Who will have custody of children if the marriage is not registered in Vietnam?

Who will have custody of children if the marriage is not registered in Vietnam?

Question: Please let me ask: My boyfriend and I have been living together as husband and wife for 2.5 years. We have a 2 year old son. Now that I don't want to live together anymore, can I get custody of my child? I hope you guys can advise me.

Reply:

Clause 1, Article 88 of the 2014 Law on Marriage and Family stipulates:

1. A child who is born or conceived by the wife during the marriage period is the common child of the husband and wife.

A child who is born within 300 days from the time of termination of a marriage shall be regarded as a child conceived by the wife during the marriage period.

A child who is born before the date of marriage registration and recognized by his/her parents is the common child of the husband and wife.

In addition, Clause 1, Article 14 of the 2014 Law on Marriage and Family stipulates:

1. A man and woman eligible for getting married under this Law who cohabit as husband and wife without registering their marriage have no rights and obligations between husband and wife. Rights and obligations toward their children, property, obligations and contracts between the partners must comply with Articles 15 and 16 of this Law.

Thus, the two people will agree on who will directly raise the child, the obligations and rights of each party after not living together as husband and wife anymore. In case no agreement can be reached, the Court shall decide to assign the child to one party to directly raise it based on the child's interests in all aspects in Vietnam.

In case the child is under 36 months old, the child will be assigned directly to the foster mother according to the provisions of Clause 3, Article 81 of the Law on Marriage and Family 2014 in Vietnam.

If my ex-wife remarries, can I regain custody of my children in Vietnam?

Question: My ex-wife and I are divorced, both I and my wife are well off, according to the court's ruling, my wife is the one to raise our two sons together, three years have passed and now the children have been raised, they are also 9 years old, my wife is about to remarry in May this year, I want to ask if I can reclaim custody of the children from my wife?

Reply:

Pursuant to Article 84 of the Law on Marriage and Family 2014, there are regulations on change of the person directly raising children after divorce, according to which:

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.

According to this Article, based on the provisions of the law in Vietnam, in this case, in order to regain custody of the child, he needs to reach an agreement with his ex-wife to change the person who directly looks after, cares for, and nurtures, educate children. If the couple finds a common voice, they can put it in writing and ask the court to recognize the agreement on changing the person directly raising the child.

In case your wife does not agree, you need to prove that your wife is no longer qualified to directly raise the child in Vietnam. The court can consider that if it is true, the court will issue a decision to change person directly raise children.

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

Question: My wife and I have made the decision to divorce. I want to gain custody of my child because I can take care of my child more fully. So, can you advise me on what I must prove to gain custody of my children during a divorce? Looking forward to hearing from you soon. Thank you very much!

Reply:

According to Article 81 of the Law on Marriage and Family 2014 on 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.

So for you to have the right to raise both children in Vietnam, you need to prove that you have all the best conditions to raise them, specifically:

- Regarding economic conditions: must prove monthly income, have assets, and a stable place to live to create conditions for children to live, study, and play;

- Regarding mental conditions: prove that you have enough time to care for, teach, educate your child, and have affection for your child; Prove that you must always have good moral character to raise children.

Best regards!