Revised February 14, 2022
Supplementary Case Examples
A plaintiff who claimed her husband frequently beat her, causing her to suffer several injuries, also claimed to have been physically separated from her husband for three years. Claiming also that their daughter was in her possession, she asked the court both to grant her child custody and to order the defendant to pay child support. Throughout the trial the plaintiff incrementally retreated from her original claims. First, she forfeited child support. In his oral statement to the court, the defendant agreed to divorce but requested child custody. He then added that he would retract his consent to divorce unless a house he built with his own money but in the plaintiff’s father name were returned to him. Without elaborating or supporting its conclusion, the court inexplicably affirmed that their daughter was actually in the physical possession of the defendant. At this point the plaintiff made another concession: she gave up her child custody claim. The court then approved the plaintiff’s divorce petition and granted child custody to the defendant without ruling on the defendant’s property claim (Decision #3426330, Cangnan County People’s Court, Zhejiang Province, February 13, 2015, Case ID (2015)温苍矾民初字第24号, archived at https://perma.cc/87TM-653J).
In one plaintiff’s account, her husband regularly insulted and beat her, and even threw her out of their home. She recounted one occasion in which he returned home drunk past midnight, beat her uncontrollably over some small thing, and smashed her cell phone. Only with the help of her mother-in-law was she able to hide from the defendant and call her parents, who immediately called the police and rushed over to rescue her. She was taken to the Wenzhou Municipal Number Three People’s Hospital for treatment. According to the plaintiff, the defendant, showing not one iota of remorse or concern, not only failed to visit her, but even made threats against her for calling the police and tarnishing his reputation. In her statement she requested custody of their son. On the basis of medical records submitted by the plaintiff documenting an external head injury, soft tissue bruises all over her body, and a renal contusion, the court affirmed that the defendant’s actions constituted domestic violence. The court ordered the defendant to pay damages of ¥4,000 as compensation for her medical costs and emotional distress. After documenting the plaintiff’s claims and arguments, the presiding judge added a sentence: “Petition supplement: After separating, the child has been continuously living with the defendant. I have no income and am unable to raise the child, but I will pay ¥500 per month in child support.” This is yet another example of a plaintiff who backpedaled a claim she made at the outset of the trial. Although the defendant was absent from the trial, he submitted a statement to the court after the conclusion of the trial in which he agreed to the divorce and demanded child custody. In its holding, the court also declared its respect for and affirmation of the mutual wish of both sides for custody of their son to go to the defendant (Decision #4541699, Wenzhou Municipal Longwan District People’s Court, Zhejiang Province, June 14, 2016, Case ID (2016)浙0303民初1287号, archived at https://perma.cc/R6BA-C36M). Of course from the written decision we cannot ascertain with certainty whether the court’s custody holding truly reflected the litigants’ “mutual wish.” One possibility is that the plaintiff never wanted custody in the first place and initially used it as bargaining leverage in pursuit of her real goal to divorce. Another possibility is that court pressured her to compromise, to concede something to her husband so he could walk away from the divorce with a win. Either way is of little material difference with respect to the safety and wellbeing of children. Regardless of the means or motive, the end result was the child’s placement in the custody of an affirmed perpetrator of domestic violence.
In one case, the plaintiff described an incident in which her husband beat her in front of their young daughter. In June 2015, after a subsequent instance of violence, the plaintiff returned with her daughter to her natal family where they continuously remained. According to the plaintiff, her daughter had been living with her since birth. She filed for divorce in November 2015. The defendant denied the plaintiff’s allegations of domestic violence and claimed that he had falsely confessed to beating her in a pledge letter only as a way to persuade her to stay with him. Because both sides insisted on child custody, the court investigated their respective claims and affirmed that their daughter had lived with the defendant’s family after birth and that the plaintiff had taken her away when returning to her natal family. Its rationale for granting custody to the defendant was “a holistic consideration of the ability and means to raise the child and other concrete circumstances” (Decision #4124808, Jiashan County People’s Court, Zhejiang Province, January 22, 2016, Case ID (2015)嘉善西民初字第651号, archived at https://perma.cc/753H-FMYG).
