Study On Exercise Modes Of Child Custody At Divorce

The content of rights and duties between parents and children do not change at parents'divorce, (Within the scope of this paper, the rights and duties refer to child custody.) including personal and financial custody or physical custody and legal custody. Yet, parents have to live separately from each other, because of which, both the ownership and exercise of the custody right will be different from those during the marriage. Ownership of custody has two types after divorce:sole ownership and joint ownership. The first refers to the kind that only mother or father owns the custody right. The second means that the parents both have the right. Exercise of custody right has three types:sole custody, joint custody and third party custody. Focus of the paper lies in the exercise modes.Chapter 1 of the paper briefly introduces the historical development and classification of child custody, right after which, the differences between ownership and exercise are elaborated.Chapter 2 is mainly about sole custody. The major questions about this custody mode are which parent should be the one to exercise the custody right and what the other parent's rights and duties are. As to the former question, the writer analyzes the four principles or standards to define the right owner from the angle of historical development. The principles are in turn the parental presumption, tender years doctrine, primary caretaker presumption and best interests of the child principle. As to the other parent's rights and duties, the paper mainly elaborates the visitation right and supervision right.Chapter 3 focuses on joint custody mode and introduces its concept, historical development and application conditions, which is followed by its classification. Joint custody mode can be divided into three types, including joint legal custody, divided custody and spilt custody, each of which has its special features and application conditions. The chapter also compares the Chinese child rotary raising mode with divided custody, lists the deficiency of the former one and offers several revise advices.Chapter 4 discusses the third party custody mode, mainly focusing on its application conditions:Neither of the parents is qualified or willing to exercise custody right. Yet, the mode is not provided in Chinese laws. The writer then analyzes the feasibility and necessity to adopt the mode into China.Based on analysis in the former 4 parts, the paper concludes with 4 suggestions.1. Ownership and exercise modes of child custody at divorce should be discriminated in the law.2. The law should stipulate that parents both be granted the child custody right after divorce.3. Best interests of the child principle, together with several detailed factors, must be provided as the principle for dealing with all problems with child custody at divorce. 4. The three custody modes, sole custody, joint custody and third party custody, as well as their respective application conditions should all be stipulated in the law.