Complexities of Child Custody in Vietnam

1. What is the child custody after divorcing in Vietnam?

According to Article 81 of the Law of Family and Marriage in Vietnam, child custody after divorce includes looking after, caring for, raising, and educating the children.

When parents split up, they retain rights and responsibilities for the care, upbringing, and education of their minor children and adult children who lack legal capacity and cannot work or support themselves financially.

2. Who decides child custody in Vietnam?

The Law of Family and Marriage in Vietnam seems to define child custody as physical custody. One parent is awarded primary custody, but the other is allowed visitation rights on a specific schedule.

The regulations relating to the control over decisions regarding children are not determined in the Laws of Vietnam (legal custody), such as where a child goes to school, what religious training the child has, or what medical treatment a child receives.

a. Agreement Between Parents

The parents can agree with each other about the child's living arrangements, rights, and obligations of each parent after divorce. If parents can not agree, the Court will decide based on all factors relating to the children.

b. The Court

The Court tends to consider and study all factors in the child's best interests when determining who gets the custody and parenting time.

Factors considered by the Courts

(i) The ages and preference

- If a child is under 36 months old, the mother is typically granted primary custody (the mother will live with the child directly) unless she is unable to provide for the child's care adequately or both parents agree on an alternative arrangement that is in the best interests of the child.;

- If a child is at least seven years old, their preferences regarding who will live directly with them will be considered.

(ii) Child's relationship with each parent;

(iii) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest

(iv) The mental and physical health of all people involved

(v) And financial ability.

3. Rights and obligations of the Non-custodial Parent

According to Article 82 of the Law on Marriage and Family, the Rights and obligations of the parent who does not directly raise the children after divorcing are as follows:

a. The parent who does not directly raise a child shall respect the child's right to live with the person who raises him/her.

b. The parent who does not directly raise a child shall support this child.

c. After divorce, the person who does not directly raise a child has the right and obligation to visit and care for this child without being obstructed by any person.

The parent who directly raises a child has the right to request a court to restrict the right of the other parent who does not directly raise this child if the latter takes advantage of his/her visit to and care for the child to obstruct or adversely affect the looking after, care for, raising and education of this child.

4. Child Support and Finacial Responsibility

According to Article 7 of Resolution No.-1/2024/NQ-HDTP dated May 16, 2024, the child support is stimulated by specificities:

a. If the custodial parent does not request child support from the non-custodial parent, the Court shall inform them that such a request is essential to safeguard the child's legitimate rights and interests. If the Court determines that the custodial parent has the financial capacity and resources to provide for the child's needs, and their decision to forego child support is voluntary, the Court shall not compel the non-custodial parent to pay child support.

b. Child support shall cover all expenses for the child's upbringing and education, as agreed upon by both parents. If the parents cannot agree, the Court will determine the child support amount based on the paying parent's income, ability to pay child support, and the child's essential needs. The court-determined child support amount cannot be less than half of the minimum regional wage in the paying parent's place of residence per month for each child.

c. If the parties cannot agree on the method of child support payment, the Court shall determine it as either monthly payments or another method appropriate for the child's needs and interests and the financial circumstances of the parent obligated to pay child support.

d. The obligation of parents to provide child support for their minor children or adult children who are legally incapacitated, unable to work, and do not have the property to support themselves arises from the time the parents no longer live together with the children or live together with the children but violate their obligation to support the child, except where the parties have agreed otherwise.

5. Modifications in Custody Decision

When a custody arrangement has been reached, it's not necessarily set in stone forever. Courts are reluctant to modify agreements too often but will take action to change child custody if there is a material change in circumstances or if the modification would be in the child's best interests. The parent who wants a change must petition the Court to request the custody arrangement modification and need evidence that a change is in the child's best interests.

6. The representative of the children

a. Parents are representatives at law of their minor children or adult children who have lost their civil act capacity, except when the children have other persons to be their guardians or representatives at law.

b. A parent has the right to make transactions on his/her own to meet the essential needs of their minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves.

c. Transactions related to real estate or movable assets with registered ownership or use rights or property used for business activities of minor children or adult children who have lost their civil act capacity must obtain their parent's consent.

7. Restrictions on parents' rights toward their minor children

1. A parent shall have his/her rights toward a minor child restricted when:

a/ He/she is convicted of one of the crimes of intentionally infringing upon the life, health, dignity, or honor of this child or commits acts of seriously breaching the obligations to look after, care for, raise and educate children;

b/ He/she disperses the property of the child;

c/ He/she leads a depraved life;

d/ He/she incites or forces the child to act against law or social ethics.

2. On ạ case-by-case basis, a court shall itself, or at the request of the persons, agencies, or organizations prescribed in Article 86 of the Law on Marriage and Family, issue a decision disallowing a parent to look after, care for and educate a child or manage the child's own property or act as the child's representative at law for between 1 and 5 years. The Court may consider shortening this period of time.

 

DB Legal Lawyers is a leading law firm specializing in family law, Divorce, and child custody in Vietnam.

Our team of knowledgeable and experienced attorneys can help you quickly and peacefully resolve your divorce-related concerns. We can also offer you individualized, thorough legal counsel and assistance at every stage of the procedure.

DB Legal is dedicated to assisting you in getting the most out of Child Custody.

 

This information contained herein is of a general nature and is intended to provide updates on the Laws for information purposes only. DB Legal shall not be liable for any use or application of the information for any business purpose.

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