Divorce Unavoidable…Who Shall Get the Custody of Kids?

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When divorce become unavoidable, then the tough questions come: how to split the family asset and who will get the Custody of the kids? Just like the story in the movie of Marriage Story starred by Scarlett Johansson, some couples probably are reasonable when handling the splitting of assets, but they all get crazy when it comes to the question: "Who shall get the custody of the kids?"

Let's see what the law says, then:

1. Is the kid is younger than 2 years old, usually the mum will get custody. However, if the dad can prove that any of the following situations exist, then the dad can get the custody:

(I) If the mum suffers from an infectious disease which lasts for a long time or any other serious disease and is no longer suitable to care for the child;

(II) The mother has the support and environment but fails to fulfill the childs support obligations, the father can request to have the child live with him; 

(III) Or, due to other reasons, it is inappropriate for the child to live with the mum.

2. For Kids that are over 2 years old, priority may be given to either party under any of the following circumstances:

(I) having accepted a sterilization operation or becoming sterile for any other reason;

(II) having been living with the child for a long period of time, and changing the living environment will have an obviously adverse impact on the healthy development of the child;

(III) having no other children while the other party has other children; or

(IV) beneficial for the child's growth if the child lives with him or her, while the other party suffers from an infectious disease that lasts for a long time or any other serious disease, or falls under the circumstance of being detrimental to the physical and mental health of the child, or is not suitable to live with the child.

3. Where the conditions for parents to support their child are basically the same, and both parents request to directly support the child, but the child has lived alone with his/her grandparents or maternal grandparents for many years, and the grandparents or maternal grandparents request and are able to help their child take care of the grandchild or maternal grandchild, such conditions may be taken into consideration as the priority in directly raising the child by the father or the mother.

4. For parent not living with the kid directly, he/she is entitled to visit the kid, the other party should provide cooperation.

Related regulations in Civil Code of the PRC:

Article 1084    The relationship between parents and children shall not come to an end with the Parents' divorce. After divorce, whether the children are directly 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, educate and protect their children.

After divorce, children under the age of two shall, in principle, be directly put in the custody of their mother. If the parents of a child who has reached the age of two fail to reach an agreement on the matter of the child's rearing, the people's court shall, in accordance with the actual conditions of both parties and on the principle of benefiting the minor child to the greatest extent, make a judgment. If a child has reached the age of eight, his or her real willingness shall be respected.

Article 1086    After divorce, the father or the mother who does not directly bring up the child shall have the right to visit his or her child, and the other party shall have the duty to cooperate.

The manner and time for exercising the right to visit a child shall be decided by the parties through consultation; if they fail to reach an agreement upon in this regard, the people's court shall make a judgment.

Where the visit to a child paid by the father or the mother is not conducive to the physical and mental health of the child, the people's court shall terminate such visit; after the cause of such termination disappears, such visit shall be resumed.

民法典相关规定：

第一千零八十四条　父母与子女间的关系，不因父母离婚而消除。离婚后，子女无论由父或者母直接抚养，仍是父母双方的子女。

离婚后，父母对于子女仍有抚养、教育、保护的权利和义务。

离婚后，不满两周岁的子女，以由母亲直接抚养为原则。已满两周岁的子女，父母双方对抚养问题协议不成的，由人民法院根据双方的具体情况，按照最有利于未成年子女的原则判决。子女已满八周岁的，应当尊重其真实意愿。

第一千零八十六条　离婚后，不直接抚养子女的父或者母，有探望子女的权利，另一方有协助的义务。

行使探望权利的方式、时间由当事人协议；协议不成的，由人民法院判决。

父或者母探望子女，不利于子女身心健康的，由人民法院依法中止探望；中止的事由消失后，应当恢复探望。