Civil and commercial perspectives | How to crack the visitation rights puzzle
Published:
2022-11-09
Recently, the author received two consultations on the exercise of visitation rights. The content of the consultation was: the party who did not raise children after divorce wanted to exercise visitation rights, but the party who raised children refused to cooperate. Although they are all related to the exercise of visitation rights, their handling methods also vary due to the different agreements or judgments on the time and manner of exercising visitation rights at the time of divorce. Legal basis for 1. visitation rights Article 10286 of the the People's Republic of China Civil Code stipulates: "After divorce, the father or mother who does not directly raise the children has the right to visit the children, and the other party has the obligation to assist." 2. cases In combination with the relevant laws and regulations, this paper makes a simple analysis of two cases concerning the exercise of visitation rights, hoping to inspire readers to solve the problem of visitation rights. Case 1: Both Zhang and Sun were divorced by the court in March 2022. The judgment also ordered the legitimate child Zhang to be raised by his mother Sun. Zhang paid 1800 yuan at the end of each month and enjoyed the right of visitation. After the verdict came into effect, Zhang lived with Sun and his family. During this period, Zhang went to visit his married son Zhang many times but failed. In order to realize the right to visit, Zhang applied to the court for enforcement based on the effective judgment, but because the judgment did not make a judgment on the specific time and method of exercising the right to visit, the court rejected his application for enforcement. In order to realize his visitation rights, Zhang had to file a visitation rights dispute lawsuit to the court, and the court filed a case. What makes Zhang puzzled is: Why can't he directly apply for enforcement, but need to file a visit right lawsuit? Case 2: Ning and Wang registered for marriage in December 2018 and gave birth to a daughter, Ning, in October 2019. In September 2022, the two divorced through mediation by the people's court. The mediation statement stated: "The legitimate daughter Ning Moumou is raised by Wang Mou. Ning Mou bears the maintenance fee of 2000 yuan every month until the child is 18 years old. Ning Mou has the right to visit the legitimate daughter and can visit once a month (pick up at 9:00 on Saturday at the end of the month and return at 17:00 p.m.)". However, after the two parties dissolved their marriage, Wang refused to cooperate with Ning to exercise visitation rights. In order to realize the right of visitation, Ning applied to the court for enforcement according to the effective mediation. Because the mediation clearly recorded the specific time and method of exercising the right of visitation, the court accepted Ning's application for execution. Brief Analysis of 3. First of all, at the time of divorce, the specific time and manner of exercising visitation rights should be clarified. From the previous two cases, it can be seen that if the driving time and method of the visitation right are not clear during the divorce, and the party who does not raise the children is blocked from exercising the visitation right to apply for enforcement, the court will not accept it, and the parties have to file a separate visitation right dispute lawsuit. Therefore, in order to avoid the exercise of visitation rights after divorce is blocked, the specific time and manner of the exercise of visitation rights should be clarified at the time of divorce. Secondly, the visitation right is not only the legal right of the party who does not raise the children, but also the protection measure for the minor children whose parents divorce. The provisions of the the People's Republic of China Civil Code on visitation rights not only protect the basic rights of parents, but also protect the rights of minor children through legislation, and minimize the harm caused by parents' divorce to minor children. The divorce of the parents cannot block the relationship between the father or mother who does not raise the child and the child. Finally, the enforcement measures taken by judges in the enforcement of such cases. For the executor who has the obligation to pay after divorce but fails to fulfill the obligation to pay, the enforcement judge will first clearly inform him that the enjoyment of rights and the performance of obligations are equal, and that if there is a need to bear child support, it must be paid in accordance with the contract. For the parties who refuse to cooperate with the visit, the executive judge will usually have an in-depth understanding of the actual situation of the contradiction between the two parties, patiently and meticulously do the ideological work of the parties, and resolve the parties' grievances about marriage, the other party and the other party's family. At the same time, it will also explain to the party who refuses to cooperate with the other party in exercising the right of visitation. Although both parents choose to divorce for various reasons, they cannot artificially interfere with the other party's comfort and care for the child, and should be allowed to bridge the relationship with the child through visitation. "Family affection" reduces the contradiction of children's visitation rights from the perspective of being conducive to the growth of children. For parties who have no justifiable reasons and have exhausted their ideological work, but still clearly oppose law enforcement and refuse to allow applicants to visit their children, the enforcement judge will punish them in accordance with the law and impose penalties such as fines and detention in due course. Article Link 1. Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Part of the the People's Republic of China Civil Code Article 61 The people's court may take compulsory measures in accordance with the provisions of Article 111 of the Civil Procedure Law for parties or other persons who refuse to perform or hinder others from performing their child support obligations in effective judgments, rulings, or mediation documents. Article 65 If the right of visitation is not involved in the effective divorce judgment made by the people's court, and the party concerned brings a separate lawsuit on the issue of the right of visitation, the people's court shall accept it. 2. Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law Article 5103: "If the person subjected to execution fails to perform the act specified in the legal document, and the act can only be completed by the person subjected to execution, the people's court may deal with it in accordance with the provisions of paragraph 6 of paragraph 1 of Article 114 of the Civil procedure Law." (3) the People's Republic of China Civil Code Article 10286 stipulates: "After divorce, the father or mother who does not directly raise the children has the right to visit the children, and the other party has the obligation to assist."
