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Whether grandparents have access to grandchildren

Public number: Lawyer Tongrun Source: Time: 2020-02-21 01:41:39

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First niece

Reprinted from: Hu Yingyang, Jiangsu High Court

case

2010 10 月登记结婚,婚后双方同王某父亲居住与生活。 Mr. Wang (male) and Mr. Zhou registered marriage in October 2010. After the marriage, both parties lived and lived with Mr. Wang's father. 12 月,王某与周某生育一男孩。 In December 2011, Wang and Zhou gave birth to a boy. 7 月,王某因交通事故而死亡。 In July 2013, Wang died of a traffic accident. Since then, the child has been living with his mother in Zhou's family. 1000 元,作为其孙子的抚养费用,其也经常去探望孙子,祖孙关系较为融洽。 During this period, the child's grandfather actively paid Zhoumou 1,000 yuan per month for a long time because of better economic conditions . He often paid visits to his grandson. 2 月,周某再婚,因担心祖孙关系密切而影响其现有夫妻关系,于是便逐渐冷淡疏远孩子的爷爷,自 2016 6 月起,周某直接不允许孩子的爷爷来探望其孙子。 In February 2016, Zhou remarried, fearing that his ancestors and grandchildren would be close, which would affect his current husband and wife relationship, so he gradually indifferently alienated the child's grandfather. Since June 2016, Zhou has not allowed the child's grandfather to visit him directly. grandson. 12 月,孩子的爷爷向法院起诉周某,要求其对孙子行使探望权。 In December 2016, the child's grandfather sued Zhou at the court, asking him to exercise his right of visit to his grandson.

Disagreement

Two different views emerged during the trial:

The first opinion is that Grandpa does not have the right to visit his grandson. “离婚后,不直接抚养子女的父或母,有探望子女的权利,另一方有协助的义务。”,婚姻法只赋予离婚后的不直接抚养子女的父或母对子女享有探望权,而没有赋予祖父母对孙子女享有探望权,而且司法解释也未明确祖父母享有该项权利,由此可见祖父母并不是法律规定的探望权的主体,本案中爷爷不享有对孙子的探望权,因而法院不应支持爷爷的诉求。 Because Article 38, paragraph 1, of the Marriage Law of the People's Republic of China clearly states: "After a divorce, the father or mother who does not directly raise the child has the right to visit the child and the other party has the obligation to assist." The marriage law only grants divorce. Subsequent fathers or mothers who do not directly raise their children have the right to visit their children, but have not granted grandparents the right to visit their grandchildren, and the judicial interpretation has not made it clear that the grandparents have the right to visit. In this case, Grandpa did not have the right to visit his grandson, so the court should not support Grandpa's claim.

The second opinion is that Grandpa should have the right to visit his grandson. The provisions of Article 38 of the Marriage Law of the People's Republic of China only stipulate that the right of visit can only be exercised by a father or mother who does not directly raise the children. However, the current law has no clear prohibition on whether grandparents have the right to visit grandchildren after their parents divorced. According to the principle that there is no prohibition in the law, since the law has no specific restrictions on inter-generational visits, based on the traditional virtues of the Chinese nation and the principles of public order and good customs, Grandpa's request to visit his grandson should be supported.

Comment

The author agrees to the second point of view. The main reasons are as follows:


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First, the nature of the right of visit is an extension of parental rights. It is derived based on the specific identity relationship between parents and children. It is a right set to protect the interests of children. It can be seen that the right of visit is dependent on The right formed by the relationship of status provides a legal basis for near relatives such as grandparents to enjoy the right of visit. The blood relationship between grandparents and grandchildren is not destroyed by the divorce of their parents. It has a special identity based on this special blood relationship, and it also fulfills its grandchildren to some extent outside the parents of minors. Custody and custody of children and grandchildren. Therefore, the visiting rights of grandparents should be protected to a certain extent.

Second, the current "Marriage Law", "General Principles of the Civil Law" and related laws and regulations have no explicit prohibition on whether grandparents or grandparents have the right to visit grandchildren or grandchildren after their divorce. According to the principle that there is no prohibition in the law, grandparents' requests for visiting grandchildren should be supported. “有负担能力的祖父母、外祖父母,对于父母已经死亡或父母无力抚养的未成年的孙子女、外孙子女,有抚养的义务。”之规定,在父母死亡或无力抚养未成年子女时,祖父母或外祖父母对孙子女及外孙子女具有法定的抚养义务。 According to Article 28 of the Marriage Law, "Affordable grandparents and grandparents have the obligation to support minor grandchildren and grandchildren whose parents have died or whose parents are unable to support them." Or inability to raise minor children, grandparents or grandparents have legal childcare obligations for grandchildren and grandchildren. In this case, the grandfather actually assumed part of the obligation to raise his grandson. According to the principle of equal rights and obligations, the grandfather should have a certain right of visit to the grandson.

Third, from the purpose of establishing the right of visit, in order to protect the physical and mental health and emotional needs of minor children, expanding the subject of the right of visit to grandparents can not only meet the emotional needs of grandparents' care, upbringing, and education for grandchildren, but also for their children. The formation of the values has played a positive role, so that it does not violate the original nature and original purpose of the right of visit, and can better achieve the legal and social effects of the right of visit, which is in line with the value orientation of the right of visit and also in line with our tradition Family ethics and kind customs. From the perspective of social ethics and family ethics, grandparents or grandparents visit grandchildren or grandchildren to be human beings, their needs for life, and their spiritual needs. As long as grandparents or grandparents visiting grandchildren or grandchildren will not affect the physical and mental health of the minor, they should be allowed.

Source: She County People's Court

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