专业团队

由于非婚生子女与婚生子女法律地位平等，所以非婚生子女抚养权的确定方法与婚生子女抚养权的确定方法是一样的。具体来说，主要通过以下两种方法来解决非婚生子女抚养权怎么确定的问题：

(一)父母可以协商确定

非婚生子女抚养权的归属问题属于民事问题，因此当事人有权协商解决。对此，《婚姻法》也有规定说，如双方因抚养问题发生争执不能达成协议时，由法院根据子女的权益和双方的具体情况判决。这就是说，对于非婚生子女抚养权的归属、非婚生子女抚养权怎么确定这样的问题，最好的办法就是父母协商解决。但如果父母对非婚生子女的归属难以达成协议，发生了非婚生子女抚养权纠纷的话，那就只能向法院提起诉讼解决了。

(二)法院按照“有利于孩子健康成长”原则确定

当父母无法就非婚生子女抚养权的归属问题达成协议时，唯一的办法就是向法院提起诉讼。法院在具体的审判中，会依据非婚生子女的年龄以及“有利于孩子健康成长”原则来确定非婚生子女抚养权的归属。

1、非婚生子女抚养权归谁?两周岁以下一般由女方取得抚养权。

对于两周岁以下的非婚生子女，考虑到其尚处于哺乳期或者更需要母亲的照顾，所以两周岁以下的非婚生子女的抚养权一般归属于母亲。当然，这也不是绝对的，如果母方有下列情形之一的，法院也可以判决孩子随父方生活：

(1)患有久治不愈的传染性疾病或其他严重疾病，子女不宜与其共同生活的;

(2)有抚养条件不尽抚养义务，而父方要求子女随其生活的;

(3)因其他原因，子女确无法随母方生活的;

(4)父母双方协议两周岁以下子女随父方生活的，并对子女健康成长无不利影响的。

2、非婚生子女抚养权归谁?两周岁以上优先考虑条件较好的一方。

对于两周岁以上的未成年非婚生子女，如果父方和母方均要求取得抚养权的，则法院会严格地按照“有利于子女健康成长”的原则确定非婚生子女抚养权的归属。下列情节可以作为法院优先考虑的因素：

(1)已做绝育手术或因其他原因丧失生育能力的;

(2)子女随其生活时间较长，改变生活环境对子女健康成长明显不利的;

(3)无其他子女，而另一方有其他子女的;

(4)子女随其生活，对子女成长有利，而另一方患有久治不愈的传染性疾病或其他严重疾病，或者有其他不利于子女身心健康的情形，不宜与子女共同生活的。

(5)父方与母方抚养子女的条件基本相同，双方均要求子女与其共同生活，但子女单独随祖父母或外祖父母共同生活多年，且祖父母或外祖父母要求并且有能力帮助子女照顾孙子女或外孙子女的，可作为子女随父或母生活的优先条件予以考虑。

3、非婚生子女抚养权归谁?对于十周岁以上的未成年子非婚生子女，应当考虑其本人的意见。

Due to the equal legal status of illegitimate children and legitimate children, the method for determining the custody of illegitimate children is the same as that of legitimate children. Specifically, there are two main methods to address the issue of determining the custody of children born out of wedlock:

（1） Parents can negotiate and determine

The issue of the ownership of custody rights for children born out of wedlock is a civil issue, and therefore the parties have the right to negotiate and resolve it. In this regard, the Marriage Law also stipulates that if there is a dispute between the two parties over custody and they cannot reach an agreement, the court shall make a judgment based on the rights and interests of the children and the specific circumstances of both parties. That is to say, the best way to determine the ownership of custody for children born out of wedlock and how to determine custody for children born out of wedlock is for parents to negotiate and resolve the issue. But if parents find it difficult to reach an agreement on the ownership of children born out of wedlock, and there is a dispute over the custody of children born out of wedlock, then they can only file a lawsuit to resolve it.

（2） The court determines based on the principle of "benefiting the healthy growth of children"

When parents are unable to reach an agreement on the ownership of custody of children born out of wedlock, the only way is to file a lawsuit in court. In specific trials, the court will determine the ownership of custody rights for children born out of wedlock based on the age of the child and the principle of "promoting the healthy growth of the child".

1. Who owns the custody of children born out of wedlock? Under the age of two, custody is generally obtained by the female party.

For children born out of wedlock under the age of two, considering that they are still breastfeeding or require more care from their mother, the custody of children born out of wedlock under the age of two generally belongs to their mother. Of course, this is not absolute either. If the mother has any of the following circumstances, the court can also order the child to live with the father:

(1) Children who suffer from incurable infectious diseases or other serious illnesses and are not suitable for living with them;

(2) Those who have the conditions for upbringing but fail to fulfill their obligation of upbringing, and whose parents require their children to live with them;

(3) For other reasons, children are unable to live with their mother;

(4) If both parents agree that their children under the age of two live with their parents and have no adverse effects on their healthy growth.

2. Who owns the custody of children born out of wedlock? Priority will be given to those over two years old who have better conditions.

For underage children born out of wedlock who are over two years old, if both the father and mother request custody, the court will strictly determine the ownership of custody of the daughter born out of wedlock based on the principle of "promoting the healthy growth of the child". The following circumstances can be given priority consideration by the court:

(1) Those who have undergone sterilization surgery or have lost their fertility due to other reasons;

(2) Children who live for a long time and change their living environment are significantly detrimental to their healthy growth;

(3) If there are no other children, but the other party has other children;

(4) Children who live with them are beneficial for their growth, while the other party suffers from incurable infectious diseases or other serious illnesses, or other conditions that are not conducive to their physical and mental health, and is not suitable to live with their children.

(5) The conditions for raising children by the father and mother are basically the same. Both parties require the children to live together, but if the children live alone with their grandparents or maternal grandparents for many years and the grandparents or maternal grandparents request and have the ability to help the children take care of their grandchildren, it can be considered as a priority condition for the children to live with the father or mother.

3. Who owns the custody of children born out of wedlock? For children over ten years old who are not born out of wedlock, their own opinions should be considered.