International or cross-border marriages in China and with Chinese have been on steady rise in the past, and thus international or cross-border divorces have seen increase as well in China. We have been repeatedly approached by clients who wish to divorce in China with his or her spouse that is also a foreigner.
With regard to divorce (without regard to child custody), you can refer to other posts on this blog:
Can I Divorce in a China Court?
Easy married, hard divorced in China
Deal with the property in China after you get divorced in your home country
One of the fierce battles in a divorce war is the fight for child custody and the child visitation for the party that does not win the custody for their child or children. Now if you are caught in a divorce war in a China court, you need to know the rules related to awarding child custody under Chinese laws.
I. Child Custody
（1） Concept of Custody
Here it is kind of messy regarding children custody under Chinese laws. First of all, China Marriage Law doesn’t mention the word “custody” in any of its 51 articles. Instead, it uses the term “maintenance” or “support”, and when the court orders that the child lives with one spouse, it refers to that as awarding direct maintenance to that parent. In effect, it is largely correct to replace the word “maintenance” or “support” with “custody”.
Custody as a basic and fundamental institution in civil laws is now more clearly provided in China General Provisions of Civil Code (taking effect from October 1, 2017).
Parents are the statutory custodians for their minor children. Even upon divorce, both parents are still considered as custodians for the child even though the physical custody is awarded to one parent. This is indeed an old provision in the precedent version of China General Provisions of Civil Code, that has causing a lot of confusion in practice, as it doesn’t distinguish physical custody and legal custody toward the child. Sadly, the new General Provisions does not touch on child custody of divorced parents neither.
But now, China General Provisions of Civil Code allows qualified custodians to agree on the actual custody over a child, a new provision which in my opinion enables the divorced the parents to agree on specific matters of child custody by one spouse while not deprives the right to custody of the other.
In the meantime, ironically, while joint custody of child is the norm for divorced parents as mentioned above, it shall be noted that generally the parent having physical custody is the one that shall assume tort liability if the child has committed tortious conducts against others. In other words, joint custody does not result in joint liability, illogical and unfair. We have noted cases where the other parent who doesn’t have physical custody of the child is called to pay damages to others if the first-mentioned parent is not able to pay those damages alone.
(2) How to Obtain Custody in A Divorce
The general principle for courts to award custody to divorcing parents is to see who will be give the best benefits and best serve the child, taking into account various factors of family conditions. For example, the court will consider the availability of grandparents who are able to assist in the daily care of the child.
In judicial practice, courts tend not to break the status quo of the child’s life. For example, if the child has been living with one parent or grandparents for long, the court will be more likely to keep the current situation unless the other parent has much better conditions to offer, not just financially but also emotionally.
So for divorce cases involving fight for child custody, it is advisable for the parent to cultivate a favorable status quo for the child’s life before filing the divorce case.
II. Child Visitation
If one parent loses the fight for child custody in China court, he or she may wish to protect his or her visitation right to see the child regularly.
It is always a difficult situation to deal with child visitation when the parents are from two different countries, much depending on the post-divorce chemistry of the parents.
With regard to divorce with Chinese wife, if the child custody is granted to the wife, it is more likely that the ex-husband will have a tough time to visit the child as very often the Chinese wife is more difficult to deal with after divorce. To make things worse, China courts very often cannot help much after the divorce with regard to child visitation as they tend not to enforce such personal rights.
Hello, I am foreign and my female spouse is chinese, still living I China. She has two daughters with her ex-husband. We want to marry and then I want to take her and the girls to my country. The girls have been living with my spouse since divorce. The biological father didn’t visit nor regularly pay alimony, almost none. Still he has to give his approval so that my wife can apply for visa for the children but he refuses. Is there any legal way we can either get his approval or take him out of the equation entirely? She divorced him and he is in debts.
Thank you!
Hi Daniel, where do you come from? This is a tricky situation. How old are the two children? If the ex-husband has not paid child support fee or visited the children in the past, then it is effectively an abandonment. If you are already married to the mother, I think we may have a chance to sue to the China court to order the man to give consent or otherwise declares that the mother has the power to take the children out of China without the man’s consent. Of course, in the end, it is up to your immigration authority what document is satisfactory to them. I believe a court decision mandating the mother to make the sole decision of taking the children out of China will suffice for your country immigration department. In that case, if your wife is ready to sue her ex for this purpose, we are more than happy to help. You may continue our discussion via email from here.
Hello. My partner and I are not married and both are foreigners, but our child will be born here in China. In the baby’s birth certificate will be written his name as father. But after few months, i will go back to my country with the baby and my partner will stay in China. How will i get a custody papers before leaving China since it will be difficult to get paperworks (for example if i wanna move to Canada after years with the baby without the father) later on for the child while the parents aren’t living in the same country. Thanks.
When it comes to sole custody in canada, the focus is always on the child’s best interest. The parent granted sole custody has the right to make major decisions without the other parent’s input. However, this can sometimes lead to feelings of exclusion for the non-custodial parent. I believe it’s important to provide ample opportunities for the non-custodial parent to stay involved, as long as it doesn’t harm the child’s well-being. Legal advice is crucial in these cases. Do others think sole custody should be reconsidered more often to favor shared custody arrangements?
Globally, sole custody and joint custody are contraversial. You have Australia that has shifted away from joint custody for reason of domestic violence. I believe UK doesn’t use the term “custody” but “living with” term, which is much like what China courts will do. Is it the case that in Canada, courts still rule on sole custody? You have a point here, but joint custody could apparently be hotbed for a lot of troubles between divorced parents who are not on good terms.
