in which disputes have been successfully resolved through the platform since the operation of the family care room.
Li Yunfei said that the family care room has hired family care workers and psychological counselors to provide psychological counseling and repair family relationships during visits. Parents who need visits can also make appointments through the family care room.
The Hailing District People's Court of Taizhou City, Jiangsu Province has adopted a "visiting witness system" to resolve the difficulty in enforcing the right of visitation.
On December 1, 2018, the Hailing District Court settled a divorce case, but how to implement the mediation statement after it took effect and how to avoid disputes during the implementation process have become a headache for both the judge and the parties.
"It would be great if there was an intermediary to supervise it." Both parties thought so.
As a result, this case became the first divorce case that introduced the "visiting witness system" in the Hailing District Court.
Since the implementation of the “visiting and witness system”, good results have been achieved, and the parties have never gotten into trouble because of the visitation issue.
In addition, the Hailing District Court also creatively tried the "visiting witness system" to continue the family relationship after the dissolution of marriage.
Wang Huixing suggested that the court should select experienced executives to handle such cases, and if necessary, adopt compulsory measures such as fines and being included in the list of untrustworthy persons. If the other party has the will and ability, it can apply to change the dependents.
"The exercise of the right of visitation should adhere to the principle of prudence. In order to facilitate the exercise of the right of visitation after a divorce, the judge must consider who is the child's supporter at the trial stage, explain the supporter's obligation to cooperate with the other party's visit, and take vaccinations in advance; in view of the exercise of visitation Power involves more emotional factors. You can try to get both parties to make relevant oaths in accordance with the Civil Code." Wang Huixing said.
Li Yunfei proposed that the main text of the legal document at the trial stage must be clear, which helps reduce the conflicts between the parties in the execution stage and facilitates the implementation of the work.
"For visitation rights dispute cases, the judge at the trial stage has a better understanding of both parties, and if necessary, can participate in the execution with the enforcement judge, which provides an opportunity for the proper implementation of visitation rights dispute cases."
In order to better enforce the visitation rights, Yan Tinghai suggested: give full play to the linkage enforcement mechanism, introduce social forces, strengthen publicity from ideological concepts, legal education and other links, and urge the parties to take the initiative; give full play to the advantages of the grassroots community grid, and establish social organizations to participate in cooperation Implementation mechanisms, such as mobilizing village houses and women’s federations, provide venues and personnel to allow the parties to sit down and talk in a relaxed environment, which will also appear more tender to minors.