Case Introduction

         Ms. Zheng, the applicant, stated that she and Mr. Zhou registered their marriage in 2017 and had a son named Xiao Zhou in 2019. In 2023, he filed for divorce in court due to a strained relationship with Mr. Zhou. Mr. Zhou took Xiao Zhou away without consulting with him, and used various excuses to obstruct his visit to the child, even hiding the child. Ms. Zheng believes that Mr. Zhou's forced and violent seizure and hiding of underage children seriously damages his right to guardianship and family education, as well as infringes on the legitimate rights and interests of children, which is not conducive to their physical and mental health. Accordingly, in accordance with legal provisions, we request the court to rule in accordance with the law that Mr. Zhou immediately cease infringing on his guardianship rights.

       Mr. Zhou argued that he did not agree with Ms. Zheng's request. He and Ms. Zheng began to separate in 2023 due to emotional discord, and after the separation, they were raised by him and his parents assisted in raising their children. During this period, it ensured Ms. Zheng's visitation and guardianship rights through video means, rather than preventing communication with the child as stated by Ms. Zheng. Ms. Zheng's application for a ban does not meet the urgent requirements of reality.

Court Trial

      After trial, the court held that both spouses have equal rights to raise, educate, and protect their minor children, and jointly assume the obligations of raising, educating, and protecting their minor children. Both parents have equal guardianship rights over their underage children. The rights arising from the lawful performance of guardianship duties by guardians are protected by law.

       In this case, Xiao Zhou is still under age. Ms. Zheng and Mr. Zhou, as Xiao Zhou's parents, are both guardians of Xiao Zhou and enjoy guardianship rights. According to the statements made by both parties during the trial and the chat records submitted by Ms. Zheng, it can be seen that Ms. Zheng did not directly raise her married son Xiao Zhou since their separation, and Mr. Zhou refused to provide Xiao Zhou's specific address. Although Mr. Zhou argues that Ms. Zheng's visitation and guardianship rights over Xiao Zhou have been guaranteed through video, it is not possible to guarantee Ms. Zheng's guardianship rights solely through video, as both parties have not reached a consensus on the issue of child custody. 

       After the separation of both parties, Ms. Zheng, as the mother of Xiao Zhou, was unable to directly exercise her rights to upbringing, education, and protection, which infringed upon the rights that Ms. Zheng enjoyed as Xiao Zhou's guardian. The child's growth process only occurs once. If Mr. Zheng's infringement of Ms. Zheng's guardianship is not stopped, it is not conducive to protecting the parent-child relationship between Ms. Zheng and her children, and is not conducive to the physical and mental health of minors. Ms. Zheng's guardianship has been infringed upon, and her application meets the conditions for issuing an injunction against personality infringement as stipulated by law. The court has ruled that Mr. Zhou should immediately cease the infringement of Ms. Zheng's guardianship.

The judge's statement

       Article 24 of the Law of the People's Republic of China on the Protection of Minors stipulates that it is not allowed to compete for custody rights by seizing or hiding underage children. However, in judicial practice, it is not uncommon for one spouse in a separation or divorce lawsuit to seize or hide children in order to obtain custody rights. This act of seizing and concealing underage children not only causes one spouse to be unable to exercise guardianship normally, but also is detrimental to the physical and mental health of underage children. In the case of robbery or concealment of underage children, the other party may protect their own rights by applying for an injunction on personality rights infringement.

       This article is transferred from the WeChat official account "Haidian Court", and thanks for it.