Hi Jason,
I’m a British living in HK with an ex-wife who is a native Chinese living in Shenzhen with our 9y old daughter. We married and divorced in HK and both of us have HK residency. 2.5 yrs ago she abducted our daughter from HK to CN without my consent. I’ve been paying child support and trying to work things out with her without going to court until now. All I want is just regular and defined visitation to see my daughter. My ex has made it so difficult and since I applied for an updated joint custody order with the HK court 6 mos ago, she had brainwashed my daughter to hate me to the extent not wanting to see or talk to me. She’s now saying to the court it’s not her disallowing my access, it’s the daughter who doesn’t want to see me. My question is, while I’m still working on getting the HK court to approve my request, will I need to also obtain a court order from SZ to assist on the enforcement of my access? Do you believe the court and police in SZ will help enforce the court order from HK (assuming I get what I asked for?) Or, I’m wasting my time and money? Many thanks for your advice Jason.
Hi Paul, sorry for not replying to you earlier, I have been in Europe for the last two weeks. Given the bilateral arrangements between Hong Kong and the China Mainland, the HK court decision on visitation could be enforced in Shenzhen where your ex-wife lives. However, this law is still something new and we will be happy to help you to blaze the path as there may have not been prior precedent cases.
A person in China who is attempting to divorce. The partner is considered military. Will it be hard to get custody of the child? How long would the divorce and custody take to complete?
To divorce a military personnel in China, it is not easy. Once divorce is possible, then child custoy is a separate issue where best interests will be considered. Hard to tell how long the divorce process. Generally without consent of the military spouse, the other spouse cannot initiate divorce proceeding unless the military spouse has serious fault.
Hello Jason, I am an Indian woman married to a Chinese man and living in China for the past 7 years. We have a 5 year old child. I have mostly had a loveless , sexless relationship with my husband because he stopped being interested in me physically post childbirth. Even before that it was rare. He doesn’t even like talking so we have no communication. He never even pays attention to our son, rarely talks to him. He is a phone addict. It feels like he just married me to get a child to please his parents. I have been thinking about separating for years but I love my son and I worry about custody. I know I won’t get custody but is there any other option for a divorce? Like filing for divorce in India? My son was born in China with Chinese hokou. He has grandparents here who we visit sometimes but they live in very filthy way, I don’t know if this would help. My parents-in-law are also both alcoholics and chain smokers, drinking from breakfast to dinner. I worry that if I leave, my son would be in a bad hands, negligent father and old, alcoholic grandparents. I am constantly worried. Should I wait a few years in my miserable life here or file for divorce .
Ps: I work from home online so I make at least as much as my husband. Please help.
Hi Reena, sorry to hear that. why not just take your child out of China back into India? I am not sure whether you can file a divorce case in India, talk to an Indian family lawyer about that. After you take your son out of China, you can still divorce here in China if you wish to do that.
Thank you Jason. I took my son to India once, but that was after a lot of convincing. My parents-in-law are also very sensitive about this subject, my son is their only grand son. I might try to take him to India again but I don’t know what my husband and parents-in-law will do. They will probably follow me or might not even let me go this time. I have single handedly raised my son , without any help at all. But I am so miserable and lonely here that I am thinking of just abandoning my son and running away.
Hi Reena,it must be a hard decision to make to abandon your son in China, but if you do, people may understand it. Otherwise, you may have to use a bit skills to get your husband family less on alert, and then escape to India.
hi. my sister is married to a chinese man. they both live in china with their son who has chinese and south african passports. her husband actively abuses her and is now on dating websites too. he won’t give permission for her to leave with their son. is it possible for her to leave without his consent and then file for divorce in another country?
Absolutely, grandparents should be allowed to sue for visitation rights in Canada. The bond between grandparents and grandchildren is unique and valuable, and it’s crucial to prioritize the child’s relationship with their extended family. Legal avenues can help protect these important connections
Hello, I’m a single Chinese mother with a son aged 6. I divorced in China 5 years ago. I have obtained Canada permanent residence and now working in Canada. I would like to sponsor my son for it such that he can come to live with me. However, the immigration authorities of Canada require the consent from the child’s biological father to approve the application, unless I can prove that I have the sole custody. From my understanding, there is no such concept of “sole custody” in Chinese family law, it just says the child is raised by me directly. In fact, the child’s father seldom visits him since his birth and has been refusing to provide child support. My son is temporarily taken care of by my parents, but that’s definitely not a solution in the long run. Is there any way to prove that this I’m the sole custodian?
Hi Xiao, very sorry to hear that, this is a difficult situation faced by many single parent who wishes to take their child out of China but was not able to do so only because of the non-cooperation by the exes.
By the way, where is your son living now? where is your ex living?
Despite that there is no effective legal option to tackle the problem, someone has to stand up and fight for this right. Depends where we are going to file a case for you, we may be willing to help you to test the ground in China courts and see whehter you can have a court order to allow you to take your child out of China without the written consent of the other party. We won’t charge much upfront and will be willing to fight with you till the end, no matter what the outcome will be.
Of course, to solve your problem, it is best to negotiate and settle with your ex and get his consent without going to court.
Let us know if you do need our further help.
Hi Jason, thank you so much for your reply!
My son is currently studying in Hong Kong, and my ex is living in Chongqing, the city where I lived before and divorced. I consulted another lawyer before, he said it’s almost impossible for the court to issue such an order to allow me to take the child out of the country. Do you know any examples that have successfully obtained such a court order? My ex said firmly that he would never give this consent, he just refuses to have any talk or negotiate.
Hi Xiao, no, there has been no such a successful precedent case, and that is why we need to blaze the path for yourself and for others in similar situations. Of course, I am not even sure of getting this case filed with the court. Again, someone has to be the first to eat the crab. After all, you may not have any other possible option in the end.
Hi im filipino citizen I born my son in philippine his father was chinese citizen and my son had a Filipino passport .were here in china to visit were not married they dont want to give back my son can i get the full costudy? My son didnt register in china hoku
Honestly speaking, if you take the case to court, you may have a chance to take back your child but given your personal situation, it is gonna be difficult. To get back your son, you may have to resort to non-legal option: agreed to get married in China or otherwise win their trust to leave your son in China for a better future (at least on the surface), and the grab an opportunity later on to take your son away from China. This is gonna be a drama to roll out.
