Can I get custody of my children when my wife has an affair in Vietnam? What is handling for married couple divorced but unable to raise children in Vietnam?

Can I get custody of my children when my wife has an affair in Vietnam?

My wife has an affair and plays lotteries when divorced, can I have custody of the children?

Reply:

Article 81 of the Law on Marriage and Family 2014 provides for looking after, care for, raising and education of children after divorce as follows:

1. After a divorce, parents still have rights and obligations to look after, care for, raise and educate minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves in accordance with this Law, the Civil Code and other relevant laws.

2. 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 either of them to directly raise the children, taking into account the children’s benefits in all aspects. If a child is full 7 years or older, his/ her desire shall be considered.

3. A child under 36 months of age shall be directly raised by the mother, unless the mother cannot afford to directly look after, care for, raise and educate the child or otherwise agreed by the parents in the interests of the child.

Thus, in the case of your wife's adultery and gambling, you can file for divorce, but to win child custody, you need to consider the age of the children as well as the child care conditions of both in Vietnam.

You need to prove that you are more qualified to raise children than your wife in Vietnam, you give reasons for your wife's adultery and gambling, if the child is 3 years old, you have more advantages. 

What is handling for married couple divorced but unable to raise children in Vietnam?

My wife and I are too poor, do not have a stable job, cannot guarantee a life, so we have to divorce. Currently, we have a 4-year-old son, but our circumstances cannot support him. Please ask, what is handling for married couple divorced but unable to raise children? Thank you.

Reply:

According to the provisions of Clause 4, Article 84 of the Law on Marriage and Family 2014, then:

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.

Article 52 of the 2015 Civil Code stipulates natural guardians of minors as follows:

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.

Thus, the order of priority is brother and sister in turn; Grandparents; An aunt, uncle, uncle (who is a brother, sister of a father, or mother of a minor) will be the guardian of his/her child. In cases where relatives are not eligible to act as guardians, appointment of guardians according to Article 54 of the Civil Code 2015.

In case you, your relatives are not able to take care of your baby, you must report to the Commune People's Committee where your child permanently resides so that they can find a replacement family for your child. According to the provisions at Point b, Clause 2, Article 15 of the Law on Adoption 2010. Specifically:

2. The finding of a substitute family for a child is stipulated as follows:

b/ For an orphan who has no caretaker or a child who has natural parents and relatives who, however, are incapable of nurturing the child, the guardian, natural parents or relatives shall report this to the commune-level People's Committee of the place in which the child permanently resides for finding a substitute family for the child. The concerned commune-level People's Committee shall support the child's nurturing and post up at its head office for 60 days an announcement to find a person to adopt the child; if a person in the country seeks to adopt the child, the commune-level People's Committee shall consider and settle the adoption. Past the time limit of posting up the announcement, if nobody in the country seeks to adopt the child, the commune-level People's Committee shall compile a dossier for sending him/her to a nurturing center;

Thus, even though the couple is divorced, it does not mean end of the obligation to care for and raise children. Unless both people prove that they do not have enough physical and mental conditions to raise the child, the court will grant custody of the child to the guardian. In case a suitable guardian cannot be found, the commune-level People's Committee will be asked to find a new family for the child, during this time, the child will be temporarily raised at a local fostering facility in Vietnam.

Can same gender people adopt children in Vietnam? 

Please ask the following question: My husband and I are same gender, we have been married for 2 years. Now, my wife and I intend to apply for a child in the name of husband and wife, I don't know if it is possible? What conditions must my wife and I meet? Hope you can advise. Thank you very much

Reply:

According to the provisions of Clause 2, Article 8 of the Law on Marriage and Family 2014, the State shall not recognize marriage between persons of the same sex.

And according to the provisions of Clause 3, Article 8 of the Law on Adoption 2010, a person may be adopted by only one single person or two persons being husband and wife.

According to the above regulations in Vietnam, marriage between people of the same gender is not recognized in Vietnam and you two are not considered husband and wife. Therefore, either of you can only adopt a child in the name of a single person and must fully meet the conditions specified in Article 14 of the Law on Adoption 2010. The two of you cannot adopt a child under nominally husband and wife.

Best regards!