Determining with Whom the Child Should Live after Parents Divorce—Examining Article 36 of Marriage Law in the Background of the Civil Code

Article 36 of Marriage Law and the Supreme People's Court's "Special Opinions on the Treatment of Children's Raising in Divorce Cases by People's Courts" are relatively imperfect in terms of who a child should live with after parents divorce, which leads to certain problems in judicial practice. The principle of children's best interests should be clearly defined in Marriage Complication. At the same time, the legislative ideology of the child-based principle should be infiltrated into various systems of parent-child relationship. Combining the refinement criteria of the principle of best interests of children with the existing experience in China, relevant factors should be considered based on the facts of individual cases when determining with whom a child should live with after parents divorce. The legal terms shall be changed from "custody" to "living with". Based on this, the relevant legal regime and statutory provision should be improved in the Marriage Complication of the Civil Code.