Hi im a pilipino and im here in china with my son im not married and my son is pilipino citizen and no any record or id in china is possible to get my son costudy and follow the law on my country?
Is the father a Chinese citizen? How did you get your son Philipino passport? IF the son was born in China with a Chinese father, he should be a Chinese citizen as well. Have you ever tried to leave China to Philippine with your kid? How old is the child? If it is very young, say below 2 years old, you will have a good chance to get the right of care and control or physical custody (but not legal custody) over your son.
hi, I’m going to get married to a Chinese man and move to China. my question is how can I protect myself so I won’t have the same issue like these stories here. if I divorce I want to take the kids. should I not get legally married in china and should my kids get my nationality? please give me some advice because he said Chinese nationality and if we divorce he takes the kids because I can’t take care of them financially. also he wants his kids to b chinese and get proper Chinese education.
please some advice!
Woman to woman, Can I suggest not to get married? From what I can sense, he is going to not accept your culture or ways of raising children or food etc, even if he promises that now. Forget about the custody. Don’t do what I did and ruin your life
Hi. I’m married 5yrs to a Chinese national woman who has a 14yr old daughter with a Chinese man she is divorced from. They immigrated from China on fiancé visas and both now, finally, have official green cards. We live in the US as a family. The ex-husband still lives in China and has no contact with his daughter in these last 5 years. I’d like to adopt the daughter here in the US. Both wife and daughter want this as well. What needs to happen in order for the ex-husband to terminate parental rights and allow this adoption to take place?
Thanks.
Hi Jim, would reply to your email separately, as adoption law is not widely practiced by our team, though we did touch on this in the past. We will get back to you later.
Good afternoon! my Chinese friend is going to divorce his wife and she will take the custody. Is he obliged by the law to accompany their son once in a while or payin child support is enough? He said he can be sued by his wife if he doesn’t visit his kid, 8 years old boy.
no, Maria, if the care and control of their child is given to the wife, then he as a father has the right to visitation/access to his son. He is not mandatorily required to spend time with his son, but he is obligated to pay child support fee unless his wife doesn’t require him to pay.
Hello I am Queenie. I have a Chinese boyfriend we are not married yet but we’ve been living together in the Philippines for 4 years.He died last 2022 in a vehicle accident. We had 2 kids.The eldest is 2 years old and was born in the Philippines (have Chinese Passport)and the other one is 2 months old and was born here in China (his father died when I was pregnant with him). We are currently in China now living with my boyfriend’s family. We want the kids to have a hukou. But during the processing they said that I need to sign a waiver of Giving up of Custody of my two kids to his parents, in that way my kids will be able to get a hukou. How will it affect my rights as their mother since I am a foreigner and not married with their deceased father?
difficult situation indeed. But I don’t think it has anything to do with custody to get the kids registered for Hukou, it is most likely the tactic the grandparents are trying to keep the kids in China. You shall be ready to fight for inheritance of estates of your boyfriend on behalf of the two kids. The kids are entitled to estates left by their father but on equal footing wtih the grandparents.
hello.
I am have a son 9 months with a Chinese man. we are not married. we live together. my son has Chinese passport and hukou. I want to end the relationship. but I want to prepare for the custody. how can I win the custody. I am on a working visa.
Jill, if you have fight for the custody in China, then it is very likely that you may lose the battle given that as a foreigner you may not have much advantage of raising this child on your own without support from your husband family. However, if you decide to leave China, then you probably need to do nothing to end the relationship, but still you may sue him for child support. A difficult situation for you.
Hi. I am from Pakistan and i am married to a man who is chinese. He was already married in China and later on moved to Pakistan for a job and married me. We have a daughter who is a year old now. And my husband has 3 kids from his 1st wife. Now the wife has gone back to China and involved our husband in a case probably bigamy. I wanna know if my husband is safe overseas or not. In case of divorce who is more likely to get custody of the kids and how will the assets be divided. I would really appreciate some enlightenment on these questions. Regards,
hi there, your husband surely committed bigamy if his Chinese wife reported his situation to China police. If he was imprisoned, his wife will surely get custody of their kids, and division of marital property will still roughly half and half.
Hello Jason 🙂 i want to ask if it possible to report a bigamy in china if the Chinese man married to other country ??
here’s my Sister situation.
3days ago we found out that her husband was already married in china and have 1child there. now that Chinese Wife doesn’t know anything that her husband was already married to my sister but still communicate with each other..
my sister is married 2years and they have 1daughter 3years old now..
my sister doesn’t know how to do now.
you just want to send him into jail or work out a plan to get more financial support in case of divorce? Yes, you can report bigamy to China police.
Hello. I am Portuguese and my ex is from Ukraine. We never got married but he have a 2 year old child together. We have decided to part ways, however we are not able to agree on custody terms. She wants me to have him only for a day and I want to be able to keep him for 3 days of the week. Or even one week with me, one week with her. She claims that it’s what’s best for the my son, however I am not sure that is the case. I suggested hiring a professional that can advises on the mental and emotional damages that this can cause to the child to better understand if in fact would be detrimental to my son to stay with me for 3 days as she says it will be but she refuses to do that. This is what leads me to believe that she is not being honest about her motives. I understand that in China and mostly everywhere, for children of this age usually the mother gets custody. Since my son has both a Portuguese and a Ukrainian passport, I am wondering what is the best way to proceed and what are my chances? Thank you in advance.
hi Marcio, where do you live? In China, if not, your case has nothing to do with China, and Chinese laws are irrelevant to your issues. Please consult a family lawyer in the place where you live. But if you and your ex are living within China, then you are right, most likely your wife will get custody and direct care and control of your son. Your visitation rights may not be well protected under China laws, better to negotiate a better term instead of leaving the matter to China courts.