The plaintiff in another case stated to the court that her husband became frequently abusive (谩骂) beginning at the time she discovered his extramarital affair. On one occasion, according to her legal complaint, in an explosive fit of rage, his domestic violence injured her, causing a bone fracture in her foot. She requested custody of their son. In his defense statement, her husband agreed to divorce but also requested child custody. He denied the plaintiff’s claim of domestic violence by asserting that her foot injury was caused by her carelessness walking in new high-heeled shoes he had purchased for her. In its holding, the court affirmed the plaintiff’s claim of domestic violence by stating that the “photographs, call logs, text messages, audio recordings, and related evidence submitted by the plaintiff are sufficient to prove the defendant’s wrongdoing over the duration of the marriage and that, in accordance with legal provisions, the plaintiff’s request for damages of ¥10,000 has a legal basis and is supported by evidence, and is therefore approved by the court.” (Article 46 of the Marriage Law provides civil damages for the following acts of wrongdoing that cause divorce: bigamy, extramarital cohabitation, domestic violence, and maltreatment and desertion of family members.) At the same time as it awarded damages to the plaintiff as compensation for the defendant’s abusive behavior, the court also granted custody of their son to the defendant on the grounds that “the son Xu X has been living with his father in recent times” (Decision #1209823, Luohe Municipal Shaoling District People’s Court, Henan Province, July 12, 2014, Case ID (2014)召民初字第297号, archived at https://perma.cc/TG6B-Z9XJ). This outcome was likely a compromise achieved through judicial mediation, an instance orchestrated by the court of exchanging money for child custody. Just as courts soften the blow to men unwilling to divorce by giving them child custody, they likewise use economic compensation in the form of civil damages or marital assets to soften the blow to women whom they deny child custody. However, given how rarely they award civil damages for wrongdoing according to Article 46 of the Marriage Law (Chapter 7), judges seem more concerned with preventing violent husbands from directing their anger against the court than with either softening the blow to women of losing child custody or protecting the safety of children.
In another case, the plaintiff stated to the court that she escaped to her natal family after getting into a fight with her husband in early July 2012. According to her legal complaint, when she returned to her marital home in late August to wash and exchange her clothes, the defendant locked her in the bathroom and tried to attack her with a knife. Thankfully, she explained, her father-in-law blocked him and she was not seriously harmed. Under the persuasive efforts of both sets of parents, she moved back in with her husband in September. Less than two weeks later he again beat the plaintiff without provocation, injuring and prompting her return to her natal family. As she put it, she gave the defendant another chance for the sake of their son. Following several mediation sessions with the Yaozhuang Justice Office in Jiashan County, they reconciled and the defendant made a verbal pledge to control his temper. On January 30, 2013, she called the police when the defendant smashed in the front door of the plaintiff’s natal home with an iron rod in the middle of the night. The next day on her way to work, the plaintiff encountered the defendant clutching a knife waiting for her on the street. Thoroughly fed up, she filed for divorce the first time in February 2013. The current trial was the second of a “divorce twofer.” She filed for divorce the second time in November 2013. She explained to the court that in the time since it denied her first petition, she lacked the courage not only to return to her marital home, but even to return to her natal home, and that maintaining any semblance of a normal life was impossible. In his defense statement, the defendant claimed the fighting stemmed from love notes he discovered on her electric bicycle which made him suspect an affair, and that the violence was mutual. Begging for another chance, the defendant said the mediation carried out by the justice office made him aware of his bad temper, and that he would fix his shortcomings. In a desperate effort to persuade the court to deny the divorce, the defendant submitted as evidence several articles of underwear that he claimed proved the existence of marital affection because they were handmade for him by the plaintiff. He also submitted a variety of gynecological products which he claimed proved that the plaintiff had an abortion after getting impregnated by another man. In response, the plaintiff pointed out that the articles of underwear were actually manufactured products purchased by the defendant, and that the pregnancy she aborted was the defendant’s. Without affirming the occurrence of domestic violence, the court granted the plaintiff’s divorce request and granted custody of their son to the defendant: “In comprehensive consideration of the actual living circumstances of plaintiff and defendant, the child’s current situation with his father is more beneficial to his healthy upbringing” (Decision #2812651, Jiashan County People’s Court, Zhejiang Province, January 9, 2014, Case ID (2013)嘉善民初字第1625号, archived at https://perma.cc/B84L-FCJL). Although there is no obvious sign of deal-making in this decision, it too may have been an arrangement brokered by the court to appease a litigant with an established history of violence.
Another plaintiff stated that she and her husband argued on the phone when she was at her natal home to attend her younger brother’s wedding. The next day her husband slashed her car tires with two kitchen knives before rushing into her parents’ home and pressing the knives against her neck with murderous intent. In her words, she was lucky to escape with her life when someone at the scene seized the knives from the defendant. Both sides requested custody of their eight-year-old daughter. In support of her version of events, the plaintiff submitted a copy of a public security administrative punishment decision. The defendant had served a sentence of ten days in administrative detention and a ¥500 fine. The court accepted this piece of evidence as proof that the defendant pursued the plaintiff wielding two kitchen knives and held them against the plaintiff’s neck. In its holding, the court added that the plaintiff, in the litigation process (原告在庭审时), agreed to allow the defendant to assume custody of their daughter (Decision #2369316, Cangnan County People’s Court, Zhejiang Province, August 16, 2010, Case ID (2010)温苍民初字第976号, archived at https://perma.cc/UFF9-3PTZ). This particular detail in the court’s holding is a strong hint that it applied or supported pressure on the plaintiff to concede child custody.