Civil and Commercial Perspectives | Guardianship and Visitation Rights of Grandparents (Grandparents)
Published:
2021-04-28
Abstract: Parents are the guardians of minors. Only when the parents are dead or have no guardianship ability can others act as guardians. Grandparents (maternal grandparents) do not have legal guardianship and can only exercise this supplementary guardianship if the minor parent is dead or has no guardianship capacity. Although the the People's Republic of China Civil Code does not include the visiting rights of grandparents (maternal grandparents) into the scope of legal adjustment, under certain circumstances, the breakthrough of the subject of visiting rights should be allowed. Key words: parental right guardianship visitation right 1. legal guardianship and supplementary guardianship The relationship between (I) parents and their minor children is parental authority. Parental power refers to the rights and obligations of parents to raise, educate and protect minor children in terms of personal and property. The formation of parental legal relationship between parents and minor children is a kind of identity right, which originates from the civil law system. The concept of parental authority is not explicitly defined in the Marriage and Family Section of the the People's Republic of China Civil Code. The rights and obligations of (II) parents to their minor children are legal guardianship. The first paragraph of Article 27 of the Civil Code of the the People's Republic of China Civil Code stipulates that "parents are the guardians of minor children", which is the legal guardianship relationship between parents and minor children. Although the guardian can entrust some or all of the guardianship duties to others, when the guardianship exercised on the basis of entrustment conflicts with the legal guardianship enjoyed by the parents of minor children, the law should first protect the guardianship of the parents of the minor. The parents are the guardians of the minor's children. If one of the minor's parents is unable to perform the guardianship duties due to work and other reasons, if the other parent has the guardianship ability, one parent can accept the entrustment to take care of the child, but the other parent cannot be deprived of the child. Guardianship rights. Because the guardianship of grandparents (maternal grandparents) is a supplementary guardianship, when the supplementary guardianship exercised on the basis of entrustment conflicts with the legal guardianship of the other party, the guardianship shall be protected in priority and shall be exercised by the other spouse. Of course, it is necessary to exclude the situation where both parents go out to work and jointly entrust grandparents (grandparents) to exercise guardianship. The exercise of custody of (III) grandparents (maternal grandparents) is conditional. According to the second paragraph of article 27, another person may act as guardian only if the parent is dead or has no capacity for guardianship. Therefore, the guardianship of the parents over the minor children is the first priority. Unless the parents die, have no guardianship ability or infringe upon the legal rights of the minor and the people's court cancels the guardianship, no other person has the right to restrict or deprive the parents of the minor. Guardianship. The right of visitation of 2. grandparents (maternal grandparents) may be exercised under certain conditions. The (I) Civil Code of the People's Republic of China does not provide for visitation rights of grandparents (maternal grandparents). The first paragraph of Article 1086 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." It can be seen from this that the subject of visitation rights is "the father or mother who does not directly raise the children", and the emergence of visitation rights is a prerequisite for the dissolution of the marriage relationship between the parents, and a necessary condition for not directly raising the children. The right to visit (II) grandparents (maternal grandparents) may be exercised under certain conditions. However, in real life, it is also reasonable for grandparents (maternal grandparents) to visit their grandchildren (maternal grandchildren), although the right to visit grandparents (maternal grandparents) is not the scope of legal adjustment, just as the right to cohabitation in the relationship between husband and wife is not the scope of adjustment in the Marriage and Family Section of the the People's Republic of China Civil Code. Because according to Chinese tradition, the relationship between grandparents and grandchildren is very close, guaranteeing the visitation rights of grandparents (grandparents) to visit their grandchildren (grandchildren) is conducive to the physical and mental health of minor children, and it is also in line with my country's family ethics. Therefore, grandparents (Grandparents) visit their grandchildren (grandchildren) for granted. Under certain circumstances, the right to visit grandparents (grandparents) can be allowed. (III) grandparents (maternal grandparents) visitation rights under specific conditions to exercise the practical significance. 1. The Marriage and Family Code of the the People's Republic of China Civil Code only stipulates the basic norms that people must abide by in the field of marriage and family, and many problems depend on adjustment through moral norms and customs. According to the provisions of the Marriage and Family Section of the the People's Republic of China Civil Code, the subject of visitation rights is only the father (mother) who does not directly raise the children. Even if other close relatives have the emotional need to visit minors, they generally cannot be protected by the state. The right to visit. Therefore, it is usually the case that (outside) grandparents sue to advocate visiting (outside) grandchildren is not within the scope of legal adjustment. However, in certain circumstances, it has practical significance. If the grandparents (foreign) grandparents, in accordance with the provisions of the Marriage and Family Section of the the People's Republic of China Civil Code, take the place of their dead or unable to support their children, the people's court will support their request to visit their (foreign) grandchildren in trial practice. 2. Giving visiting rights to grandparents (foreign) is conducive to making up for the lack of emotional communication among minors and maintaining the harmony and stability of kinship. Grandparents (foreign) grandparents and grandchildren (grandchildren) have natural blood ties and common emotional needs. Visits are conducive to emotional comfort and exchange between the two sides. This kind of family interaction is conducive to the mental health and physical health of minors, and is conducive to the healthy growth of minors. The author thinks that it is very necessary to give grandparents (grandparents) supplementary guardianship only when the parents are dead or have no guardianship ability, and it is very important to allow grandparents (grandparents) to exercise visitation rights under certain conditions.
