Vietnam: Will mothers/maternal grandparents regain custody of their children/grandchildren after the Court has decided to hand over their children/grandchildren to their fathers?
Can the mother regain custody of the child after the Court decides who directly raises the child?
Pursuant to Article 84 of the 2014 Law on Marriage and Family of Vietnam stipulating as follows:
Change of the person directly raising children after divorce in Vietnam
1. At the request of a parent or a person or an organization prescribed in Clause 5 of this Article, a court may decide to change the person directly raising a child.
2. Change of the person directly raising a child shall be settled when there is one of the following grounds:
a/ The parents agrees on change of the person directly raising a child in the interests of this child;
b/ The person directly raising the child no longer has sufficient conditions to directly look after, care for, raise and educate the child.
3. Upon change of the person directly raising a child aged full 7 or older, this child’s desire shall be taken into account.
4. When seeing that both parents fail to have sufficient conditions to directly raise a child, a court shall decide to assign this child to a guardian in accordance with the Civil Code.
5. When there is the ground prescribed at Point b, Clause 2 of this Article, in the interests of a child, the following persons, agencies or organizations have the right to request change of the person directly raising this child:
a/ Next of kin;
b/ The state management agency in charge of families;
c/ The state management agency in charge of children;
d/ The women’s union.
Thus, change of the person directly raising a child shall be settled when there is one of the following grounds:
- The parents agrees on change of the person directly raising a child in the interests of this child;
- The person directly raising the child no longer has sufficient conditions to directly look after, care for, raise and educate the child.
- When seeing that both parents fail to have sufficient conditions to directly raise a child, a court shall decide to assign this child to a guardian.
Thus, if the mother wants to regain custody of the child, the husband and wife can reach an agreement to come to a final decision, and can ask the Court to change the person directly raising the child in accordance with the child's interests.
The agreement to change the person directly raising this child of the husband and wife must come from the voluntariness of both parties, from the interests of the child.
In case the husband and wife cannot reach an agreement on the change of the person directly raising the child, it must be proved that the person directly raising the child no longer has direct conditions to nurture, care for and educate children, affecting the children's rights and interests and request the court to decide on the change of the person directly raising the children.
Vietnam: Will mothers/maternal grandparents regain custody of their children/grandchildren after the Court has decided to hand over their children/grandchildren to their fathers?
Can maternal grandparents regain custody of their grandchildren after the Court has decided the person who directly raises the grandchildren?
Pursuant to Clause 5, Article 84 of the 2014 Law on Marriage and Family of Vietnam stipulating as follows:
Change of the person directly raising children after divorce in Vietnam
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5. When there is the ground prescribed at Point b, Clause 2 of this Article, in the interests of a child, the following persons, agencies or organizations have the right to request change of the person directly raising this child:
a/ Next of kin;
b/ The state management agency in charge of families;
c/ The state management agency in charge of children;
d/ The women’s union.
Thus, grandparents have the right to request the change of the person directly raising the grandchild.
Pursuant to Article 52 of the 2015 Civil Code of Vietnam stipulating as follows:
Natural guardians of minors
A natural guardian of a minor prescribed in Points a and b Clause 1 Article 47 of this Code shall be determined as follows:
1. The eldest brother or sister shall be the guardian of the ward; if the eldest brother or sister fails to satisfy all requirements for acting as a guardian, the next eldest brother or sister shall be the guardian, unless otherwise agreed that another biological brother or sister shall be the guardian;
2. If there is no guardian prescribed in Clause 1 of this Article, the paternal grandfather, grandmother or the maternal grandfather, grandmother shall be the guardian; or those persons shall agree to appoint a person or some persons to be guardian(s);
3. If there is no guardian prescribed in Clause 1 and Clause 2 of this Article, a biological uncle or aunt of the ward shall be the guardian.
Pursuant to Article 47 of the 2015 Civil Code of Vietnam stipulating as follows:
Wards
1. Wards include:
a) Minors who have lost their mothers and fathers, or whose parents are unidentifiable;
b) Minors whose parents are both incapacitated persons; parents have limited cognition or behavior control; parents have limited capacity of exercise; parents have their parental rights restricted by a court; and parents do not have the means to care for or educate such minor and the parents request the minor to be a ward;
c) Incapacitated persons;
d) Persons with limited cognition or behavior control.
2. A person may only be a ward of one guardian, except where the guardians are parents in charge of one child or grandparents in charge of one grandchild.
Thus, grandparents can request to change the person directly raising the child in case there are grounds at point b, clause 2, Article 84 of the 2014 Law on Marriage and Family of Vietnam, but the grandchild will be assigned to the guardian grandparent when the natural guardian of the minor falls under the case in Article 47 of the 2015 Civil Code of Vietnam and the siblings do not have enough conditions to act as guardians.
Which agency is competent to handle the change of person directly raising children?
Pursuant to Clause 1, Article 84 of the 2014 Law on Marriage and Family of Vietnam stipulating as follows:
Change of the person directly raising children after divorce in Vietnam
1. At the request of a parent or a person or an organization prescribed in Clause 5 of this Article, a court may decide to change the person directly raising a child.
According to that, disputes or requests to change the person directly raising children after divorce fall under the jurisdiction of the Court.
At the same time, Point i, Clause 2, Article 39 of the 2015 Civil Procedure Code of Vietnam stipulates as follows:
Territorial jurisdiction of courts
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2. Territorial jurisdiction of Courts to settle civil matters shall be determined as follows:
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i) The Court of the area where one of the parties that petitions the Court to recognize their agreement on change of post-divorce child custodian resides or works shall have the jurisdiction to resolve that petition.
If the agencies, organizations and individuals petition for the change of post-divorce child custodian, the Court where the child resides shall have the jurisdiction to resolve that petition;
Thus, the jurisdiction to settle the change of the person directly raising the child is the district-level People's Court where either party has agreed to change the child custody to reside or work or the district-level court where the child is currently residing.
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