Background

Mr W (PRC national) and Ms P (Australian national) were married and later separated. Mr W petitioned for divorce, seeking an order that their daughter live with him and that Ms P pay child maintenance. The case raised the classic cross-border issues: which forum, which law, and how a Chinese court assesses the best interests of a child with two nationalities and two habitual residences.

Representation

Ms P instructed Ma Dehui of Shanghai Lixiaohua Law Firm, who practises in cross-border family matters and works in English.

Legal Framework

Article 47 of the Supreme People’s Court Interpretation on the Marriage and Family Section of the Civil Code permits a change of custody where, among other grounds, the parent with whom the child lives suffers serious illness or incapacity, fails to discharge parental duties, or where the child’s continued residence with that parent would be detrimental to his or her wellbeing. The court must assess the child’s best interests as a whole: stability of residence, education, the parent’s capacity to care, and the child’s own wishes where age permits.

Approach

The defence assembled evidence on the child’s schooling, healthcare, care arrangements and the mother’s ability to maintain the child’s existing environment, and addressed the practical question of how contact with the other parent would be preserved across two jurisdictions.

Outcome

The court resolved custody and maintenance on terms that preserved the child’s continuity of care, with arrangements made for cross-border contact.