Guiding Case No. 229 

Sha [REDACTED] v. Yuan [REDACTED]
(visitation rights dispute)

Keywords: civil; visitation rights; minor; grandparental visitation; an elderly person who has lost his or her child

Key Points of Judgment

If a parent of a minor dies, and a paternal or maternal grandparent sues in the people's court for visitation with his or her grandchildren, the people's court shall uphold the claim in accordance with the law, subject to the paramountcy principle of the child's welfare and familial cohesion, conditional on not affecting the normal life and physical and mental health of the minor.

Basic Facts

Sha [REDACTED] was the mother of Ding [REDACTED], her only son. Ding [REDACTED] married Yuan [REDACTED] in March 2016 and gave birth to twin boys, Ding [REDACTED]A and Ding [REDACTED]B, in January 2018. In July 2018, Ding [REDACTED] died of an illness. Ding [REDACTED]A and Ding [REDACTED]B lived with Yuan [REDACTED]. Sha [REDACTED] communicated with Yuan [REDACTED] many times, requesting visitation with the children, but her request was rejected by Yuan [REDACTED] each time. Sha [REDACTED] sued for visitation with the children on the 1st and 20th days of each month, for two hours each time.

Judgment

On June 18, 2021, the Primary People's Court of Xincheng District of Xi'an City, Shaanxi Province rendered a civil judgment, stating that plaintiff Sha [REDACTED] might visit Ding [REDACTED]A and Ding [REDACTED]B once in the first week of each month, for not more than two hours each time, and that Yuan [REDACTED] should cooperate. After the judgment was pronounced, Yuan [REDACTED] filed an appeal. On September 28, the Intermediate People's Court of Xi'an City, Shaanxi Province rendered a civil judgment, dismissing the appeal and affirming the judgment at first instance.

Reasons for Judgment

Sha [REDACTED] was the grandmother of Ding [REDACTED]A and Ding [REDACTED]B, and her visitation with the children was grandparental visitation. Although China's law was silent on whether a paternal or maternal grandparent had the rights of visitation with his or her grandchild, the rights were closely related to personal relationships and usually arose from blood relations; if a parent of the child died, the close relationship between the grandparent and grandchild would not extinguish by the death of the parent. grandparental visitation was an extension of the parent-child relationship, which was in line with China's traditional family ethics, core socialist values, and public order and good morals. In addition to satisfying the emotional needs of adult relatives for minors, grandparental visitation was also a way for minors to gain more care from their relatives. Especially in this case, Sha [REDACTED]'s only son Ding [REDACTED] passed away. Ding [REDACTED]A and Ding [REDACTED]B were the children of Ding [REDACTED] and Yuan [REDACTED] and Sha [REDACTED]'s grandchildren. Sha [REDACTED] could gain emotional comfort and continue the family relationship by visiting her grandchildren. She would also give more care to the two children. The visitations would contribute to the healthy growth of the minors, and Yuan [REDACTED] should cooperate. Furthermore, the grandparental visitation should facilitate the growth and physical and mental health of the minors and should not affect the normal life of the minors and their mother Yuan [REDACTED]. Therefore, good communication should be done before visitations.

Relevant Provisions

Articles 10, 1043, 1045, and 1086 of the Civil Code of the People's Republic of China