The Criterion and Improvement of Rules of the Best Interests of the Child in the Trial of Divorce Cases
Children have a special characteristic of immature physical and mental de-velopment,so the full enjoyment of the right to guardianship is a necessary prerequisite and fun-damental guarantee for achieving their best interests.The divorce of parents deconstructs the natural family guardianship mode of children and has a profound impact on children's interests.In recent years,the number of divorce cases in China has remained high,and it is urgent to ex-plore ways to properly resolve important issues concerning children's right to guardianship,such as direct custody,maintenance,and visitation rights,in divorce proceedings,in order to maximize the protection of children's interests in the event of parental divorce.It must be ac-knowledged that China has made significant progress at the legislative level,establishing the basic trial principle of"being in the best interest of minor children"for divorce cases.Howev-er,there are some shortcomings in specific rules.The relevant judicial interpretations are still lagging behind legislation and have not fully reflected the latest legislative progress,resulting in difficulties in fully and effectively safeguarding the interests of children involved in divorce pro-ceedings in practice.We should,based on the international standard of taking the best interests of the child as"a primary consideration",reflect on the problems existing in China's current judicial practice and improve the specific trial rules for child guardianship matters in divorce ca-ses by taking the reality of China as the starting point,so as to ensure the comprehensive imple-mentation of and consistent adherence to the principle of"being in the best interest of minor children"in the trial.On the one hand,at the level of basic principles,the principle of the best interests of the child should be emphasized as the guiding principle in divorce trials,so as to ensure that the basic trial concept of taking the interests of the child as"a primary considera-tion"be implemented in all stages of divorce litigation.On this basis,a dynamic review should be carried out with the principle of the best interests of the child as the core,taking into account children's evolving abilities,and fully respecting their true wishes in all specific rules of divor-ce proceedings.On the other hand,it is important to continue to refine and improve specific tri-al rules for divorce litigation by establishing a comprehensive evaluation system for the best in-terests of the child in determining direct custody matters,appropriately expanding the scope of child maintenance and clarifying its payment methods,and improving the considerations for the best interests of the child when it comes to matters related to visitation rights.While acknowled-ging that visitation rights have dual attributes of rights and obligations,the specific reasons and judicial requirements for suspending visitation should be further refined to protect the child's interests.
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