When the parties to the marriage dispute dissolve the marriage relationship, if they cannot reach an agreement on which party to live with the children who do not have the corresponding identification ability after lactation, and the two parties respectively claim to raise the children or shirk the support at the same time, the people's court may compete or bid in court during the trial. Such marital disputes include all kinds of divorce disputes and disputes over the termination of illegal cohabitation.

Establish the meaning of the rule

Due to the implementation of the family planning policy, Chinese society has entered the first generation of the one-child family formation of the historical stage, this phenomenon in the coastal areas, the majority of cities and towns especially prominent. The parties concerned can not reach an agreement on the custody of the children at the time of dissolution of marriage, and the differences are relatively large. The previous practice was to seek the opinion of the child who had the ability to identify the child, the child during the lactation period was judged to live with the woman in principle, and the child who did not have the ability to identify after the lactation period was judged by the judge according to the expression of the will of both parties, the current situation of the child, the ability of both parties, traditional customs and factors to take care of the woman. It is inevitable that one of the parties is not satisfied and has strong opinions. Some cases are suspected of covert manipulation, causing appeals or entanglements, and even directly causing greater mental damage to minor children.

2. Establish the legal basis for the Rules

1, the parental relationship between parents and children is mainly based on blood relationship and so on, both men and women jointly pregnant children, children should enjoy equal parental rights, upbringing rights and responsibilities. Article 23, Article 25, paragraph 1, and Article 27, paragraph 2 of the Marriage Law clearly stipulate that parents have the right and obligation to protect and educate their minor children at the same time.

(2) The exercise of civil rights shall be fully publicized in accordance with the law. The laws regulating marriage and family relations in our country are mainly the general principles of civil law, marriage law and related judicial interpretations. These laws guarantee that both parties to a marriage fully enjoy equal rights under the premise of protecting the rights and interests of children. The exercise of parental and custody rights should not be subject to extrajudicial restrictions and deprivation. Therefore, the people's court should minimize "free heart evidence" when determining who directly raises children.

3. In accordance with the provisions of Article 36 (2) of the current Marriage Law, if the two parties cannot reach an agreement due to a dispute over the upbringing of a child after lactation, the people's court shall make a judgment according to the rights and interests of the child and the specific circumstances of the two parties. This provision establishes the final adjustment of judicial power. The author believes that judicial power pursues justice, fairness and openness. It is better for the judicial power to establish a transparent and fair competition mechanism to seek justice in accordance with the law, rather than directly free judgment.

Third, the specific rules of competition mechanism

1. Both parties advocate child support. Each party shall state the possibility, favorable conditions, and conditions for exempting the other party from obligations of the child. Allow one party to question, state or even prove their claims. One party's offer to maximize the protection of children's rights wins.

2, the law of China is against the abandonment of family members, parents should do their duty to their children. However, in reality, there are subjective and objective factors such as this and that, and both sides do not take the initiative to directly raise children. In handling cases, the people's court should resolve contradictions, try to avoid socialization of family contradictions, and safeguard the rights and interests of children. Establish a bidding mechanism, children live with each other, what protection should be provided by one party, what material obligations should be fulfilled. The one who gives the most material advantages wins.

Fourth, after the relief

The children living with one party after the competition and bidding shall have factual effect. However, after the children live with one party, if there is a situation that is not conducive to the growth of the children or the direct caregiver is unable to support the situation, the other party or the children may, in accordance with Article 37, paragraph 2 of the Marriage Law and relevant civil policy provisions, separately Sue or negotiate on issues such as maintenance costs or change of maintenance relationship.