This is a question asked in many divorce cases involving minors. According to the law, if the parents of a child who has reached the age of 2 cannot reach an agreement on the custody issue, the People's Court shall make a judgment based on the specific circumstances of both parties and in accordance with the principle that is most beneficial to the minor child. For children who are over 8 years old, their true wishes should be respected.
"Objectively speaking, for some children, we know as soon as we hear what they are telling the truth." Judge Zhang Ying of the Beijing Haidian District People's Court (hereinafter referred to as the "Haidian Court"), who has been engaged in juvenile trials for nearly 20 years, found that during the trial, some children said words that had been instilled by their parents.
One child said that he would not choose his father. The reasons are: "My dad never helps my mom wash the dishes" and "My dad never takes the initiative to lift the toilet lid when going to the toilet."
"This is more like a wife complaining about her husband than a child's evaluation of his father." Zhang Ying pointed out that the child obviously expressed the mother's thoughts.
Some children tell the judge exactly what one party said to slander the other party. A child once said: "My father told me that my mother wanted to strangle me to death when she was in confinement."
"Obviously, this cannot be his own memory." In Zhang Ying's view, many children will be influenced by both parents to a degree far beyond the imagination of adults. Although she tried every means to explain to the children before each inquiry, "I am here to help you today. This is a communication time exclusively for the two of us. I hope to hear what is in your heart. Whatever you say, I can keep it secret for you. You don't have to worry about your parents being unhappy if they hear it."
How to uncover the true wishes of minor children in divorce cases and make judgments based on the principle that is most beneficial to the minor children has become a common issue faced by juvenile trial judges.
Not long ago, during the second on-site exchange and mutual learning event on juvenile trials organized by the First Civil Tribunal of the Supreme People's Court, reporters learned about the new practices explored by juvenile trial judges from various places.
Understand the "code" of your heart
In the Women's and Children's Activity Center in Haidian District, Beijing, there is a room with a ceiling made in the shape of green leaves and surrounded by rainbow-colored furnishings, creating an overall childlike garden atmosphere. This is the rainbow station of the Haidian Court’s “Luyin Xiaozhu” care service base.
The judges hope that the soothing atmosphere here can effectively alleviate the children's tension and resistance and help them open up and bravely express their true wishes.
Here, Zhang Ying witnessed a repeated tug of war. In one of the cases she heard, after a couple divorced, the child was raised by the father. However, in just a few years, the two parties sued each other many times over the child. When it came into Zhang Ying's hands, this was already the third time her mother had sued to change custody rights.
"In order to truly understand what the child is thinking, I changed the location of the inquiry from the court to here." Zhang Ying said. With the help of the atmosphere of that space, the child finally confided.
The child said that during the first two lawsuits, he actually wanted to choose his mother. But his father has been "brainwashing" him - "I have worked so hard to pull you up and it's not easy. Now that your wings are hard, you can't fly out of my hand." In this regard, the child is very sad.
Zhang Ying comforted her: "Don't worry, I'm just here to help you. Let's find a solution together."
The child said helplessly that his father requested that what he said to the judge today should be reported to him in detail when he gets back. "If my father knew that I told you today that I chose my mother, he would continue to 'brainwash' me and ask me to record the video for the judge again."
"Seeing the child's sadness and disappointment from the bottom of his heart, I felt that as a judge, I must do something to respond to this precious trust." Zhang Ying and the child agreed on a "code of voice": if the child behaves in a specific way in the subsequent evidence, it means that this is the father's idea, not the child's true meaning.
According to the child's wishes, Zhang Ying supported the change of custody rights. As expected, the father appealed and submitted more new evidence. The second-instance judge carefully screened the evidence submitted by the father based on the circumstances of the case and dismissed the appeal.
Later, the child wrote a letter to Zhang Ying, thanking the judge for giving him courage and helping him "win" in the "war" with his father for many years.
"When I saw this letter, I had mixed feelings," Zhang Ying said. Using "war victory" to describe getting rid of her father's control made her realize another layer of things - there is sometimes a big gap between the image of the parents presented by the parties in court and the true appearance of their parents in the eyes of their children.
"If we want to truly get into the child's heart, we must observe the parents with the children's eyes and listen to the children with the parents' hearts." Zhang Ying said that in the juvenile court, what the judge has to do is not to make choices for the children, but to help them put down their guard and let their true voices have a chance to be heard.
