Judgment No. 727/2020/HNGD-ST dated june 29, 2020 on dispute over child custody of cohabiting couple

THE PEOPLE’S COURT OF BINH THANH DISTRICT, HO CHI MINH CITY

JUDGMENT NO. 727/2020/HNGD-ST DATED JUNE 29, 2020 ON DISPUTE OVER CHILD CUSTODY OF COHABITING COUPLE

On June 22 and 29, 2020, at the headquarters of the People's Court of Binh Thanh District, Ho Chi Minh City, a public first-instance trial is conducted according to the normal procedures of the case No. 2336/2019/TLST-HNGD dated December 13, 2019 on "Dispute over child custody of cohabiting couple" according to the Decision to Bring the Case to Trial No. 97/2020/QDXXST-HNGD dated May 21, 2020, among the involved parties:

1. Plaintiff:  Mr. G.J.D.E., born in 1972, Address: City Garden, 59 Ngo Tat To, Ward 21, Binh Thanh District, Ho Chi Minh City.

2. Respondent: Mrs. T.T.K.D., born in 1991, Address: City Garden, 59 Ngo Tat To, Ward 21, Binh Thanh District, Ho Chi Minh City.

3. Interpreter:  Mrs. H.T.B.D., born in 1967, Address: AA Street 2, Phuoc Thien Quarter, Long Binh Ward, District 9, Ho Chi Minh City.

FACTUAL AND PROCEDURAL BACKGROUND

* Representation of the plaintiff, Mr. G.J.D.E., interpreted by Ms. H.T.B.D.:

The plaintiff wants to be the person who directly cares, nurtures and educates L.A.T.E. (the kid) in the present and in the future in the best way.  Currently, the child is suffering from psychological trauma, certified by a psychologist from Learning Strategies, at 70 Nguyen Cu Street, Thao Dien Ward, District 2, Ho Chi Minh City.  Earlier, the kid did not have symptoms of this disease until he witnessed his mother's violent acts.  In the letter sent by the psychologist, it was clearly stated that the kid should avoid acts of violence and aggression between the father and the mother.

For the care of L.A.T.E., the plaintiff has a maid, a driver and he also spends time on taking care of the kid every day including:  chatting, reading, having dinner and helping the kid sleep every day.  The plaintiff has been taking care of L.A.T.E. from the time he was born so far, even when he was on a business trip abroad, he also took the baby with him.  During the cohabitation time, the defendant has repeatedly run away from home for many days and he was the one who directly took care of the L.A.T.E. in that time.

He is the General Director in charge of seven different countries, so he has the right to decide whether or not to go on business because his work is mainly done on computers, each time he goes on business, he has staff to take care of the kid. On average, he goes on business trips once or twice a month, 2 to 3 days per trip. So, in order to ensure the best interests of the child, the plaintiff asks the Court to award him primary physical custody and give the kid’s mother rights of visitation.

* Representation of Mrs. T.T.K.D:

In the voluntary statement dated February 21, 2020, Mrs. T.T.K.D. admitted she got into a courtship with Mr. G.J.D.E. in 2015 for a while, and then they had baby L.A.T.E. in later 2016. Since Mr. G.J.D.E. has an official wife and 03 daughters in Singapore and they have not been divorced, so Mr. G.J.D.E. and she cannot get a marriage certificate.  During their cohabitation time, they have got many conflicts and their relationship has irretrievably broken down, so she decided to leave and wanted the baby L.A.T.E. be at peace and will not witness the quarrel of parents anymore.  She agreed to let Mr. G.J.D.E. raise the kid with conditions: On Wednesday, she can pick up the kid to the draw class from 16:00 to 19:00; From 8:00 p.m. on Saturday to 7:00 p.m. on Sunday, the kid may stay with her and only two of them spend time together, not in the presence of Mr. G.J.D.E. as well as the driver or the maid; Request the Court to allow her to take her child to visit her family in Da Lat and take the secondary custody of L.A.T.E .; she wants Mr. G.J.D.E. let her know when the baby is sick or only bring the baby abroad with her prior consent; she wants to be the one who takes care of L.A.T.E. when Mr. G.J.D.E. goes aboard.

In the record of reconciliation dated March 5, 2020, Mrs. T.T.K.D. changes her opinions as follows:  She opposes the plaintiff's petition. She wants the primary custody of the child because she wants to bring the best to L.A.T.E.  Since the kid’s birth to his three years of age, she has physically taken care of the kid from eating, bathing and other stuff, the maid only helps a bit. Because the child is a girl and she is the one who understands and takes care of the child best, it is the best and most convenient to let her take care of the child physically. For work, the plaintiff goes on business a lot, so it is not good to bring the child with him or leave the child with the maid.