Hi, I’m from the Philippines. I fought with my husband today and he threatened me to take my kids away from me and divorce me. We’re living here for 8 years. I’m holding a spouse visa. Will I be able to get another visa after the divorce? Since I’m holing spouse visa, I’m not allowed to work here legally so I’m not financially stable. Do I still have a chance to get the custody?
If divorce is granted, that will definitely affect your spousal visa, thus you shall prepare for a new visa. If you have more than one kids, it is possible that the court may grant custody of one child to you, though not guaranteed.
Hello Jason!
I would like to ask my husband file a divorce but then both of us didn’t agree of what we want especially about our baby so my husband withdraw the divorce case and i ask the judge if i still have the right of my baby and the judge said i still have because I’m the mother and we’re still married. But the problem is i want to get my baby back with me going to the Philippines but she’s a chinese passport holder and already registered to their hukou. What should i do Jason? Can i still get my baby back with me?
Hi – I am a foreigner was working in China and had a baby with a Chinese woman out of wedlock (I was married). I am estranged with the child but have been providing financial support. Lately, the mother wants to put the child to a very expensive school which is difficult to support. The mother threatened to go to courts and just want to know how the “maintenance” “support” is calculated or how the courts address this. Thank you.
Hi there, in that case, the courts in China won’t necessarily support her claim for such expensive schools. Generally, courts support claims for maintenance for public school, unless both parents agree on private schools.
My Chinese wife and the biological father of my stepdaughter were never married, and the father abandoned my wife and stepdaughter when my stepdaughter was six months old.
My stepdaughter’s American father never registered my stepdaughter with a U.S. consulate, so my stepdaughter is a Chinese citizen.
I am a U.S. citizen, and I have a job offer in Germany.
I would like to take my wife and stepdaughter to Germany, but the German consulate requires that my wife prove that she has sole custody or “maintenance” of my stepdaughter.
How can my wife officially get sole custody or “maintenance” of my stepdaughter in China?
Tom，it is a tricky situation and we may not be able to help your wife unless she is determined to go through all the trouble ahead. Legally speaking, she needs to file a case in China court to strip the child’s father’s custody due to abandonment and in the meantime ask the china court to affirm her sole custody over the child. In China, parents are assumed to be legal guardians for their children, no matter parents are married or not, unless duly deprived of that right in court.
since the American father disappeared, the legal proceeding could be very lengthy. You may not be able to wait that long.
Good day, Sir. I am a filipina from the Philippines. I would like to ask about my rights to my son in China right now. My ex-chinese boyfriend and my son went home in China last year even though he forced me to agree to his decision. We are not married. Because of his sudden decision to bring the child, I was forced to agree. Because I love them both. At that time, our relationship was still okay. Even though he used to beat me then, slapped me in front of my sister, he will hit me and or punch me. So, the result was that I had bruises on my body. I never reported to others because I love him. All I have are videos and pictures of the bruises on my body. His reason was that hukou registration is difficult but until now, the child has not been registered. I agreed with his decision because I thought he could be trusted. And now, he doesn’t want me to be with our 2 years old son anymore because he has found a new girlfriend and to be my son’s future stepmom. He has been saying a lot of things that are not good. Insults, etc. Am I really going to lose my rights as a mom to my son? In China, what is the rights of a stepmom to her stepchild? Can I still sue him for beating me even though he is in China right now? Is there no hope of getting my son back so I can be with him?
I’m under too much stress now, not just stress but depression because of what he did and I can’t accept that he doesn’t want me to be with my son anymore because he cheated on me. As a mom, it hurts so much to be away from the child. I thought it would be okay that I agreed with his decision but it wasn’t. What should I do or what can I do here in the Philippines so that I can be with my son in China right now? Thank you so much for the time to respond and have a great day, sir.
sorry， Marie, it will be very hard for you to take legal action in China. if you were in China and close to where they live, then you may sue to have your visitation right enforced. but to take back your son to Philippines, i guess it is not practically possible, unless you can somehow sneak back to Philippines without knowledge of your boyfriend.
Hi Sir, I’m Niza from Philippines, i been illegally stay in China for 8 years but this July i got my family visa,but before that i met a guy and had a baby she is now 4 years old ,he promised everything but he didn’t execute even one of his promise and now my baby taking care of by her in-law in the province, my daughter doesn’t have any paper now like hokou,and he didn’t go to register the baby, we are not married to the father of my child, i married now to the other Chinese guy.Just wanna ask how can i get the full custody of my child.
Niza, it is difficult for you to take full custody when the child is being taken care of by your boyfriend family for long. But you at least have a right of access/visitation to your child. If you can negotiate a better deal, then try to negotiate.
I am foreigner student in China, my husband is Chinese, we have one baby 10 months old, i just want to know how’s about child custody? Can I bring my baby to my home country if we divorced?
well, you can take your baby to your home country if you can, and then divorce there. If you divorce in China, for a 10 month baby, you will get custody, but you may still not be able to leave China if baby passport is retained by your husband. So apply a bit of tactic in your divorcing battle, making sure you divorce in the right place.
Hi, my wife had an affair with a Chinese man and had a baby. That man is married in China. A baby was born through this affair, but he wants to have nothing to do with the baby. The baby got its UK passport, but the officials won’t let my her baby leave the country without permission from the biological father. She is busy asking him for permission. Is there a legal process if he refuses?
Tough question. I believe it may take a legal action to take over the custody of child from that man. Much depends on what is required at UK borders to allow the baby to go into UK. I understand that UK is a party to International Child Abduction requiring both parents consent on international travel. Given their unique situation, if the baby is awarded in the sole custody of your wife, then this baby may be allowed into UK.
