Possession is Nine-Tenths of the Law: Why Wife-Beaters Are Awarded Child Custody in China's Divorce Courts

Abstract

Domestic violence allegations are pervasive in divorce petitions filed by women seeking to divorce their husbands in China's courts. In China, formal legal protections against domestic violence are unimportant to the judges who decide the fates of women seeking their help. Women who flee marital violence often lose their children in the divorce process to the men who abused them because victims of domestic violence are far less likely to have physical possession of their children. When determining child custody, judges are supposed to consider the best interests of children. In practice, however, their impulse is to preserve the status quo. By tending to grant child custody to the parent who has physical possession of the child, judges reward the bad behaviour of perpetrators of domestic violence, punish victims of domestic violence who are forced to escape their abusers, and jeopardize the safety of the very women and children whose interests they are responsible for protecting.