In the statement dated May 17, 2020 sent to the Court by postal service on May 19, 2020 and June 12, 2020, Ms. T.T.K.D. agreed to cede the right to bring up L.A.T.E. to Mr. G.J.D.E. because Mrs. T.T.K.D will no longer reside in Ho Chi Minh City for the job transfer, with the following conditions: Every Wednesday afternoon at 5:00 pm, he must let her meet and talk to L.A.T.E. via video call; Let L.A.T.E. celebrate Lunar New Year - Vietnamese traditional New Year in her hometown in two weeks if L.A.T.E. is not busy with class schedules; let L.A.T.E. meet her in two weeks during the summer break; when L.A.T.E. spends time with her, request Mr. G.J.D.E. not to be present, but just the time between two of them; every time she visits L.A.T.E., she will send an email in advance to Mr. G.J.D.E. from one to two weeks so as not to affect Mr. G.J.D.E.'s physical and primary child custody, request Mr. G.J.D.E. not to make it difficult and to enable her to be close to, indirectly teach and love her child.

* Opinion of the representative of the People's Procuracy of Binh Thanh District, Ho Chi Minh City:

The plaintiff, Mr. G.J.D.E. sued the defendant, Ms. T.T.K.D., residing in Binh Thanh District over a child custody dispute, and Mr. G.J.D.E. and Ms. T.T.K.D. have cohabited as husband and wife without marriage registration, so it is right when the People's Court of Binh Thanh District accepted and handled it under its jurisdiction. Since the acceptance to the trial today, the Judge, People's Jurors, and Court Clerk have complied with the provisions of law.  The involved parties received the court’s papers to exercise their rights and perform their obligations in accordance with the civil procedure law.  Regarding the content, the Procuracy proposes the Trial Panel to consider accepting the petition of the plaintiff:  Grant the physical custody of L.A.T.E., born on September 18, 2016 to Mr. G.J.D.E.; the defendant must bear the court fee as provided for by law.

JUDGEMENT OF THE COURT

After considering the documents contained in the case files which have been verified at the trial and based on the results of the oral argument at the trial, the Trial Panel determines:

At the trial, the plaintiff, Mr. G.J.D.E. keeps the lawsuit against Mrs. T.T.K.D., applying for the physical custody of L.A.T.E., born on September 18, 2016, without asking Mrs. T.T.K.D. to provide child support.

[1] Regarding jurisdiction to resolve the case:

According to the affirmation of the involved parties, Mr. G.J.D.E. and Mrs. T.T.K.D. have cohabited as husband and wife since 2015 but did not register their marriage and had a child named L.A.T.E., born on September 18, 2016, so there is no legal marriage between Mr. G.J.D.E. and Mrs. T.T.K.D., the Court resolves the dispute over child custody when there is a petition for lawsuit. Consider Mr. G.J.D.E. suing Mrs. T.T.K.D, whose address is located at Ward 21, Binh Thanh District, seeking the physical custody of L.A.T.E.  Pursuant to clause 7 Article 28, point b clause 1 Article 35, clause 1 Article 39 of the Civil Procedure Code, it is determined that this is a marriage and family dispute under the jurisdiction of the People's Court of Binh Thanh District, Ho Chi Minh City.

[2] Regarding the absence of the defendant, Mrs. T.T.K.D .:

Considering the defendant’s request for trial in absentia dated May 17, 2020 because of her job transfer and her statement dated May 17, 2020, according to Clause 1 Article 228 of the Civil Procedure Code, the Court finds just cause to hear the case in her absence.

[3] Regarding the lawsuit petition of the plaintiff:

According to the documents in the case file and the affirmation of the involved parties, L.A.T.E., born on September 18, 2016, is the common child of Mr. G.J.D.E. and Mrs. T.T.K.D ..

According to the parties' statements in the process of resolving the case and the plaintiff's affirmation at the trial, L.A.T.E. is living with Mr. G.J.D.E. at City Garden, 59 Ngo Tat To, Ward 21, Binh Thanh District, Ho Chi Minh City; L.A.T.E. is studying at Aurora International Preschool of The Arts, at 13 Tran Ngoc Dien, Thao Dien Ward, District 2, Ho Chi Minh City.

