Child Custody Rules Regarding Children under the Age of Two
Paragraph 3 of Article 36 of the Marriage Law of the People's Republic of China states that: "After the divorce, for the children during the lactation period, the principle shall be that, the nursing mother shall be the custodian. The children after lactation period, the people's court shall decide according to the best interests of their children and the specific circumstances of both parties if an agreement regarding who shall be the custodian cannot be reached ".This article only establishes one basic principle of the custody: Without deviating from the principle of being guided by the best interests of the children, other factors such as the age of minor children, the affections of parents, the economic conditions of parents shall also be considered.
Therefore, in practice, it’s pretty certain that the children under the age of two shall stay with the mother unless there are some circumstances where it’s very obvious that the mother is truly not helping in raising the children. For example, if one of the following is true, the father can be the custodian:
1, The mother is suffering from persistent infectious diseases or other serious diseases which is not suitable for the children to live with the mother;
2, The mother has the ability to raise the children, but she refuses to raise the children and the father requests that the children live with him;
3, Other objective reasons that the children cannot live with the mother
Therefore, most of the time, unless there are some objective reasons that the children shall not live with the mother, the mother is the primary owner of the custodianship. If the father cannot provide evidence and convince the judge regarding why such right of the mother shall be deprived, the father is unlikely to be the custodian.
