Two Mothers Fight for Custody: Biological Mother Loses, Stepmother Wins
[Lead Attorney: Zhiming Law Firm]
[3] 1. Case Background
One day in May 2010, a lawyer from Guangdong Zhiming Law Firm received a weary and distraught Ms. Duan, who recounted a child custody dispute case that was set for second-instance trial in three days. The background of the case was as follows:
Ms. Duan's late husband, Zhang XX, met a woman, Huang XX, in 1999 and began an intimate relationship. In 2001, Huang XX gave birth to a son, Zhang X Long. Zhang XX purchased a residence for Huang XX and gave her large amounts of money. In the spring of 2004, Zhang XX and Huang XX reached an agreement to place their illegitimate son, Zhang X Long, into Zhang XX's custody. Zhang XX brought Zhang X Long home and handed him to his wife, Ms. Duan, who has raised him ever since. On May 25, 2009, Zhang XX passed away. Shortly afterward, Huang XX filed a lawsuit in court, requesting that the court restore her custody of Zhang X Long, and submitted the agreement made in the spring of 2004. While sorting through her late husband's belongings, Ms. Duan discovered evidence that he had unilaterally disposed of marital property in favor of Huang XX. She accordingly entrusted lawyers to file two lawsuits for the return of property, including monetary funds, vehicles, and real estate. Zhang XX's extramarital affair thereby gave rise to three disputes involving property ownership and child custody. Ms. Duan's two lawsuits for the return of property were unsuccessful in both the first and second instances, while Huang XX's lawsuit for custody of Zhang X Long succeeded at first instance. Dissatisfied, Ms. Duan filed an appeal. Custody is closely related to inheritance rights: if the second instance ruled in favor of Huang XX, she would not only have custody of Zhang X Long, but would also enjoy the direct benefit of Zhang X Long inheriting his biological father Zhang XX's substantial estate. At that time, Ms. Duan had not yet emerged from the shadow of grief over her husband's death. The losses in the two property-return cases had left her physically and mentally exhausted; moreover, if she lost the custody case on appeal, not only would her ten years of raising Zhang X Long have been rendered futile, but she would also face the loss of both the child and the property. In particular, her foster son had already become her emotional sustenance, and losing custody would undoubtedly make her situation even worse. Ms. Duan was extremely anxious and sleepless with worry. Three days before the second-instance hearing, through an introduction, Ms. Duan instead entrusted Attorney Zhiming, the director of Guangdong Zhiming Law Firm. Attorney Zhiming, together with his assistant, Attorney Cao Guanghui, actively responded to the lawsuit.
II. Won the Second Instance
After accepting the commission, Zhiming lawyers promptly applied to the court for the substitution of the attorney of record and urgently applied for pre-trial access to the case files. After reviewing the files, the two lawyers conducted a comprehensive analysis of the case and concluded that Huang XX was undoubtedly the biological mother of Zhang X Long, and that the request for paternity testing filed in the original appeal could at most serve to delay proceedings and was of no benefit to the client's claims; they therefore decisively applied to withdraw the paternity testing request. The two lawyers determined that the nature of the case was a custody dispute. In accordance with the fundamental principle of being conducive to the healthy growth of Zhang X Long, and taking into account the specific facts that the client had raised Zhang X Long for nearly ten years and that Zhang X Long was also willing to continue living with the client, the two lawyers obtained evidence through the school, the workplace, friends, and other channels demonstrating that continued custody by the client, Duan XX, would be more conducive to the child's education and development. During the second-instance trial, the two lawyers not only presented substantial supporting evidence but also requested that the court solicit the wishes of the child, Zhang X Long, in court, emphasizing that continued custody by Ms. Duan would be more conducive to the child's healthy growth, while also pointing out that Huang XX's fight for custody was intended to obtain Zhang XX's estate. The second-instance proceedings featured intense debate between both parties. In December 2010, the Shenzhen Intermediate People's Court issued a final judgment overturning the erroneous first-instance judgment, and the client prevailed, continuing to raise her adopted son Zhang X Long.
III. Case Analysis
两律师坚持本案为抚养权纠纷是正确的，并最终得到二审法庭的支持。抚养权并不等同于监护权。一审法院适用《民法通则》中第16条有关生母监护权的一般规定和 《收养法》中有关”收养人”和”被收养人”条件的一般规定判决此案是错误的。抚养权不等同于监护权。如果把委托人和张X龙作为两个事前没有关联的独立个体 来看，确实不符合《收养法》中有关”收养人”和”被收养人”条件，但是委托人和张X龙之间的关系是基于委托人与先夫张XX之姻亲，而张XX与张X龙之间的 血亲串连形成的事实抚养行为中产生的继母子关系，并且委托人抚养张X龙是经过其生母黄XX书面同意的。本案中委托人抚养张X龙不但不违反《收养法》，恰恰 符合《收养法》第14条规定的”继母经继子的生母同意，可以收养继子女”的特殊情形。由于两律师据实依法进行的一系列艰苦努力，委托人终获胜诉，不但保住 了继子的抚养权，而且保住了先夫的遗产。事后，委托人段女士特制作锦旗，上书“义正知明树楷模，剑胆琴心律先锋”，登门赠送知明律师，感谢知明律师的高超 技能和敬业精神!
