On The Legal Protection Of Parents' Right To Visit Their Children After Divorce

It’s the first time that Marriage Law of the People’s Republic of China(Amendment)stipulated the visitation right in 2001.The emergence of the system makes up for the vacancy of a long time in the field of the legal system of the visitation right in our country,provides the necessary legal basis for the relevant judicial practice,and is in favor of protecting the legitimate rights and interests for divorced parents and physical and mental development for minor children from the point of view of the family.However,due to Marriage Law just making some principle rules for the visitation right at the beginning of the legislation,with the continuous development of society and the sophisticated changes of marriage and family relations,in the face of increasingly complicated judicial practice,it unavoidably appears the phenomenon that the legal provisions is divorced from the social reality,which results in a dilemma that the legal system of the visitation right can’t achieve its intended purpose.Therefore,strengthening the research of relevant issues about the visitation right and promoting the mature development of the legal system have important theoretical and practical significance.This thesis starts from the particularity of marriage and family relations and the need for protection of the rights and interests of minors,systematically makes demonstration and analysis for the problem of the visitation right by adopting the research methods of literature material,case analysis,value analysis and comparative analysis and so on,and provides targeted and feasible countermeasures to further perfect the legal system of visitation right in our country and to actually solve the problems and obstacles during the implementation of the visitation right.Firstly,this thesis begins with the related theoretical overview of the visitation right to carry on a simple exposition for the concept,characteristics,and practical and legal significance of its establishment,so that we can have a general understanding of this right and also realize the important legislative and practical value of the improvement of the visitation right for family harmony and social stability.Secondly,through the analysis of the legislative status of visitation right in our country,on the basis of introducing relevant legal provisions,it points out the problems existing in the legal system of the visitation right in China,mainly including limited extension of the subject of the visitation right,overgeneralization of the contents,ambiguity of the legal standard and reason of suspension,impracticality and difficulty of forcible execution,etc.All these deficiencies and defects,to some extent,hinder the exercise of the father or the mother after divorce,and violated the important principle of children’s best interests at the same time.Finally,the thesis proposes to use the experience of the relevant legislation and judicial practice of other countries for reference,in the meanwhile,conjuring up China’s actual conditions.Under the background of the principle of children’s best interests,it’s suggested that the visitation right should expand the scope of the subject and clear the specific content and restrictions in detail,besides,we also need to establish and perfect a diversified safeguard mechanism in the process of the execution of the visitation right.The specific contents mainly include the following sections,which are the father or the mother who does not directly bring up children shall have the right to visit children,the law should clarify the subject positions of minor children,grandparents under certain conditions should be given the visitation right,the scope of obligors should be appropriately expended,ways and reasons of suspension in the exercise of the visitation right should be enriched and flexibly applied,the exercise of the right should reflect the will of the children,the law should perfect relevant procedure services,it needs to use a multi-pronged approach to overcome the difficulty of exercising and the law should improve the mechanism of legal responsibility associated with the visitation right.