Two moms, a choose and an outcry over custody rulings

Two Chinese women are dealing with a man – a judge who they claim has ruled against them on custody cases because of his prejudice against women.

Mothers Wei Wei and Dai Xiaolei shared their stories publicly on Mother’s Day last weekend, saying the verdicts deprived them of their motherhood. Under Chinese law, courts usually rule in favor of mothers of young children in custody cases.

“On Mother’s Day, we would like to say that (the judge) has misused his discretion and violated the express provisions of the law, ignored the interests of women and children, and displayed serious personal prejudice against the verdict,” wrote Wei and Dai together Post on the microblogging platform Weibo. “His judgment was obviously unfair.”

The two women plan to file a formal complaint with the Beijing Supreme People’s Court against Zhang Shuaibin, the district court judge whom they accuse of bias against women.

In 2019, Zhang ruled against Wei – who was not married to her partner – and granted the father custody of the couple’s 18-month-old son. The court said the father was better financially prepared to raise the child and looked after him prior to the custody process, according to Sixth Tone’s ruling.

Three years earlier, in 2016, the same judge against Dai, who is Sino-Canadian, ruled that this was “in the best interests of the child” according to this judgment, which was also seen by Sixth Tone. Custody was granted to her ex-husband, whom she reported to the police several times for domestic violence.

The two mothers met online two years ago and formed an alliance after finding out their cases were about the same judge. They have found mutual support and hope that the judicial system will not only reverse Zhang’s sentences but also investigate him.

Dai Xiaolei is waiting in a hotel lobby with gifts for her child on May 3, 2021. Courtesy of Dai Xiaolei

Yang Dadi, a Shanghai-based attorney who specializes in family law, told Sixth Tone that it may be difficult to prove that the judge’s decisions were influenced by personal bias.

“The court doesn’t decide a case based on a single issue, so it’s difficult to simply compare two different cases,” said Yang, who is also a member of the Shanghai Bar Association’s Minor Rights Research Committee.

Regarding a 2014 case, the attorney said a Chinese court ruled that abusive parents could hinder a child’s growth, suggesting that the verdict might have been in Dai’s favor. “But China does not do justice,” Yang said, referring to when courts consider previous decisions in new judgments. “That means (Chinese) dishes don’t necessarily have to follow precedents.”

In countries like the UK, an unmarried mother is given custody of her child by default, while the father must initiate legal proceedings to pursue those rights. In China, the country’s civil code stipulates that children under the age of 2 must be raised by their mother regardless of their marital status – although Wei has still lost her custody battle.

Since the two mothers shared their post online, thousands of people have come forward to support them, claiming that women are still often overlooked in Chinese society.

Deprivation of custody of mothers not only violates children’s rights, but also treats women as substitutes for men.

“Mothers’ removal of custody not only violates children’s rights, it also treats women as substitutes for men,” said a Weibo user who shared the post.

Li Ying, a lawyer specializing in women’s rights who served as Wei’s legal adviser, told Sixth Tone that China’s custody cases consider what is best for the child – which the United Nations High Commissioner’s Office for Human Rights has also emphasized – as the main factor when deciding on guardianship disputes. She added that judges who rule in such cases might consider women’s rights as secondary in balancing their judgments.

“Judges’ gender awareness needs to be improved,” said Li. “I would like all judges dealing with marriage and family cases to receive gender awareness training.”

Meanwhile, Wei and Dai say that one stroke of Judge Zhang’s pen changed their lives. Both are concerned that they are now caught in a legal crossfire that may prevent them from being part of their children’s lives in the future.

Wei has joint custody until their 3-year-old son turns 5, but she fears that the boy’s father could take him abroad if he gets full custody. Dai’s visiting rights, on the other hand, only allow her to visit her child twice a year for one hour each time.

“My son is 8 years old, which means that from now until he is 18 I can only spend 20 hours with him,” said Dai tearfully. “I can’t help but wonder if I was just a free replacement.”

Editor: Bibek Bhandari.

(Header image: Visual elements from RUNSTUDIO and Akini / People Visual, revised by Ding Yining / Sixth Tone)

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