How to fight for custody in a divorce? How does the court rule? A lawyer teaches you how to prepare evidence in the best interests of your children.

Divorce custody is not about fighting for the child, but about proving who is better able to care for the child.

When preparing for a divorce, many people's biggest fear is not how the property will be divided, but whether their children will be taken away by their spouse. In practice, what people often refer to as "guardianship" is more accurately described in law as "the exercise or burden of the rights and obligations of minor children," that is, who is responsible for the child's living care, education arrangements, medical decisions, household registration and school registration, major decision-making, and daily protection and upbringing.
According to Article 1055 of the Civil Code, when a couple divorces, they can first agree that one or both parties will jointly take care of the child. If the two parties cannot reach an agreement, or if the content of the agreement is detrimental to the child, the court may, at the request of one of the parents, the competent authority, a social welfare institution, or other interested parties, or even ex officio, determine guardianship.
Therefore, divorce custody disputes are not about who argues the loudest, nor are they about who takes the child first. What the court really needs to determine is: which parent's custody is most beneficial to the child's physical and mental well-being, learning, stability of care, and personality development.

The core criterion for courts to award guardianship is "the best interests of the child."

First, it's not necessarily more advantageous for either the father or mother.

Many people ask, "If the child is still young, is it certain that custody will be awarded to the mother?" or "If the father has a higher income, is it easier for him to obtain custody?" The answer is not absolute.
Article 1055-1 of the Civil Code stipulates that when determining guardianship, the court shall consider all circumstances in the best interests of the child. The factors listed in the law include the child's age, gender, number of children, health condition, the child's wishes, personality development needs, the parents' age, occupation, character, health, economic capacity, living conditions, willingness and attitude to protect and raise the child, the state of the parent-child relationship, and whether one parent has engaged in any conduct that hinders the other parent from exercising their parental rights.
In other words, the court does not decide guardianship based on "gender" or simply on "income." Stable income is certainly a plus, but if the higher-earning parent has not provided care for the child for an extended period and is unaware of the child's routine, schooling, medical care, or emotional state, the court may still deem the other parent more suitable to be the primary caregiver.

Second, the primary caregiver is usually an important factor in the judgment.

In custody cases, courts place great emphasis on who has actually cared for the child in the past. Who picks the child up from school every day, who takes the child to see the doctor, who knows about the child's allergies, routines, homework, and emotional changes, who has closer contact with the teacher, and who can provide stable housing and living arrangements—all of these factors influence the court's judgment.
If you have consistently been the primary caregiver for your child, you should provide concrete evidence of this care, rather than simply stating, "I have been the primary caregiver for my child." You should be able to provide evidence such as the child's medical records, contact books, school notices, parent-teacher conversations, pick-up and drop-off records, photos, living expenses, extracurricular activity fees, vaccination or health check-up records, so that the court can see that you are not temporarily seeking custody, but have a long-term commitment to caregiving.

Third, whether or not the child is willing to maintain a relationship with the other parent will also be taken into consideration by the court.

In divorce disputes, some parents use the children to punish their spouses, such as preventing the other parent from seeing the children, refusing to answer phone calls, withholding information about school activities, or verbally abusing the other parent in front of the children. While this behavior may seem like self-protection in the short term, it can be deemed detrimental to the children in the long run by the court.
Article 1055-1 of the Civil Code specifically mentions that the court will pay attention to whether one parent has engaged in any conduct that hinders the other parent from exercising their rights and obligations towards their minor children. In practice, the parent who is willing to respect the child's normal interaction with the other parent is usually more likely to be considered to have a mature parenting attitude.

To gain custody, you need to prepare these pieces of evidence before the court hearing.

First, organize the child's daily care records.

Guardianship cases are not just about eloquence, but about evidence. You should first compile records of your child's care over the past one to three years, including schooling, medical visits, daily routines, after-school care, extracurricular activities, parent-teacher communication, living expenses, and records of time spent with your child.
If you are the primary caregiver for your child, you need to demonstrate to the court that a stable and orderly life has been established for the child under your care. Courts typically do not easily disrupt a child's familiar and safe routine unless the existing care environment is genuinely detrimental to the child.

Second, propose a future care plan, instead of just criticizing the other person.

Many custody disputes turn into mutual attacks, but what the court really wants to know is: if the child is given to you, how do you intend to take care of him/her?
You should specify where you will be staying in the future, which school your child will attend, who will be responsible for pick-up and drop-off, whether your work hours are compatible, who will take care of your child if they are sick, what your summer and winter vacation plans are, how your child's tutoring or extracurricular activities will continue, and what support your grandparents or other family members can provide. If you only keep criticizing the other person without explaining your own care plan, your persuasiveness will be greatly reduced.

Third, if the other party is unfit for the position, evidence must be provided to prove it.