"You are all my dearest and most beloved people."
"Dear Mom and Dad, you should be sitting opposite each other in court now, but now I can only sit in the classroom and accept the fact of your divorce. Unfortunately, I can't witness the happiness of your marriage, and I can't witness the end of your marriage now." Whenever such immature children's voices are heard, the Juvenile Family Court of Xicheng District People's Court of Beijing (hereinafter referred to as "Xicheng Court") will fall into silence for a moment.
This is a family short film produced by the Xicheng Court and will be played in the court whenever divorce cases involving minor children are heard. The script of the short film was written by the junior judge overnight after hearing a case involving a dispute over visitation rights.
"I want to believe that I came into this world with your love and the blessings of all my family... I want to believe that my custody must be a difficult choice for you, especially one of you who cannot see me and accompany me every day like before..." The child in the short film tells his inner thoughts.
"You are all my dearest and most beloved people. Please don't argue or attack each other in court, or at least don't tell me how much you hate each other, because that is a huge pain for me. If you ask me for my opinion, then I definitely want our family to be together forever." The men and women who had just been tense and tit-for-tat often fell silent in unison. Some lowered their heads in thought, and some stared at the TV screen in trance for a long time.
"What comes to their minds at this time must be their children, and the happy times they spent as parents with their children." Wang Wei, judge of the Juvenile Family Tribunal of Xicheng Court, said that he hopes that in this way, the parties will be guided to realize that they are not a couple who hate each other, but the parents of their children for life. "Divorce is not the end of the family, but a new starting point for both parties to let go of their burdens and fetters, change their roles and mentality, and raise children together. The breakdown of marriage is a thing of the past, and it will be the parents' lifelong mission to support their children's future with love together."
In addition to short films, this prompt will also land on paper. On April 16, 2024, in a divorce case heard in Xicheng Court, the judge sent a "Reminder Letter of Care for Minors" to both parties for the first time.
The couple has two daughters, aged 11 and 6. During the divorce process, the father picked up his youngest daughter from the nanny and took her to live with her out of town. When my father filed for divorce, he said confidently: "It was her cheating that led to the divorce. Judge, I have two daughters to raise. If it doesn't work out, I won't be able to take care of each of them."
Looking at the mother in the dock who was crying silently because she had not seen her little daughter for a long time, the judge did not rush to express his position. He first sent the Xicheng Court's care reminder letter to the two people and patiently explained the contents of the reminder letter. When he heard, "Please pay attention to your children's mental health and emotional needs during the divorce process, and listen to their opinions," my father was silent for a long time, and there were tears in the corners of his eyes.
Seizing this opportunity, the judge enlightened him step by step, starting from questions such as "How is my little daughter's life? Who does she usually play with? How does she go to school at home?" and gradually opened the father's heart. He slowly revealed his true feelings and asked the judge: "She is unhappy, what should I do?"
The judge learned that the two children grew up together. The younger daughter was unhappy in a strange country because she left her sister and mother; the older sister was also unhappy because she could not see her younger sister.
"In fact, you can have two daughters at the same time after divorce. It is not necessary to separate the two children." From the perspective of respecting the two children's wish to live together, the judge began to do the father's work. In the end, he agreed to return his youngest daughter to her mother, who would raise the two sisters directly and visit her regularly.
In addition, the Xicheng Court also designed a juvenile status assessment form. This form covers the minor's mental state, growth background, parenting ability, enforcement difficulties, judicial assistance, etc. The judge will customize the trial process based on this form, such as whether to carry out social supervision, psychological counseling, extended supervision, etc.
"A case is not finished until it is concluded. Judges can rest assured only when they see that the children's lives have been planned." Wang Wei said that for key cases, judges will also use the family return visit record form to track the implementation of the judgment documents. For those who need extended supervision, we will also carry out further work.
Use scientific methods to find a stable and healthy growth environment
Judges are trying to be more scientific in how to judge who will be given custody "in the best interest of the minor children."
In the Intermediate People's Court of Xingtai City, Hebei Province (hereinafter referred to as "Xingtai Intermediate Court"), a system called "Quantitative Assessment of Guardianship Ability of Dependents" has been officially implemented since March this year, breaking down the abstract guardianship ability into concrete assessment indicators.