Thanks. So a court in China can award sole custody to the mother? Then she would unlikely need any permission from the biological father for her child to travel. Thanks again, much appreciated.
hi Jess, in term of getting full custody, your best course of action is to take the child to China, and file a divorce here. You will surely get custody. However, in that case, you may lose financially if your marital assets are all situated in USA. In any case, if you wish to fight, then prepare as much as you can before you come back to China. By the way, where is your hometown in China? Please respond via email from now on for sake of your privacy.
Can I bring my child in Philippine if ever me and my husband decided to split ?I am filipina and were married in Philippine.Currently I am in China and my child was born here in China.Thank you!Hope can get answers.
if your child has the right travel documents (passport and visa), you can take your child into Philippine, but whether Philippine will allow you to get in, that is a question to be answered by a Philippine lawyer.
Hi Jason, I have a niece got a baby from a Chinese man in the Philippines after that he ran way back to China living his ex girlfriend with a baby. After her baby born at least 8 month old my niece was be friendly with another Chinese man who works in the Philippines through social media. For all I knew they met each other and this Chinese man was so lovely and he consider this baby as his own child. He gave support to the baby and his girl friend financially and he rented an apartment in Manila. for them to stay together. He proposed to marry her and wanting to see his mother in China to get married there. My question is how safe is my niece and her baby? He’s not the father although he loves the baby like his own. If he gets married to a Philippines citizenship in China is he automatically became a Philippines permanent residence and vise versa? What happen to my niece and her baby?
hi Ernie, I am not in a position to answer your question about Philippine PR. I cannot tell how safe your niece will be much depending on the personality of her boyfriend. It takes a noble character for anyone to treat others’ babies as their own. Hope your niece meets the right person. Probably you should check out the background of this man to see whether he is married already in China and his work history in Manila.
Hi, I am a filipina and got married here in Philippines with a chinese man. We have a 4 year old daughter. She is born here and she has a Philippine passport. The three of us are currently living in Philippines. The parents of my husband wanted to look after my child in China since she is the only granddaughter they have. I told my husband that I won’t let his parents to look after my child in China. So now, because of my fear, I don’t want us (me and my daughter) to go to China anymore to visit her grandparents. What if, when we get there and my husband will betray me and accepts his parents’ request and they gonna take away my daughter? . What can I do?
Does my husband can really make decision regarding our child’s living even against my will when we visit his parents in China? Is it really possible or Am I just getting paranoid? If not, what should I do to have assurance?
I used to help a Filipino lady dealing with her marriage in China which has similar situation with yours. If you don’t want to lose your daughter and you don’t trust your husband, then don’t get your child into China. You can sponsor the grandparents to visit the Child in Philippines. There is no guarantee that you won’t lose your child once you come to China. Much depends on your relationship with your husband, and if he is reasonable, then he should not aid his parents hijacking the child in China without uniting with their mom.
He is really trying his best to convince me to go to China when pandemic is gone. He said, we’ll be only using a family visit visa and after one week we’ll be back home. But still I’m unconvinced. I stand my decision not to go because I am afraid. He never agreed with my decision because he said it is bad that the grandparents will visit the granddaughter. He always told me about “filial piety”. He always follow his mother’s decision. And now our little family that we build will be broke up. My daughter will grow up without a father. He would rather accept this than accepting my decision. I was really having a difficult time dealing with my chinese husband
You have to gauge your situation yourself. But it is sad that you two cannot agree on this. But I agree that your little family is more important to keep together than the larger family.
Hi! I am filipina staying in Mozambique and my ex is a Chinese. He decided for not coming back to Mozambique anymore. I have 1 son from him and I’m 8 months pregnant but he stop supporting my child knowing that I’m pregnant and I’m about to give birth. He used to convinced me to send my son in China to give a good life there but I never accepted his request because I found out that he is married.
Hi I’m british and I am married and living in china. My daughter is 16 months old. I want a divorce but my husband won’t agree and knows that if before two I will get custody. He keeps threatening to take her. I don’t know how to approach the situation
Georgia, i have helped quite a few foreign moms in China in their divorce battle, please send me more information via email. we will further discuss the matter from there.
Hi this is arym, I am a filipina and got married here in Philippines with a chinese man. We have a 4 year old daughter. She is born here and she has a Philippine passport. The three of us are currently living in Philippines. The parents of my husband wanted to look after my child in China since she is the only granddaughter they have. I told my husband that I won’t let his parents to look after my child in China. So now, because of my fear, I don’t want us (me and my daughter) to go to China anymore to visit her grandparents. What if, when we get there and my husband will betray me and accepts his parents’ request and they gonna take away my daughter? . What can I do?
Does my husband can really make decision regarding our child’s living even against my will when we visit his parents in China? Is it really possible or Am I just getting paranoid? If not, what should I do to have assurance? Your answer is a very big help to me. Thank you.
Hi. I am Armenian living with my 3 month old.son in Armenia. I am planningto apply for divorce in my country (we got married in China).My husband is here and agrees to get divorce.
Does China accept the custody decision made by the foreign court?
Can my ex husband apply to Chinese court to get child custody when.we visit him and his parents in China?
My child.was born in Armenia and has Armenian citizenship.
China court won’t accept custody decision made by foreign courts. So it is possible that he may apply to China court to change custody. On The other hand, since the child is still very young, china courts will definitely award custody to you not him. But after the child is older, it possible that China court awards custody to him in consideration of then conditions. I strongly suggest that you take precautions when you bring the child into China.
Thanks a lot. Could you also clarify the notion of getting divorced via.wechat (who handles it and do they give an official certifcate? )
Does it include child custody matters or it’s a seperate case?
Thank you for making all of this information available, it was very helpful to read. I’m a foreigner in Beijing, about to divorce in court with my Chinese wife. For a long time we have tried to work out an agreement. But we were not able to do that so now the only option is to go to court without an agreement. I’m already given up the idea of custody, I will accept to pay child support according to my salary. However, since I have been the primary caretaker during the uprising of our daughter and still is taking her 50% of the time. I would still want to have a visitation right thats 50% of the time, or not less then 40%. Do you think there is any way for me to get half of the time with my daughter in China? Also, by referring to how the arrangement have been in the past.