Recently, the author received two consultations on the exercise of visitation rights. The content of the consultation was: the party who did not raise children after divorce wanted to exercise visitation rights, but the party who raised children refused to cooperate. Although they are all related to the exercise of visitation rights, their handling methods also vary due to the different agreements or judgments on the time and manner of exercising visitation rights at the time of divorce.
Legal basis for 1. visitation rights
Article 10286 of the the People's Republic of China Civil Code states:"After divorce, the father or mother who does not directly raise the child has the right to visit the child, and the other party has the obligation to assist."
2. cases
In combination with the relevant laws and regulations, this paper makes a simple analysis of two cases concerning the exercise of visitation rights, hoping to inspire readers to solve the problem of visitation rights.
Case 1:The husband and wife of Zhang and Sun were divorced by the court in March 2022. The judgment also ordered the legitimate child Zhang to be raised by his mother Sun. Zhang paid 1800 yuan at the end of each month and enjoyed the right of visitation. After the verdict came into effect, Zhang lived with Sun and his family. During this period, Zhang went to visit his married son Zhang many times but failed. In order to realize the right to visit, Zhang applied to the court for enforcement based on the effective judgment, but because the judgment did not make a judgment on the specific time and method of exercising the right to visit, the court rejected his application for enforcement. In order to realize his visitation rights, Zhang had to file a visitation rights dispute lawsuit to the court, and the court filed a case. What makes Zhang puzzled is: Why can't he directly apply for enforcement, but need to file a visit right lawsuit?
Case 2:Ning and Wang registered for marriage in December 2018 and gave birth to a daughter, Ning, in October 2019. In September 2022, the two divorced through mediation by the people's court. The mediation statement stated: "The legitimate daughter Ning Moumou is raised by Wang Mou. Ning Mou bears the maintenance fee of 2000 yuan every month until the child is 18 years old. Ning Mou has the right to visit the legitimate daughter and can visit once a month (pick up at 9:00 on Saturday at the end of the month and return at 17:00 p.m.)". However, after the two parties dissolved their marriage, Wang refused to cooperate with Ning to exercise visitation rights. In order to realize the right of visitation, Ning applied to the court for enforcement according to the effective mediation. Because the mediation clearly recorded the specific time and method of exercising the right of visitation, the court accepted Ning's application for execution.
Brief Analysis of 3.
First of all, at the time of divorce, the specific time and manner of exercising visitation rights should be clarified.
From the previous two cases, it can be seen that if the driving time and method of the visitation right are not clear during the divorce, and the party who does not raise the children is blocked from exercising the visitation right to apply for enforcement, the court will not accept it, and the parties have to file a separate visitation right dispute lawsuit.
Therefore, in order to avoid the exercise of visitation rights after divorce is blocked, the specific time and manner of the exercise of visitation rights should be clarified at the time of divorce.
Secondly, the visitation right is not only the legal right of the party who does not raise the children, but also the protection measure for the minor children whose parents divorce. The provisions of the the People's Republic of China Civil Code on visitation rights not only protect the basic rights of parents, but also protect the rights of minor children through legislation, and minimize the harm caused by parents' divorce to minor children. The divorce of the parents cannot block the relationship between the father or mother who does not raise the child and the child.
Finally, the enforcement measures taken by judges in the enforcement of such cases.
For the executor who has the obligation to pay after divorce but fails to fulfill the obligation to pay, the enforcement judge will first clearly inform him that the enjoyment of rights and the performance of obligations are equal, and that if there is a need to bear child support, it must be paid in accordance with the contract.
For the parties who refuse to cooperate with the visit, the executive judge will usually have an in-depth understanding of the actual situation of the contradiction between the two parties, patiently and meticulously do the ideological work of the parties, and resolve the parties' grievances about marriage, the other party and the other party's family. At the same time, it will also explain to the party who refuses to cooperate with the other party in exercising the right of visitation. Although both parents choose to divorce for various reasons, they cannot artificially interfere with the other party's comfort and care for the child, and should be allowed to bridge the relationship with the child through visitation. "Family affection" reduces the contradiction of children's visitation rights from the perspective of being conducive to the growth of children.
For parties who have no justifiable reasons and have exhausted their ideological work, but still clearly oppose law enforcement and refuse to allow applicants to visit their children, the enforcement judge will punish them in accordance with the law and impose penalties such as fines and detention in due course.
Article Link
1. Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Part of the the People's Republic of China Civil Code
Article 61 The people's court may take compulsory measures in accordance with the provisions of Article 111 of the Civil Procedure Law for parties or other persons who refuse to perform or hinder others from performing their child support obligations in effective judgments, rulings, or mediation documents.
Article 65 If the right of visitation is not involved in the effective divorce judgment made by the people's court, and the party concerned brings a separate lawsuit on the issue of the right of visitation, the people's court shall accept it.
2. Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law
Article 5103: "If the person subjected to execution fails to perform the act specified in the legal document, and the act can only be completed by the person subjected to execution, the people's court may deal with it in accordance with the provisions of paragraph 6 of paragraph 1 of Article 114 of the Civil procedure Law."
(3) the People's Republic of China Civil Code
Article 10286 stipulates: "After divorce, the father or mother who does not directly raise the children has the right to visit the children, and the other party has the obligation to assist."
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