In the statement dated May 17, 2020, the defendant Mrs. T.T.K.D. admits that she no longer lives in Ho Chi Minh City because of job transfer, so she agrees that Mr. G.J.D.E. may take the physical custody of L.A.T.E., but she still has the rights of the non-custodial parent.

Consider that L.A.T.E. has been living and studying in Ho Chi Minh City since birth until now and has been directly raised and taken care by Mr. G.J.D.E., and at the same time Mrs. T.T.K.D. no longer lives in Ho Chi Minh City due to her job change, and Mrs. T.T.K.D. agrees to give the child L.A.T.E. to Mr. G.J.D.E., the Trial Panel finds just cause to let L.A.T.E. continue to live with Mr. G.J.D.E. in Ho Chi Minh City for his life stability and normal development.

At the hearing, the plaintiff Mr. G.J.D.E. also agrees to facilitate the defendant Mrs. T.T.K.D.’s right of visitation, care giving and education of the common child according to the provisions of law. This is suitable with request of the defendant Mrs. T.T.K.D. In the statement dated May 17, 2020 regarding the guarantee of the rights of the non-custodial parent, the Trial Panel finds that: The rights of visitation, care giving and education of the child of Mrs. T.T.K.D will be respected without the interference of Mr. G.J.D.E as prescribed in Article 82 of the Law on Marriage and Family. Therefore, the proposal of the representative of the People's Procuracy of Binh Thanh District is grounded.

From the above analysis, the Trial Panel finds just cause to award of child physical custody to Mr. G.J.D.E.  Mrs. T.T.K.D. has the rights of visitation, care giving and education without any interference; in the case where Mrs. T.T.K.D. misuses this right to interfere or adversely affect Mr. G.J.D.E.’s physical custody, he or any individual or organization defined in Article 86 of the Law on Marriage and Family has the right to request the Court to restrict the defendant’s right of visitation of minor child.

Considering throughout the process of resolving the case and at the trial, the plaintiff Mr. G.J.D.E. is voluntary not to ask the defendant Mrs. T.T.K.D. to provide child support, in accordance with the provisions of the law, so the Trial Panel recognizes this voluntariness of the plaintiff.

[4] Regarding first instance civil fee:

Pursuant to Clause 1, Article 147 of the Civil Procedure Code and Clause 1, Article 26 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016, the defendant Mrs. T.T.K.D. must bear the first instance court fee of VND 300,000 (Three hundred thousand dong).

Therefore,

DISPOSITION

Pursuant to Clause 7 of Article 28, Clause 1 of Article 35, Article 39, Article 63, Article 147, Article 227, Article 266, Article 271 and Article 273 of the Civil Procedure Code in Viet Nam;

Pursuant to Articles 81, 82, 83 and 84 of the Law on Marriage and Family in Viet Nam;

Pursuant to the Law on Fees and Charges No. 97/2015/QH13 in Viet Nam dated November 25, 2015; the Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the National Assembly Standing Committee, stipulating the court fees and charges, collection, exemption, reduction, management, and use thereof;

Declare:

1. Accept the petition of Mr. G.J.D.E ..

Award Mr. G.J.D.E the physical custody of L.A.T.E., born on September 18, 2016.

Recognize Mr. G.J.D.E.'s voluntary consent not to ask Mrs. T.T.K.D. to provide child support.

The non-custodial parent has the rights of visitation, care giving and education of the common child without any interference. In the case where Mrs. T.T.K.D. misuses this right to interfere or adversely affect Mr. G.J.D.E.’s physical custody, the custodial parent or any individual or organization defined in Article 86 of the Law on Marriage and Family has the right to request the Court to restrict the defendant’s right of visitation of minor child.

For the benefit of the child, either party has the right to ask the Court to change the custodial parent or child support level.

2. Regarding first instance civil fee:

Mrs. T.T.K.D. has to pay the court fee of marriage and family case of VND 300,000 (Three hundred thousand dong).

Reimburse to Mr. G.J.D.E. the paid advance court fee amount of VND 300,000 according to the receipt No. 0017355 dated December 11, 2019 of the Civil Judgment Enforcement Department of Binh Thanh District.

3. Regarding the right to request judgment enforcement:

In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments in Viet Nam, the judgment creditor and judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Article 6, 7 and 9 of the Law on enforcement of civil judgments, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments.

4. With reference to right to appeal:

The litigants are entitled to appeal this judgment within 15 days from the date of pronouncement. For the absent involved party, the time limit for the appeal is counted from the date on which the judgment is duly served.