Li Hong, president of the Juvenile Division of Xingtai Intermediate People's Court, told reporters from China Youth Daily and China Youth Daily that in traditional custody disputes, judges' judgment standards are often relatively general and tend to focus on blood relationships or economic conditions, while not paying enough attention to factors such as companionship and psychological care.
Nowadays, judges will use a "Quantitative Assessment Form for Custody Ability of Dependents" to "score" the parties from 5 dimensions and 13 indicators including daily life support, quality of educational companionship, and maintenance of physical and mental health - diet and nutrition, living environment, academic guidance, parent-child interaction, and psychological intervention. Each item has positive indicators to add points and negative indicators to subtract points. Among them, if there are abuse, abandonment, domestic violence, etc., the child will be directly "vetoed" and assessed as unsuitable for raising.
In the custody dispute case involving the 10-year-old boy Liu Xiaoqiang (pseudonym), this quantitative evaluation form played a key role in determining the outcome and ending the dispute. Liu Xiaoqiang's biological father passed away unexpectedly, and his biological mother Zhang Qian (pseudonym) and stepmother Zhang Ling (pseudonym) went to court to fight for his custody rights - one side is the biological mother who is related by blood, and the other side is the stepmother who has taken care of him for many years and has a sympathy for mother and son. In the court, the two sides were at war with each other.
Focusing on this case, Xingtai Intermediate People's Court launched a combined mechanism of "quantitative assessment + willingness consultation + family education guidance + psychological counseling". Police officers from the two levels of courts visited the home again and again and communicated over the phone; grassroots organizations, women's federation cadres, psychological counselors, and family education instructors also joined in one after another; the court also commissioned a family investigator to issue a detailed investigation report to provide reference for evaluation.
The evaluation conclusion shows that the stepmother Zhang Ling is better than the biological mother Zhang Qian in terms of continuous care, emotional responsiveness, stability of the family environment, and the maintenance of the existing attachment relationship with Liu Xiaoqiang. However, Zhang Qian has not actually raised the child directly before, and has not been able to provide evidence to prove that Zhang Ling has not fulfilled her support obligations and other statutory changes.
When the judge asked for her will, Liu Xiaoqiang held her stepmother's arm tightly and said, "I only have this mother, and I want to be with my mother." In the view of judge Zhang Xiangling, the reason why this will is clear and stable is that it is based on long-term actual care and continuous response to emotional needs.
For Zhang Qian, the judge and psychological counselor guided her to rationally let go of her confrontational mentality and respect the child's choice; for Zhang Ling, who suffered the pain of losing her husband and was anxious about the possible loss of custody rights, the court conducted psychological intervention; for Liu Xiaoqiang, who had a psychological shadow due to the loss of his father and this dispute, professional psychological counseling was followed up simultaneously.
These efforts effectively buffered conflicts. After the verdict was made, both Zhang Qian and Zhang Ling accepted the result calmly, leaving no resentment or dissatisfaction.
From its full implementation in March this year to the end of August, the two levels of courts in Xingtai City have applied this evaluation form in 521 cases involving child support. Data show that during this period, the rate of acquittal and dismissal of similar family disputes in the city's courts increased by 8.9% year-on-year.
"Quantitative evaluation uses a scientific method to discover who can provide a stable and healthy growth environment for children." Li Hong said that the evaluation form provides referees with solid factual and logical support, achieving an organic integration of legal principles and rationality.
"Evaluation should be thorough and substantial." Ma Junfeng, deputy director of Xingtai Intermediate People's Court, emphasized that formal and simplistic evaluations are strictly prohibited to ensure that the ratings are well-founded and well-reasoned. For guardians who are found to have shortcomings in their guardianship ability during the evaluation, the court will also issue a family education guidance order in accordance with the law, and strengthen follow-up visits to promote the substantive resolution of the problem.
"As the saying goes, 'It is difficult for an upright official to deal with household chores.' For our future, we need to sort out the myriad household chores and find the most suitable relative who is capable and able to take care of the minor child in the case. We need to spend energy, time and even money to do the work. Cai Jinfang, deputy chief judge of the First Civil Tribunal of the Supreme People's Court, said that these explorations by the People's Court have only one purpose, which is to effectively play the role of judicial functions, provide more adequate judicial protection for the protection of the rights and interests of minors with care, enthusiasm and love, promote the healthy growth of minors, and leave no child behind.
China Youth Daily·China Youth Daily reporter Liu Yan
