Lawyers call for end to child-snatch­ing cus­tody tac­tics

China Daily (Hong Kong) - - CHINA - By REUTERS

Dai Xiaolei last saw her son in 2014, when he was 17 months old and liv­ing with her in-laws in Baod­ing, a city in He­bei prov­ince about 156 kilo­me­ters from Bei­jing.

Her mar­riage was crum­bling and, as re­la­tions de­te­ri­o­rated, she claims her hus­band’s fam­ily blocked her from tak­ing her son with her back to the cap­i­tal.

“The last time I saw my son was at the end of this al­ley. It’s like a fortress,” the 37-year-old said out­side her in-laws for­mer home.

Reuters was un­able to in­de­pen­dently ver­ify Dai’s claim that the fam­ily has blocked all at­tempts to see her son.

Her hus­band, Liu Jie, filed for di­vorce, ar­gu­ing that the mar­riage had fallen apart due to “con­flicts in char­ac­ter, ideas and liv­ing habits”, ac­cord­ing to court doc­u­ments. Dai pushed for cus­tody, but in April, a judge ruled that it was best for the boy’s phys­i­cal and men­tal health to stay with his fa­ther.

Liu, a movie stunt co­or­di­na­tor, and his par­ents de­clined to com­ment.

As China’s di­vorce rate rises, so too have calls by le­gal pro­fes­sion­als for new laws that would clamp down on ag­gres­sive tac­tics used by some par­ents to take or re­tain pos­ses­sion of a child to gain the up­per hand in cus­tody bat­tles.

Lawyers say judges tend to fa­vor the par­ent who al­ready has phys­i­cal pos­ses­sion of the child in or­der to avoid fur­ther dis­rup­tion to their life.

Dai ap­pealed the cus­tody rul­ing and lost. The court said the child’s liv­ing en­vi­ron­ment was rel­a­tively sta­ble and any change would not ben­e­fit his up­bring­ing.

There are no laws against one par­ent tak­ing sole pos- ses­sion of a child against the wishes of the other, lawyers say, re­flect­ing a tra­di­tional view that fam­ily con­flicts should han­dled pri­vately.

The Supreme Peo­ple’s Court de­clined to com­ment on spe­cific cases, but it said, “Max­i­miz­ing ben­e­fit to the child is the ba­sic prin­ci­ple by which cus­tody de­ci­sions are made.”

Joint cus­tody rare

China’s di­vorce rate more than tripled be­tween 2002 and 2015, reach­ing 2.8 per 1,000 peo­ple, ac­cord­ing to the Min­istry of Civil Af­fairs. This is higher than the most re­cent es­ti­mate for the Euro­pean Union (2.1 per 1,000 peo­ple in 2011) and is not far off the rate in the United States (3.2 in 2014).

While no of­fi­cial data is avail­able pub­licly, Yan Jun, a dis­trict court judge in Bei­jing, es­ti­mated that one par­ent will snatch a child from the other in 60 per­cent of cases in which both spouses are seek­ing cus­tody.

Un­der the law, par­ents are rarely granted joint cus­tody, as is the case in some coun­tries. In­stead, judges usu­ally give one par­ent “di­rect cus­tody”, of­ten pre­fer­ring to main­tain the sta­tus quo liv­ing ar­range­ment for a child aged 2 to 10.

A lawyer at a Bei­jing fam­ily law firm, who de­clined to be iden­ti­fied, said child­snatch­ing reg­u­larly takes place be­fore di­vorce pro­ceed­ings, which al­lows one par­ent to ar­gue the child has a sta­ble liv­ing en­vi­ron­ment.

Li Ying, a Bei­jing lawyer and ad­vo­cate for parental rights, said snatch­ing tac­tics should be pros­e­cuted when a new do­mes­tic vi­o­lence law is en­acted in March.

Un­der this law, beat­ings, ver­bal abuse and threat­en­ing be­hav­ior are con­sid­ered forms of do­mes­tic vi­o­lence. Some fam­ily law ex­perts have said pre­vent­ing a child from see­ing their mother or fa­ther, or vice versa, should also be con­sid­ered psy­cho­log­i­cal abuse.

Even when judges rule in their fa­vor, some moth­ers com­plain about a lack of en­force­ment and some­times take mat­ters into their own hands.

One, who did not want to be named be­cause her deal­ings with the courts are still on­go­ing, said she hired a pri­vate de­tec­tive who found her son liv­ing un­der a fake name with her ex-hus­band’s aunt in north­ern China.

The court had awarded her cus­tody, but when she com­plained months later that the or­der had not been en­forced, a court of­fi­cial was blunt.

“She told me: ‘Don’t just de­pend on the courts. Are you work­ing hard enough or are you just de­pend­ing on us to get your child back?’ ”

Max­i­miz­ing ben­e­fit to the child is the ba­sic prin­ci­ple by which cus­tody de­ci­sions are made.” Supreme Peo­ple’s Court A hundred sculp­tors cre­ate a piece of snow art 85 me­ters long and 32 me­ters tall in Changchun, Jilin prov­ince, on Thurs­day.

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