What does adultery affect child custody?

Specifically, according to the Judgment 15/2018/HNGĐ-PT dated May 4, 2018 on the dispute on divorce and child custody. Ms. M and Mr. D registered their marriage on May 14, 2015. In 2017, Ms. M had an affair with another man when she was discovered, she left the house from October 8, 2017. Now they agree to divorce each other but we both request to raise our common child, Le Phuong Th, at the time of the trial, she is under 36 months old.

The People's Court of Ca Mau province has determined:During the cohabitation of the husband and wife, Ms. M is at fault for leading the husband and wife to conflict and divorce. Specifically, in the photos provided by Mr. D to prove Ms. M's adultery, Ms. M acknowledges that there are 3 pictures of Ms. M and her boyfriend and many messages from Ms. M. 's phone. Therefore, Ms. M has violated her obligations and right to educate her children as prescribed in Article 72 of the Law on Marriage and Family in 2014 "Parents create conditions for their children to live in a warm, harmonious family environment, make good examples for their children in all aspects...". 

Although Clause 3, Article 81 of Law on Marriage and Family Vietnam stipulates that “ Children under 36 months of age are directly adopted by their mothers, unless the mother is not qualified to directly look after, care for, nurture or educate the child or the parents agree otherwise in accordance with the interests of the child.”.

However, the People's Court of Ca Mau province has based on such factors as: Ms. M could not prove her income (Ms. M opened a spa with an income of over VND 30,000,000 per month but she has no evidence to prove); Ms. M's violation of the obligation and right to educate her children (adultery); Mr. D works during office hours with a salary of VND 33,560,000 per month, certified by the Company, so Mr. D is qualified to directly look after, care, nurture and educate children. Since then, the Court has declared to accept the entire appeal request of Mr. Le Dinh D. Assign the common child named Le Phuong Th, born on April 1, 2016 to Mr. Le Dinh D directly raised.

It can be seen that the spouse's adultery does not automatically cause the person to lose custody of the child after the divorce but is an important factor and condition for the court to decide which person to grant custody of the child. As in the case of the above judgment, the court has based on the adultery of the wife and the income conditions of the couple to give custody of the child, not purely considering the adultery factor.

Therefore, when couples decide to divorce and gain custody of their children, it is necessary to prepare evidence to prove financially (income, accommodation...), time to take care of the children, morality, dignity of themselves and their partners to have the most advantages in court as well as for the children to be cared for and educated the best. 

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