Abstract:The parent is the guardian of the minor, and only if the parent is dead or has no capacity for guardianship, can another person act as guardian. Grandparents (maternal grandparents) do not have legal guardianship and can only exercise this supplementary guardianship if the minor parent is dead or has no guardianship capacity. Although the the People's Republic of China Civil Code does not include the visiting rights of grandparents (maternal grandparents) into the scope of legal adjustment, under certain circumstances, the breakthrough of the subject of visiting rights should be allowed.
Key words: parental right guardianship visitation right
1. legal guardianship and supplementary guardianship
The relationship between (I) parents and their minor children is parental authority.
Parental power refers to the rights and obligations of parents to raise, educate and protect minor children in terms of personal and property. The formation of parental legal relationship between parents and minor children is a kind of identity right, which originates from the civil law system. The concept of parental authority is not explicitly defined in the Marriage and Family Section of the the People's Republic of China Civil Code.
The rights and obligations of (II) parents to their minor children are legal guardianship.
The first paragraph of Article 27 of the Civil Code of the the People's Republic of China Civil Code stipulates that "parents are the guardians of minor children", which is the legal guardianship relationship between parents and minor children.
Although the guardian can entrust some or all of the guardianship duties to others, when the guardianship exercised on the basis of entrustment conflicts with the legal guardianship enjoyed by the parents of minor children, the law should first protect the guardianship of the parents of the minor.
The parents are the guardians of the minor's children. If one of the minor's parents is unable to perform the guardianship duties due to work and other reasons, if the other parent has the guardianship ability, one parent can accept the entrustment to take care of the child, but the other parent cannot be deprived of the child. Guardianship rights. Because the guardianship of grandparents (maternal grandparents) is a supplementary guardianship, when the supplementary guardianship exercised on the basis of entrustment conflicts with the legal guardianship of the other party, the guardianship shall be protected in priority and shall be exercised by the other spouse. Of course, it is necessary to exclude the situation where both parents go out to work and jointly entrust grandparents (grandparents) to exercise guardianship.
The exercise of custody of (III) grandparents (maternal grandparents) is conditional.
According to the second paragraph of article 27, another person may act as guardian only if the parent is dead or has no capacity for guardianship. Therefore, the guardianship of the parents over the minor children is the first priority. Unless the parents die, have no guardianship ability or infringe upon the legal rights of the minor and the people's court cancels the guardianship, no other person has the right to restrict or deprive the parents of the minor. Guardianship.
The right of visitation of 2. grandparents (maternal grandparents) may be exercised under certain conditions.
The (I) Civil Code of the People's Republic of China does not provide for visitation rights of grandparents (maternal grandparents).
The first paragraph of Article 1086 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." It can be seen from this that the subject of visitation rights is "the father or mother who does not directly raise the children", and the emergence of visitation rights is a prerequisite for the dissolution of the marriage relationship between the parents, and a necessary condition for not directly raising the children.
The right to visit (II) grandparents (maternal grandparents) may be exercised under certain conditions.
However, in real life, it is also reasonable for grandparents (maternal grandparents) to visit their grandchildren (maternal grandchildren), although the right to visit grandparents (maternal grandparents) is not the scope of legal adjustment, just as the right to cohabitation in the relationship between husband and wife is not the scope of adjustment in the Marriage and Family Section of the the People's Republic of China Civil Code. Because according to Chinese tradition, the relationship between grandparents and grandchildren is very close, guaranteeing the visitation rights of grandparents (grandparents) to visit their grandchildren (grandchildren) is conducive to the physical and mental health of minor children, and it is also in line with my country's family ethics. Therefore, grandparents (Grandparents) visit their grandchildren (grandchildren) for granted. Under certain circumstances, the right to visit grandparents (grandparents) can be allowed.
(III) grandparents (maternal grandparents) visitation rights under specific conditions to exercise the practical significance.
1. The Marriage and Family Code of the the People's Republic of China Civil Code only stipulates the basic norms that people must abide by in the field of marriage and family, and many problems depend on adjustment through moral norms and customs.
According to the provisions of the Marriage and Family Section of the the People's Republic of China Civil Code, the subject of visitation rights is only the father (mother) who does not directly raise the children. Even if other close relatives have the emotional need to visit minors, they generally cannot be protected by the state. The right to visit. Therefore, it is usually the case that (outside) grandparents sue to advocate visiting (outside) grandchildren is not within the scope of legal adjustment. However, in certain circumstances, it has practical significance. If the grandparents (foreign) grandparents, in accordance with the provisions of the Marriage and Family Section of the the People's Republic of China Civil Code, take the place of their dead or unable to support their children, the people's court will support their request to visit their (foreign) grandchildren in trial practice.
2. Giving visiting rights to grandparents (foreign) is conducive to making up for the lack of emotional communication among minors and maintaining the harmony and stability of kinship.
Grandparents (foreign) grandparents and grandchildren (grandchildren) have natural blood ties and common emotional needs. Visits are conducive to emotional comfort and exchange between the two sides. This kind of family interaction is conducive to the mental health and physical health of minors, and is conducive to the healthy growth of minors.
The author thinks that it is very necessary to give grandparents (grandparents) supplementary guardianship only when the parents are dead or have no guardianship ability, and it is very important to allow grandparents (grandparents) to exercise visitation rights under certain conditions.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