Kind regards
Johannes
Hi Johannes，it is possible that you get half of the time for visitation. However in light of reality, this may not practical, esp when your daughter goes to school and you cannot enjoy the half of her time if her custody is awarded to your wife. In practice, another layer of difficulty is the enforcement of visitation right, that has been a problem in China for decades. In other words, China judiciary system has not developed a sound regime to protect and enforce visitation right if the other party breaches the court judgment.
Hello,
I am happy to see some clear information about Chinese law. Personally, I have a situation that is similar to this: I am a foreign (European) man, and my wife is Chinese citizen. My wife has previously been married with a Chinese man, and they have one 5-year old child. I consider the child to be now my step-son. The child has always been living with my wife, even before we got married, and not living with his biological father. Now we are joined together as a family by marriage, but we are not currently living together as we are arranging residence permits for my wife and my step-son. Now that I am married with my Chinese wife, do I have legal custody and guardianship of the child? Am I legally allowed to make decisions regarding the child’s future, such as schools, medication, health, etc? Or is there some requirement to get written consent from the ex-husband (biological father) to give me full guardianship privileges? Of course my wife has the full custody already, as she is the biological mother.
Kind regards, Pete
Pete, interesting question. The laws regarding custody over step-children are not clear in China. In your case, since your wife has custody over the child and if the child is living with you in Europe, why do you need legal custody over the step-son? Also i believe once you all live in Europe outsdie China for long, it will be the local law that dictates the relationship between you and the step son instead of Chinese laws.
I am American citizen and my soon to be ex husband is from China. We married in the US. He filed divorce accusing me of violence because he wanted a US green card. After he filed divorce I later found out I’m pregnant. My lawyer is asking him for child support and I think he might go back to China to avoid child support in the US. Would there still be a way to make him pay child support if he was back in China? Or will it be a time and money consuming to go that route?
You will have to sue him in China in order to get child support from him if he comes back to China and live in China. Well, it is not really easy for you to achieve your goal.
Hello, can i Have the custody of My son 3.5 years old chinese , i am not maried whit mother of My son and She cant suport financial to grow up My son ( in the Last 3 years i support all the rent ,pay bill of electricity water , food Every day toys , clothes shoes , milk powder . Medicine , Kindergarden fee ) and small thinks fee about My son . What shouid i do legal to have the coustody of My son .
So you must be at odds with your girlfriend? Are you registered as the baby’s father on his birth certificate? Where are your son and wife and you living now?
Thank you so much for your blog and resources, your service is great and much appreciated. I am an American-born Chinese with US Citizenship and my wife is Mainland Chinese with Hukou). We have a 3-year-old daughter together. We both have assets in China, Hong Kong, and America. The child was born in Shenzhen and is a dual citizen of China and the USA (meaning we have an American passport for her, and we never told l the Chinese authorities we obtained this). In China, she has the Hukou, ID card and Chinese Passport. In America, she is a full US Citizen. We enter/exit our respective countries on each of those documents. We have a special US visa in her Chinese passport allowing her to exit China.
As things are presumably getting worse with between my wife and I, what is to stop me from taking our daughter to America without her consent and lodging divorce proceedings in America instead of in China? While the primary residence of the child is in China (about 8 months of the year), the Child also spends a considerable amount of time in America since her birth. There are no live-in grandparents, we have a full-time Nanny in China, we are both working professionals that give us the flexibility to travel.
So what laws in China, if any, would prevent me from simply not returning to China on our next trip to America? As you may know, China is not a party to the Hague Convention of Child abduction, US courts tend to have better agreements for custody and division of marital property. And since China is not a party to the Hague Convention, that could mean my wife could simply vanish with our daughter (the same way I could also vanish with her in America).
In America, there are kidnapping laws, but it seems in China there are no such laws. Could you please let us know if this is legally possible in China? I understand there are residency requirements in America that could be challenged, which could complicate any divorce proceeding with jurisdictional issues, however, I need to make sure my rights are covered in China as well and I would not be doing anything illegal in this process.
Hi Dave, China is not a party to Hague Child Abduction Convention. On the one hand, if the child is kept in China, or even taken to China without your consent, you may have hard time to take the child back. On the other hand, if you take the child to the USA, your wife won’t be able to rely on that convention to request return of the child to China neither. However, USA has better law in protecting custodian right of the mother, in this regard, talk to an American lawyer for more. Nothing will prevent you from returning to China. While you talk about better arrangement in the USA, it may backfire you in regard of financial splitting. You should read another post on my blog regarding jurisdiction strategy on cross-border divorce. For your privacy reason, please write to me via emails for more discussion.
Hi Jason, I’m a mom of twin girls, who are 4 years old. I am a foreigner and my husband is shanghainese. We’ve been separated for over a year. We’ve both agreed it’s best for the children that they are raised in Shanghai. I’m apparently amidst a divorce case, from what I know the divorce isn’t quite final as yet. I haven’t demanded any finances or assets from him as yet (For certain reasons) One of the children has been granted to me and the other to my husband as per the court. The kids however are currently Both living with my mother-in-law. This was the agreement. I would like to take custody of the children, however I am unable to legally work in China because of my visa status, being a family visa. Is it possible for me to gain custody of both kids and Receive child support? What about children’s school fees? Would he Financially be obligated to pay for both or just for the one, if they’re taken care by me? Bearing in mind I cannot work to support even for just one of my kids? And it’s not like I can get a work visa because I don’t have a degree to do so. Thanking you in advance for your reply
If the court has ruled in the custody of the children already, then follow the judgement unless the other party agrees on you taking custody over both children. Generally parents are both obligated to support the children though not necessarily equally. Given your situation of no work in China, I don’t see how you can convince the judge that the kids are best to be with you. However, I don’t see why you give up your right on claiming half or greater share of your community property for the reason that his family are raising both kids?
