Abstract: The determination of child custody is one of the most contentious issues in divorce cases. Since the implementation of the Civil Code of the People's Republic of China, the principle of the best interests of the child has become the prevailing standard for addressing child custody disputes in divorce cases. However, this principle has not been effectively implemented in judicial practice. An empirical analysis of 1854 judicial documents finds that some judgments fail to fully consider the minor's physical and mental well-being, overemphasize the emotional needs of the parents while neglecting the children's interests, award custody to a parent with harmful habits, or, because of an excessive emphasis on continuity, tolerate behaviors such as hiding or snatching the child. The Interpretation Ⅱ of the Supreme People’s Court relating to the Application of the “Marriage and Family” Book of the Civil Code systematically reaffirms the principle of the best interests of the child, providing normative guidance for correcting deviations in judicial practice. Nevertheless, this judicial interpretation still has certain shortcomings. It is necessary to establish systematic legal application standards and specialized family court procedures, and to reconstruct the social support system to implement the principle of the best interests of the child at the practical level, so as to truly maximize minors' interests.

Keywords: the principle of the best interests of the child; child custody disputes; interpretation II relating to the Application of Marriage and Family Book of the Chinese Civil Code; empirical research

 

Author: Hu Changming, associate research fellow, CASS Institute of Law; associate professor, the University of CASS;

Source: 6 (2025) Law Science Magazine.