Exercising the right to visit, when the interests of the child are prioritized

The plaintiff Chen Mouyuan and the defendant Ning Moumou were dissatisfied with the feelings. The plaintiff filed a divorce lawsuit with the Yuzhou District People's Court of Yulin City on October 28, 2016. After the court found out that the court allowed the original and the defendant to divorce, the married daughter Chen Moumou was raised by the defendant Ning Moumou. The plaintiff Chen Moyuan paid the maintenance fee of 350 yuan to the defendant Ning Moumou before the 25th of each month.

After the judgment came into effect, the defendant refused to pay the child’s support after the child’s birth, did not pay the child’s support, and refused the plaintiff’s visit to the child. The plaintiff refused to visit the child. The child’s support is refused. The plaintiff complained to the court because he had failed to negotiate with the defendant about the child’s visit. The plaintiff requested the court: 1. The defendant was assisted by the plaintiff to exercise his visit to his daughter Chen Mou. The specific method is as follows: 1 Receive his daughter Chen Mou from the plaintiff twice a month for two days; 2 traditional festival Chen Mou returned to the plaintiff’s home. Including the Spring Festival, the Ching Ming Festival, the Dragon Boat Festival, the Mid-Autumn Festival, the National Day; 3 family events Chen Moumou returned to the plaintiff's home; 4 every summer vacation, Chen and the plaintiff lived for 30 days, the annual winter vacation Chen and the plaintiff lived 15 days Every year, Chen Moumou and the plaintiff live for 3 days. 2. The litigation fee in this case is borne by the defendant.

[referee results]

After the court heard that the couple who did not directly raise the child after the divorce had the right to visit the child. After the divorce of the original and defendant in the case, the married child Chen Moumou lived with the defendant Ning Moumou. The plaintiff Chen Moyuan enjoyed the right to visit the child. The defendant refused to pay the support fee on the grounds that the plaintiff did not pay the support, and deprived the plaintiff of the exercise. Visiting rights also violates the law. Therefore, the plaintiff’s request for visits to the children is established and the court supports them. However, the exercise of the right to visit not only considers the rights of the plaintiff, but also benefits the child’s physical and mental health and living habits. Comprehensively, the plaintiff’s time to visit the child is too frequent and too long, which affects the child’s daily life and study. The court integrates the child’s daily life habits and the original and defendant’s working hours, and the discretionary visit time is once a month, each time. Hours. In accordance with the provisions of Article 38 of the Marriage Law of the People's Republic of China, the following judgment was made: the plaintiff Chen Yuanyuan had the right to visit the married child Chen Moumou; the specific visit time was: 2:30 pm on the second Sunday of each month. At 5:30, you can visit the child Chen Moumou, and the defendant has the obligation to assist.

After the judgment of the first instance, the defendant appealed to the court of second instance, and the second instance upheld the judgment of the first instance.

[referee reason]

In this case, the plaintiff’s refusal to pay child support is conditional on the condition of satisfying his own visit. It is extremely selfish and wrong to pay the child’s support. As the father of the child, it is a legal obligation to pay the maintenance, and no condition should be attached. On the other hand, the plaintiff The maintenance payment has not been paid, and it is not completely unwilling to fulfill the obligation to raise the child. Whether to pay the maintenance fee cannot be the reason for preventing the father from visiting the child. For the child, parental love and maternal love are equally important. Whether or not to fulfill the obligation to support, in addition to paying the maintenance fee, visiting and accompanying the child is also a way of raising the child; the party who does not directly raise the child visits regularly and irregularly. Accompanied by children, it is also conducive to the healthy growth of children's physical and mental health. The defendant claimed that the plaintiff was suffering from cancer, was not conducive to visiting children, and was unable to take care of the child. The reason was not established. First of all, the plaintiff is suffering from cancer, not an infectious disease, so that the contact between the father and the daughter will not cause harm to the child's body. Secondly, if the father is unable to take care of the child's life due to illness, let the child take care of the sick father, and cultivate the child's sympathy from an early age. Heart, responsibility, and love are more effective in promoting the healthy growth of children's mind and body. The defendant also argued that the plaintiff had abused the vices of others and did not provide evidence to prove that the plaintiff did not approve it. At the same time, the defendant also had no evidence to prove that the plaintiff’s visit to the child would have adverse effects on the child. Therefore, the plaintiff requested to visit the child. The reason is established; as for the payment of maintenance payments, the defendant can be resolved through other means. The defendant has also passed the lawsuit and exercised the right to request the plaintiff Chen Yuanyuan to pay the child’s support, but the defendant refused the plaintiff’s failure to pay the maintenance. The plaintiff visited the child and the reason was not established.

As for the determination of the time of visit, it should be based on the physical and mental health of the child. Both the original and the defendant should consider it from the interests of the child and resolve it through consultation. According to the evidence provided by both parties and the court review, the child and the plaintiff have not established a deep father-female relationship for the child and the plaintiff for various reasons before the divorce. The two parties did not live together for several years after the divorce. The child has become unfamiliar, forcing a child of five or six years old to live in a strange environment, only to meet the needs of adults, not to give love to children, but to hurt. The court comprehensively records the work of the original and the defendant, the child's life, study status, and the child's acceptance level. The child is gradually familiar with and accepts the plaintiff's time. The plaintiff's second Sunday of the month is from 2:30 to 5:30. Can visit the child Chen Moumou, the defendant Ning Moumou for the health of the child, should actively fulfill the obligation of assistance. The specific visiting location is expected to be negotiated by both parties.

[law link]

Article 38 of the Marriage Law of the People's Republic of China states:

After the divorce, the parent who does not directly raise the child has the right to visit the child and the other has the obligation to assist. The method and time for exercising the right to visit shall be agreed by the parties; when the agreement is not met, the people's court shall make a judgment. If the father or mother visits the children, which is not conducive to the physical and mental health of the children, the people's court shall suspend the right to visit according to law; after the cause of the suspension disappears, the right to visit shall be resumed.