Hi Jason,
I am a foreigner and have a Chinese mistress (no marriage with her). We would like to make a baby born in China and I will sign a contract with her to provide for the baby’s expenses.
Can my mistress sue me in court and demand more money? I am probably providing 5% of my salary which is sufficient for her and baby (agreed in contract) but I am afraid she would be greedy and demand more and sue me in court. Will the courts rule against me using the 20-30% rule for divorce cases, or honour my initial contract?
Hi Joey, for child’s support fee, yes she will be able to get the child to sue you for more if the current 5% is not enough. There is no contract that can legally bar the child from asking for more. Given the today’s wide gap of people’s income, the 20-30% rate is no longer a standard, and the courts will usually look into the actual life expenses for the child.
Dear Jason
Me Ukrainian and my wife is Chinese we have 6 years old son. We’ve been married for 8 years and now she want to break up and take our son with her.
Two weeks ago she went on her business trip and then returned to China for Chinese New Year to visit her mother. After 10 days of communication we had a verbal fight over phone then she start to ignore me and my calls asking to leave her alone. After few more days she said she won’t come back to Ukraine because she doesn’t like living there etc. She said it will be better for us if we live separate. I have asked her are you leaving us what about our family and our son. She replied you can bring our son to China any time. Of course I have tried all my best to clear what is happened and why so radical change. I said we have family and kid we have to stay strong and keep fighting for our marriage. That it will not be good for our son if we go separate etc. She just said she is tired of fights and she doesn’t like living in Ukraine, I have told her that all couples fight or have arguments more or less, it’s not pleasant but considered as a normal thing for couples to fight from time to time. Any way, I’m afraid she gonna apply for divorce. We were married in china, our son was born in China. But in his 6 month age we agreed to sign him as Ukrainian. So he has Ukraine citizenship and ID.
I want to leave my son with me here in Ukraine, he is going to school here, taking musical classes, etc. his first language is English with Russian and Ukraine as second and Chinese he only understand but cannot speak at all. I have a house and business in Ukraine with high income and my mother lives with us. I’m sending him to school by myself, taking him back home, play with him, educate him. He has a big family of relatives here with many cousins etc. Back in China we have nothing. My wife back to Shanghai but her hukou is from another province, she has no her own property nor her parents. So in Shanghai it will be only rented place. She has not been working for the past 7 years only part time things working on her computer from home. Because her English is not good as mine so I was taking care of his speaking and education and of course I was financing our family all the years. We have traveled the world as a family we have many evidence of that.
She is not taking a good care of our son even she wants to divorce which I cannot change her mind I will not be fine if our son will stay with her. She is a typical Chinese girl spends most of her time on phone even she will find a job in Shanghai I’m afraid she will not spend much time on our son because of long hours of work in China. She has her mother in another city that she might ask to help with our son. But it means she has to make money enough for 3 people including her mother. And without own property what if she lose her job she might not have money to continue paying to support all of them.
My question is do I have more chances to take a custody of our son?
Thank you
Alexander, is your son now living with you in Ukraine? if yes, sure you have a good chance to take over custody of your son. However it seems that you are not the party to initiate the divorce proceeding in China. If you are ready to move forward, then let me know. we are more than happy to help.
Hi, my name is Mera
This problem about my brother. We are chinese resident. He is divorce with his wife and want to get the custody of his son. The situation is, the son now 3years old, living with his mother and the son is on the wife’s hukou, while my brother is working at another country (only back to chine once or twice a year) and barely communicate with his son.
The process already 2years but still no result. Is there any possibility to win the custody? Or my brother will never get divorce until his son 17years old?
Thanks
Mera，”he is divorce with his wife”? has divorced already or still in the process of divorcing? He can always divorce his wife no matter who gets custody of the child. In his situation, i believe he doesn’t have a strong case to win custody given his working outside of China.
Sorry, I mean still in the process of divorcing. Seems the court can’t give any decision until now. Still hoping can get the child custody. Thank you Sir
Hi Jason. I am a westerner living in China. My wife is chinese. I have evidence that she is committing adultery now. She takes 95% of my salary each month to take care of the family. She controls the finances but spends almost no time with our 5 year old son. I cook for him, help to educate him, I do everything for him. But she controls the money. What will the the court do if I provide evidence of her adultery? Will they likely give her custody due to the financial issue and the fact the home is in my name. Also my son’s passport is from my home country. Thank you in advance
*I meant to say the home is in HER name, not mine
why do you allow her to take 95% of your salary while you are doing a lot of homework? Adultery in China doesnot mean too much in court, but just an evidence to prove the breakdown of the relationship. As for custody, if you have income, and have been taking care of your son, coupled with her lack of devotion to your son, you have a good chance, though not guaranteed.
Hi, I got divorced in China 9 years ago and had the court order by People’s Court stated that “My child will live with me until she is 18 years old”, which the judge told me means I have the full custody. However, recently when I applied the US passport for my daughter in the United States, they didn’t accept this as the prove of “sole legal custody”. How can I prove it? Thanks a lot!
This is a problem we have encountered frequently and have no good solution. First of all, in China court judgments, generally we don’t use the word “custody” but “living with”, denoting physical custody indeed. You may have to work out a solution with your ex-husband to get his consent on your daughter naturalization.
Hello I am an American and my wife is chinese. We have two children( 2 year old daughter and 5 month old son). We have a babysitter that takes care of my son 24/7 since he was born. My wife is 24 years old never had a real job. She wants to take both of the children and divorce. I want to take my son while she takes my daughter. First question is will I be able to get custody of my son and also If we take one child each will chinese law require me to give child support? Thank you for your time.
