If my ex-wife loses her father, do I have right to take my child to raise in Vietnam? What issues need to be proved to win custody of children in divorce in Vietnam?

If my ex-wife loses her father, do I have right to take my child to raise in Vietnam?

I divorced my wife 3 years ago, at that time, my son was only two years old, so the Court gave him to his mother to raise, and I have monthly support obligations. Recently, she passed away in an accident. I wanted to take my son home to raise him, but my grandparents refused to let me take him home. Now what should I do sir?

Reply:

According to the provisions of Article 69 of the Law on Marriage and Family 2014, children who are born regardless of their parents’ marital status all have the same rights and obligations toward their parents prescribed in this Law, the Civil Code and other relevant laws.

On the other hand, according to the provisions of Article 71 of the Law on Marriage and Family 2014, father and mother have equal obligation and right to jointly care for and raise their minor children or adult children who have lost their civil act capacity or have-no working capacity and no property to support themselves.

At the same time, according to the provisions of Article 70 of the Law on Marriage and Family 2014, for minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves, to live with their parents, to be looked after, nursed and cared for by their parents.

Thus: Pursuant to the above-cited regulations in Vietnam, as a father, you have right to directly raise and take care of your child, except for the following cases:

- The case specified in Clauses 2 and 3, Article 81 of the Law on Marriage and Family 2014;

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.

On the other hand, according to the information you provided to us in Vietnam, your ex-wife (mother of your child) has passed away. Therefore, they are no longer eligible to directly look after, care for, raise and educate their children.

So you have right to ask the Court to decide to change the person directly raising the children from your ex-wife to you. Since your child is only 5 years old at the moment (under 07 years old), you will not have to consider your child's wishes when changing the direct caregiver in Vietnam.

However, if you also do not meet the conditions to directly look after, care for, raise and educate your child, the Court shall decide to assign the child to the child's guardian for direct care according to the provisions of law in Vietnam. 

In case the Court has decided to change the person directly raising the child from the ex-wife to a friend of the Court, but the grandparents still refuse to let you pick up the child to directly look after, care for, nurture and educate. If your child is a child, you can initiate a lawsuit at the district court where your child's grandparents are residing (either a permanent residence or a temporary residence) for consideration and settlement according to their jurisdiction in Vietnam.

Above is our consulting opinion on the issue you are wondering.

What issues need to be proved to win custody of children in divorce in Vietnam?

My ex-wife and I have lived together for many years, we have two children, they are 8 years old (twins). Now we don't live together anymore, so I want a divorce. I want to get custody of both children because I can afford to take good care of them. And if I give my children to her, she has no income, will give my children to her grandparents to work far away,... so I don't want her to raise her children. What do I have to do when I go to court to get custody of the children?

Reply:

Article 81 of the Law on Marriage and Family 2014 provides for this issue as follows:

Article 81. Looking after, care for, raising and education of children after divorce

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: Based on the above-cited regulations in Vietnam, in principle, who will directly raise children after a divorce will be agreed upon by the husband and wife themselves. In case the husband and wife cannot reach an agreement, the Court shall decide to assign the child to one party to directly raise it based on the child's interests in all aspects but must ensure the following principles:

- Children aged full 07 years or older must consider their wishes.

- Children under 36 months old are assigned to their mothers to directly raise them.

However, in case the mother is not qualified to directly look after, care for, raise and educate the child, the Court may consider handing over the child under 36 months of age to the father or another person who fully meets the conditions to take care of the child for the benefit of the child in Vietnam.

Therefore: If you want to win custody in Vietnam, you must prove the following two issues for the Court to consider:

- First: You must prove that your current wife does not have enough material and spiritual conditions to directly look after, care for, raise and educate children.

For example: she does not have a stable job leading to unstable income; She cannot directly take care of and raise her children, but has to send her children to grandparents to work far away,...

- Second: You must prove that you meet the material and spiritual conditions to directly look after, care for, raise and educate your children.

For example: You have a job, have a stable income to take good care of your children; If you work close to home, you have a lot of time to directly take care of and raise adult children,...

Above is our consulting opinion on the issue you are wondering.

Who has right to custody children when the marriage is not registered in Vietnam?

My husband and I live together as husband and wife, but we have not registered our marriage for 3 years and have a 1-year-old son. We are separated now, he is raising his son, but when I visit him, he doesn't like it. Can I divorce him and get custody of my children?

Reply:

According to the provisions of the Law on Marriage and Family 2014, the marriage must be registered and performed by a competent state agency in accordance with the provisions of this Law and the law on civil status.

A marriage that is not registered in accordance with the provisions of this Clause is not legally valid.

According to the provisions of Clause 4, Article 3 of Joint Circular 01/2016/TTLT-TANDTC-VKSNDTC-BTP, the case where a man and woman live together as husband and wife without marriage registration (regardless of whether there is a violation conditions for marriage or not) and has a request for divorce, the Court accepts, settles and applies Articles 9 and 14 of the Law on Marriage and Family 2014 declaring not to recognize the marital relationship between them. If there is a request to the Court to settle the rights and obligations of the father, mother and child; Property relations, obligations and contracts between the parties shall be settled as follows:

- Rights and obligations between men and women living together as husband and wife and children shall be settled according to the provisions of the Law on Marriage and Family 2014 on rights and obligations of parents and children.

- Property relations, obligations and contracts of men and women living together as husband and wife without marriage registration shall be settled by agreement between the parties; in case there is no agreement, the settlement shall be in accordance with the provisions of the Civil Code and other relevant provisions of law.

Note: The settlement of property relations must ensure the legitimate rights and interests of women and children; Household work and other jobs related to maintaining the common life are considered as income earners in Vietnam.

Thus: Based on the provisions cited above in Vietnam, you have the right to ask the Court to settle for you and him for divorce. At that time, the Court will issue a decision declaring not to recognize the marriage relationship between you and him.

On the issue of who has custody of a 1-year-old son?

In case you and him cannot agree on who will directly raise the child, you can ask the Court to settle it in accordance with the law.

Article 81 of the Law on Marriage and Family 2014 provides:

Article 81 of the Law on Marriage and Family 2014 provides for this issue as follows:

Article 81. Looking after, care for, raising and education of children after divorce

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: Based on the above-cited regulations, in principle, who will directly raise children after a divorce will be agreed upon by the husband and wife themselves. In case the husband and wife cannot reach an agreement, the Court shall decide to assign the child to one party to directly raise it based on the child's interests in all aspects but must ensure the following principles:

- Children aged full 07 years or older must consider their wishes.

- Children under 36 months old are assigned to their mothers to directly raise them.

However, if the mother is not eligible to directly look after, care for, raise and educate the child, the Court may consider handing over the child under 36 months of age to the father or another person who fully meets the conditions. to take care of the child for the benefit of the child in Vietnam.

Therefore: In case you and he cannot agree on who will directly raise the child, the Court will decide to hand over the 1-year-old child (under 36 months old) to you for direct care. However, if you are not eligible to directly raise the child, the Court may assign the 1-year-old child to the father or another person who meets the conditions to take care of the child for the benefit of the child in Vietnam.

Above is our consulting opinion on the issue you are wondering.

Best regards!