If the other party has a history of domestic violence, alcoholism, drug abuse, gambling, prolonged absence from contact, emotional instability, neglect of care, improper discipline of children, or placing children in dangerous environments, you should preserve evidence as soon as possible. This includes protective orders, police reports, medical examination reports, medical records, school counseling records, social worker records, conversation logs, photos, videos, or witness information.
However, it's important to note that custody cases are not a platform for emotional outbursts. Evidence must be related to the best interests of the child. If it's merely a matter of who is worse off the other in the marriage, but there's no proof that this would affect childcare, the court may not consider it a core element in determining custody.

Is joint guardianship always better? It depends on whether the parents can cooperate.

Some parents hope to maintain balance through joint custody. Joint custody is not impossible, but it requires that both parents can communicate and cooperate, and make decisions on major issues. If the conflict between the two parents is severe, and they cannot even discuss things like which school the child should attend, whether to see a doctor, or how to transfer the child's household registration, joint custody may actually trap the child in the parents' conflict.
In practice, the court may, depending on the specific circumstances of the case, arrange for one parent to exercise sole parental rights while the other parent retains the right to meet and interact with the child; alternatively, it may arrange joint guardianship, with one parent serving as the primary caregiver. The real focus is not on the name, but on whether the child can have a stable life and whether the parents can minimize the harm caused by conflict to the child.

What can I do if the other party won't let me see my child?

According to Article 1055 of the Civil Code, the court may, at its discretion, determine the manner and duration of meetings and interactions between the party who has not exercised or assumed rights and obligations and their minor child. In other words, even if one party does not have primary guardianship, they still have the right to meet and interact with the child in principle.
If the other party refuses to let you see your child, it is advisable not to resort to methods such as snatching the child, blocking the school gate, or taking the child away privately. These actions may lead the court to believe that you are disrespecting the child's life order and may even increase the risk of conflict. A more prudent approach is to first keep records of the other party's refusal to meet, temporary cancellation, blocking of communication, and refusal to disclose the child's situation, and then apply to the court for a discretionary method of meeting and communication, and if necessary, apply for enforcement of the advice or compulsory measures.

Three most common mistakes in divorce custody cases

1. Using children as bargaining chips

Some people might say, "If you don't agree to the terms regarding the assets, I won't let you see the children." This statement is legally very dangerous. Children are not bargaining chips in divorce negotiations, and courts do not encourage either party to use parentage as leverage. Bringing up such records could actually harm your custody claims.

Second, they only emphasized that they loved their children more, but provided no evidence.

Every parent may say they love their child, but the court needs to see concrete actions. Whether you provide stable care for your child, understand their needs, are capable of supporting their life, and help them maintain a safe and healthy relationship with the other parent are all more important than empty emotional expressions.

Third, the assumption that the court will automatically grant a child's request to live with a particular parent.

The court will consider the child's wishes, but they are not the only criterion. Older children's opinions are usually given more weight; however, the court will still determine whether the child's opinion has been influenced by pressure, indoctrination, appeasement, or fear. What children truly need is not just to choose sides, but a stable, safe, and respectful environment to grow up in.

Lawyers advise: Guardianship lawsuits should start from the child's life.

If you are preparing for a divorce custody case, the most important thing is not to think about how to defeat the other party, but to answer the questions that the court is really concerned about: how is the child living now, who is taking care of him/her, what are the future arrangements, and which approach can best maintain the child's sense of security and stability.
You can start by compiling a complete list of information, including the child's daily care records, school records, medical records, parent-teacher communication, living expenses, living environment, family support, work hours, and future care plans. If the other party has indeed engaged in behavior detrimental to the child, present it with evidence rather than emotional appeals.
Divorce ends the marital relationship, but it does not end parental responsibilities. Ultimately, custody cases are not about who wins or loses, but about whether children can continue to receive stable care, be properly understood, and grow up safely after their parents separate.

Frequently Asked Questions

1. Is custody always awarded to the mother in a divorce?

Not necessarily. Courts, in accordance with Article 1055-1 of the Civil Code, use the best interests of the child as the criterion for determining custody, and will not decide custody solely based on gender. Who is the primary caregiver, who can provide a stable life, who understands the child's needs, and who is willing to respect the child's interactions with the other parent are all important factors.

Second, does a higher income make it easier to obtain guardianship?

Income is one of the factors that the court will consider, but it is not the only criterion. If one party has a high income but has not taken care of the child for a long time, while the other party has an average income but can provide a stable care and support system, the court may still consider the latter to be in the best interests of the child.

3. If a child says they want to stay with me, will the court rule in accordance with the child's wishes?

The court will consider the child's wishes, but will not rely solely on the child's statement. The court will still comprehensively consider the child's age, maturity, freedom of expression, stability of life, quality of care, and parental competence in its judgment.

4. If the other party won't let me see the child, can I just go to the school to pick him up?

Not recommended. Directly picking them up from school or handling the situation through conflict could negatively impact the court's evaluation of your parenting attitude. A more appropriate approach is to preserve evidence of the other party's obstruction of the meeting, petition the court for a discretionary arrangement of the meeting, and, if necessary, apply for enforcement of the warning or mandatory execution of the order.

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