Jon, are you both living in China? If yes, you can get the custody but it will be very hard given that the baby is too young at the time. If it could be the case that each of your has one child though this is controversial. Please try to settle with your wife and get things in order.
Yes we are living in China. Thank you.
Hello I got my partner in African but he was Chinese and when I got pregnant he left for China and doesn’t want to take care of the baby. is there a law that can make him give child support to the baby?
yes, so long as you can prove it is his baby, then you can sue him in China to give child support. but you need to do your math to see wehther it is worthy doing all the work accross the globe to go after him.
Hello, I have a couple of questions regarding this interesting topic. My friend’s (westerner) wife (chinese) took the baby (6 weeks old) to her hometown. Then she was negotiating with her husband asking to be economically independent (fix amount) for taking care of the baby and the house. Husband disagrees, family expenses OK but not fixed salary. The wife says she won’t come back and may be asking for divorce. Can the husband ask for custody? Within the first 2 years it’s always the woman who get the custody, right? Thanks in advance.
with the baby being so young, your friend has no way to take custody at this time. But then it will be difficult to take over the custody in the future as the child will be more dependant and accustomed to life built by her mom, father will be surely estranged. Husband shall need some other smart way to take over custody of the baby.
In this case it’s clear the Chinese mother can abduct the child and get away with it (different province). She’s even refusing to speak or cooperating to fix things. What happens if the husband retakes the child back in some kind of smart way? It seems it’s not a legal issue since it’s the father taking his child not a stranger. Thanks.
Hi. I met my partner in Australia. Then I born my daughter after 1 year in Australia . My partner told me that his parents retired and would look after my daughter for me few year until I settle my life in Australia. However I found out that he has wife after that. We separated, when my daughter turned to 3 years old, i authorised her to get chinese permanent resident (hukou) so she can go to school in case my visa in Australia is delayed. Now he and his parents don’t want to return her to me or even let me see her. I am Vietnamese in Australia. Are there Any chance that I can be my daughter legal guardian or at least have chance to get child visit? Thanks
so you are legally married to him but born him a daughter. It will be very difficult for you to claim legal guardianship over the child and even get your visitation right. Best way to go is to negotiate with a settlment instead of going after anything in court.
Hi Jason,
Would like to ask you about my fathers estates.
I met him first time in my life 3 years ago. And he’s been terminally ill(brain cancer) ever since. I’ve visited him 4 times within 1 year. And accompanied him to hospitals during my visits. His mother is still alive, and his 3 sisters have been caring for him most time. Will I be able to inherit anything? (He owns at least 2 houses in shanghai). I’m afraid his sisters and mother already have split his estate without letting me know. What’s your advice?
Yes, surely you are entitled to inherit your father’s estates unless he has made a will excluding you from inheriting the estates.
Hello, my friend says her husband took their son away from her when the child was under 2 years old. Then his family would not allow her to see their son at all. Her husband was also physically abusive to her. When they divorced, the court awarded custody to her husband because they said the child was in a stable living arrangements with the grandparents. They ignored the fact that her husband had taken the son away against her will, and did not allow my friend to see her son for a long time before she filed for divorce. Is there anything that she can do to win custody back?
is your friend still living in China? Well, it is difficult to change custody but it will be very likely to win visitation right.
She fought to win visitation for 1 hour a month. Her ex decided that they would meet at a hotel that he chose. The first time he showed up, but after the visitation, he beat her. Then he has not shown up to anymore pre-arranged visitations. She still lives in Beijing I believe
Every time clients inquire About child custody, in the end, we see clearly how poorly China law has offered to help the weak party in such a traumatic situation, and very often we don’t have a quick and effective way to stop the violence in a family setting. But when the law is so bad, we want to help, but we may fail clients in the end.
Given all this happening this your friend’s case, she may try to fight to take over the custody but so long as she lives in China, that man may haunt her life. On the other hand, she may not be able to take the kid to USA or countries she can easily survive.
Hello my name is kevin i have a few questions.
I have a friend that lives in the united states she is chinese she told me her story about her and her husband getting divorced. And that she doesnt have custody of the child becuase the men in china have more privelage.
No matter what she do she pays almost $5000 of US$ to for her child and family to support him But still no help.
Is there any way for her to get full custody of her child to be with her in the united states where she is currently living?.
no way, if her husband doesn’t agree on her taking the child to United States, try to negotiate to have a settlement and get his permission on moving the child to USA.
Hello, I’m Marie, a filipina from the Philippines. I have a Chinese boyfriend and we met in the Philippines and we had a son. Our son is two years old this month. We are not married yet because he promised we will get married in China. We have applied Chinese Passport for our son last year. After that, they went home in china with our son and I left because we have no marriage license and it’s pandemic yet. When he was there, his plan changed suddenly. He does not want me, So, I feel like no hope to meet us again. No hope that my son and I will not meet again. He just wanted to with our son and not with me. I also want to be with our son. Because that was his promise when he was still here in the Philippines. How is my right as my son’s mother? Can I get our son back? Or can I stay in china near my son just to be with him often? Thank you for your time.
Hi Marie, very sorry to hear this. He apparently cheated you about marriage. It will be very difficult for you to get back your son and take him back to Philippines as your son has a China passport, and your boyfriend must conceal your son passport.
To be near to your son, you will need to think about a way to legally stay in China. Currently except obtaining a work permit, there is no way effective way to keep you within China legally.
You can sue to have visitation right to your son affirmed by court, but in practice in China, visitation right is hard to be enforced. YOu have gotta be tough in accessing your son.
Thank you so much. Can I ask again? My son has not yet registered with the hukou. Because he does not yet have an authenticated birth certificate from the Department of Foreign Affairs in the Philippines. Is it a big problem in case I change his name here legally? Even though he already has a chinese passport?
if your son has already got Chinese passport, there may not be a real problem of registering Hukou for your son in China. I mean, Chinese consulate should have a copy of the birth certificate before issuing Chinese passport.