The Best Interests of the Child Principle in Residence Disputes after Parental Divorce in China

Abstract

Abstract This article analyses how the best interests of the child principle have been implemented in residence disputes following a parental divorce in China. In doing so, it will analyse the Chinese Marriage Law 2001 and the Specific Opinions on Child-upbringing Issues after Parental Divorce, drawing on an empirical study conducted by the author involving 300 litigated cases over residence disputes in courts. This study shows that the continuity of circumstances and the abilities of each of the parents are used as the primary and secondary criteria for residence judgments, respectively. And it appears that Chinese judges prefer certain easily ascertainable factors, eg parents’ financial ability and the continuity of circumstances, to other internally emotional factors, eg children’s emotional needs and attachments. In addition, a considerable number (69 per cent) of the judges tend to simplify the decision-making process by only considering a single factor alone, or even no specific factor. In view of this, several legislative proposals for the statutory provision of residence disputes in the forthcoming Chinese Civil Code are put forward.