Upon divorce, in addition to dispute over property division, child
custody dispute is also popular. How to determine the
child custody in a divorce depends
on many factors and the parties are suggested to consult with dispute lawyers in
Vietnam in civil
matters. The following does not try to give legal advice but a brief
opinions on the matters of concern for reference.
According to Vietnamese law, after a divorce, parents still have
rights and obligations of looking after, caring for, raising and educating
minor children or adult children losing their legal capacity or having no
working capacity and no property to support themselves. The law always
prioritizes agreement right of both parties. Accordingly, husband and wife
shall reach agreement on the person who directly raises their children and on his
and her obligations and rights toward their children after divorce. If they
fail to reach agreement, the Court shall appoint one party to directly raise
the children, based on the children’s benefits in all aspects. If a child is
full 7 years or older, his/ her desire shall be considered. In addition, a
under-36-months child shall be directly raised by the mother, unless the mother
can not afford to directly look after, care for, raise and educate the child or
otherwise agreed by the parents in accordance with the interests of the child.
In reality, opinion of the children is only
regarded as orientation and reference for the Court to consider making
decision, not as completely decisive meaning. The Court shall base on interests
of the children to appoint one party to directly raise him/her, according to:
living, current education of the children, occupation of the direct caretaker,
accommodation condition after divorce, income, child care time… and some other
elements of each party. Accordingly, the person being entitled to directly
raise the children must prove themselves to provide the most favorable
environment for normal development requirements of the children and have enough
conditions for ensuring both economy and mental health. The person being entitled
to directly raise the children must prove themselves to have enough material
conditions (stable income, property, and accommodation…), mental condition
(having enough time to be with the children, care for, raise them, always put
the children at the forefront…) to make the children have more stable life and
more developed than living with the other party. In addition, one of the
parties can provide additional evidence to prove that the other party does not
have enough material conditions and mental condition to raise the children or
often has behaviors of violence, unstable income…
In case of request of a parent or individual, organization being
entitled to request (Next of kin; The state management agency in charge of
families; The state management agency in charge of children; The women’s
union), the Court may decide to change the person directly raising a child. The
change of the person directly raising a child shall be settled if there is one
of the following grounds: (i) The parents agrees on change of the person
directly raising a child in the interests of this child; (ii) The direct
caretaker no longer has sufficient conditions to directly look after, care for,
raise and educate the child. Like divorce settlement, desire of full-7-years or
older child shall be considered in case of changing the person directly raising
a child. Seeing that both parents fail to have sufficient conditions to
directly raise a child, the Court shall decide to assign this child to a
guardian.
Obligations and rights of indirect caretaker after divorce: (i)
Respect the child’s right to live with the direct caretaker; (ii) Support this
child; (iii) Visit and care for this child without being obstructed by any
person after divorce. Direct caretaker is entitled to require the Court to
restrict the right of the indirect caretaker if the latter takes advantage of
his/her visit to and care for the child to prevent or adversely affect the
looking after, care for, raising and education of this child.
In accordance with obligations and rights of
indirect caretaker, direct caretaker also has obligations and rights toward
indirect caretaker after divorce: (i) require the indirect caretaker to fulfill
the obligations; (ii) require this person and family members to respect his/her
right of raising the child; (iii) The direct caretaker and family members shall
not prevent indirect caretaker from visiting, caring for, raising and educating
this child.
ANT Lawyers - Marriage and Family dispute lawyers in Vietnam, recognized by Legal500, IFLR1000. We are an
exclusive Vietnam member of Prea Legal, the global law firm network covering
more than 150 jurisdictions. The firm provides a range of legal services to
multinational and domestic clients.
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