China Family Law
China does not comply with international norms concerning the return of children who are abducted to that country. Parents should be alert to the substantial degree of risk that if the other parent has the right to reside in China, that parent might retain their child in that country, in which case there are no measures that will secure the child's return.
The Law Office of Jeremy D. Morley handles international family law cases concerning the United States and China in collaboration with law firms in China. The cases that we work on include international divorce issues, international child custody issues, and international child abduction cases.
Jeremy D. Morley has provided expert evidence on the family law of China.
CHINA: FAMILY LAW UPDATE: March 2021
Jeremy D. Morley
China has substantially amended its Law on the Protection of Minors. The new law, passed by the 13th National Peoples Congress in October 2020, will take effect on June 1, 2021.
The amended law contains a list of virtuous principles concerning the duties of parents and guardians, the requirement to protect children, and the role of state organs, residents' committees, villagers' committees, public security units, civil affairs offices and other “relevant departments” in supervising citizens' behavior concerning children.
The newly-specified duties of parents include educating and guiding minors to abide by the law, to be diligent and thrifty, and to “develop good ideological, moral and behavioral habits.” The new requirements include provisions whereby “the state establishes a unified electronic identity authentication system for minors in online games;” as well as an obligation “to install minor network protection software on smart terminal products … for minors, etc.”
A measure that could have a significant impact on the parenting of children in China after parental separation is a provision that, “it is not allowed to compete for custody rights by snatching or hiding underage children.” Until now, a parent in China has generally been free to take a child away from the other parent, often to a distant location. Indeed, in my area of focus, which is that of international families, it is extremely common that, when a Chinese and non-Chinese couple living in China separate, the Chinese parent will exercise self-help by simply removing the child from the other parent, often by taking the child to live with a grandparent or by moving to an undisclosed location. Until now, this method has been all-too-successful. It remains to be seen whether this practice will now change as a result of the new law, or, even more unlikely, whether the new law will have any impact when a Chinese parent abducts a child to China from another country.
A further significant development, effective February 18, 2021, is that courts are now required to interpret the law in compliance with the “Guiding Opinions on Deeply Promoting the Integration of Socialist Core Values into the Analysis and Reasoning of Adjudicative Instruments,” issued by the Supreme People's Court of China. While this rule applies in all cases, it is especially required in cases “of public concern,” including matters as to which an important principle should be stated for the purpose of the education of the public.
The “Socialist Core Values” that must guide all court decisions comprise twelve qualities that should define the relationship between citizens and the Chinese state. These values are: prosperity, democracy, civility, harmony, freedom, equality, justice, the rule of law, patriotism, dedication, integrity and friendship. Their specific application must comport with the guidance of the People's Court as it, in turn, interprets the guidance it receives from the People's Congress. In this context, it is critical to note that the Chinese judiciary makes no claim to judicial independence. It acknowledges that it is strictly subordinate to the Chinese Communist Party.
1. China does not comply with international norms concerning the return of internationally abducted children.
2. China has failed to adopt the Hague Abduction Convention and has failed to enter into any bilateral arrangement with the United States to return abducted children.
3. There can be no extradition from China for international child abduction, since there is no extradition treaty between the U.S. and China.
4. In most cases, a left-behind parent's only potential remedy if a child is taken to and wrongfully retained in China is to search for the child him / herself, while seeking the assistance of the Chinese police, and then, if the child is successfully located, to initiate a new plenary case for custody of the Child in China. However, it is often relatively easy for abducting parents to conceal their location with a child in China for extensive periods of time. Child kidnapping is rampant in China.
5. The Chinese courts generally refuse to handle family cases concerning foreigners or concerning parties who are not registered as domiciled in China.
6. The courts in China are not required to enforce foreign custody orders and they do not do so. There is no system in China to register foreign custody orders or enforce foreign custody orders. China has entered into treaties with some countries concerning the enforcement of commercial judgments, but they do not extend to family matters.
7. There is no law in China similar to the Uniform Child Custody Jurisdiction & Enforcement Act in the United States concerning the recognition of the continuing and exclusive jurisdiction of the courts of another country. The U.S. system whereby a court retains exclusive modification jurisdiction even after a child has become habitually resident in another country is alien to China.
8. Any court proceeding in China concerning custody of or access to an abducted child will likely be unpredictable and difficult.
9. China does not have any legal mechanism to apply for or issue urgent or emergency orders in family law cases.
10. It is usual in China for the custody of a child to be awarded to one parent only.
11. Visitation rights are extremely limited in China, typically being limited to a daytime visit once a month. There is no precedent for any equal sharing of custodial time or for the issuance of a detailed time-sharing arrangement that would provide for the non-residential parent to spend substantial periods of time with the child.
12. It would be unprecedented for a Chinese court to order that a child should be relocated to a foreign country. Nor is there any realistic likelihood that a Chinese court would compel a Chinese parent to allow permit the Mother to have any visitation outside China.
13. It is difficult to enforce child custody orders issued by a Chinese court. The enforcement procedures that exist in China can easily be thwarted, so that enforcement can easily be delayed for extended periods of time or permanently. It is a fundamental principle of Chinese law and culture that the state should not normally interfere in private family life.
14. Judges in China are not independent. They are state employees responsible to the Chinese Communist Party. In 2017 the President of China's Supreme People's Court denounced judicial independence as a false Western idea and insisted that the Chinese judiciary is subordinate to the Chinese Communist Party.
15. There is a high level of corruption in the Chinese legal system. The U.S. State Department reliably and authoritatively reports that in China, “[c]orruption often influenced court decisions, since safeguards against judicial corruption were vague and poorly enforced. Local governments appointed and paid local court judges and, as a result, often exerted influence over the rulings of those judges.”
16. Courts in England and in Hong Kong have confirmed that foreign custody orders are unenforceable in China and that cross-border child abduction into China is without any meaningful remedy.
17. If a parent abducts a child to China and retains the child in China, the left-behind parent will normally have grave difficulty in enforcing any rights concerning the child.