An Empirical Study Of Litigation In Intergenerational Visitation Disputes

In 2001,the Marriage Law of the People’s Republic of China（hereinafter referred to as "Marriage Law"）was amended to add a visitation rights system,which has played an important role in family disputes,safeguarding the right of the party not directly raising the children to visit them after divorce and maintaining the parent-child bond.However,with the increasing number of intergenerational visitation disputes filed by（grand）grandparents as the subject of litigation in recent years,the visitation rights system has gradually become somewhat inadequate in dealing with such disputes.Some scholars agree to legislate for the establishment of intergenerational visitation rights to specifically solve the problem,but it is always highly controversial.The Civil Code of the People’s Republic of China（hereinafter referred to as the "Civil Code"）,in the face of the collision of different views from the academic community,ultimately did not provide for this right based on various considerations,and still relied on judges to exercise their discretion to deal with individual disputes.Such a dispute resolution method is not perfect and has some problems.Therefore,the focus of this paper is to analyze the cases of intergenerational visitation rights,summarize the problems and propose solutions.The body of this article has four parts.Part I,Overview of Litigation of Intergenerational Visitation Disputes.The concept and elements of intergenerational visitation rights are presented through a comparison of visitation rights.This is followed by an introduction to the background of the litigation of intergenerational visitation disputes,which is mainly caused by the separation of grandparents and grandchildren brought about by the change of family structure in China.Whether to carry out legislation to confirm the right is highly controversial,and there are many problems in dealing with it in practice.Finally,the jurisprudential basis of intergenerational visitation rights is elaborated,and its conditional support is in line with the purpose of civil litigation to resolve disputes and protect the interests of minors and the elderly.The second part is about the litigation practice of intergenerational visitation right disputes.Through collecting and analyzing the cases of intergenerational visitation disputes nationwide,the key information such as the subject of application for rights,the use of mediation mechanism,the result of judgment and legal basis,the exercise of rights,the suspension of matters and the ways of remedy for rights are indicated.The third part is problems of the litigation of intergenerational visitation disputes.It is praiseworthy that the litigation has achieved good results,but the problems exposed also need to be paid attention to.From the adjudication to the execution stage,the following problems exist: the scope of application subjects is small,mediation does not play fully a role,the basis of the decision is confusing,the exercise of rights is full of difficulties,the cause of suspension is not clear,the lack of remedies,etc.The fourth part is the judicial path to improve the litigation of intergenerational visitation rights disputes.On the basis of China’s national conditions,it is proposed to solve the problem from the judicial path.Such as expanding the scope of the subject,adhere to the priority of mediation,refining the cause of suspension,improve the rules of the exercise of rights and provide additional relief measures.