New guidance on settlement of child custody upon divorce in Vietnam as of July 1, 2024

New guidance on settlement of child custody upon divorce in Vietnam as of July 1, 2024 (Internet image)

Regarding this matter, LawNet would like to answer as follows: 

On May 16, 2024, the Council of Judges of the Supreme People's Court issued Resolution 01/2024/NQ-HDTP on guidelines for application of certain legal regulations on resolving marriage and family cases in Vietnam.

New guidance on settlement of child custody upon divorce in Vietnam as of July 1, 2024

Resolution 01/2024/NQ-HDTP provides guidance on settlement of child custody upon divorce specified in Article 81 of the Law on Marriage and Family 2014 as follows:

(1) In considering "the children’s benefits in all aspects" prescribed in Clause 2, Article 81 of the Law on Marriage and Family 2014, the following criteria must be objectively and comprehensively evaluated:

- The conditions and capabilities of the parents in caring for, raising, and educating the child, including the ability to protect the child from abuse and exploitation;

- The child's right to live with the custodial parent, and to maintain a relationship with the non-custodial parent;

- The child's emotional bond and closeness to each parent;

- Parents' concern for their children;

- Ensuring stability and minimizing disruptions to the child's living environment and education;

- The child's desire to live with siblings (if any) to maintain emotional and psychological stability;

- The child's preference to live with either parent.

(2) Collecting opinions from minor children aged 7 years or older prescribed in Clause 2, Article 81 of the Law on Marriage and Family 2014 and Clause 3, Article 208 of the Civil Procedure Code 2015 must meet the following requirements:

- Ensure a friendly and appropriate environment that aligns with the child's psychological development, age, and maturity level, allowing the child to express their opinion freely and fully;

- Do not seek the child's opinion in the presence of the parents to avoid causing psychological pressure on the child;

- Do not coerce, cause pressure or stress on the child.

(3) "The mother cannot afford to directly look after, care for, raise and educate the child" as specified in Clause 3, Article 81 of the Law on Marriage and Family 2014 refers to situations where the mother falls under one of the following circumstances:

- The mother suffers from a serious illness or other severe illness that renders her unable to care for herself or directly care for, raise, and educate the child;

For example: In a case where the mother has suffered a stroke and is paralyzed on one side, rendering her unable to walk, the Court will not entrust a child under 36 months of age to the mother's direct care, raising, and education.

- The mother has a monthly income lower than half the minimum regional wage in the place where the mother resides and does not have any other assets to care for, raise, and educate the child;

- The mother does not have the minimum time required to directly care for, raise, and educate the child.

(4) In cases where the father's conditions for caring for, raising, and educating the child are not better than the mother's as specified in Clause 3 of this Article, the Court shall decide to entrust the child to the mother's direct custody.

(Article 6 of Resolution 01/2024/NQ-HDTP)

More details can be found in Resolution 01/2024/NQ-HDTP, which comes into force from July 1, 2024.

Regulations on looking after, care for, raising and education of children after divorce in Vietnam

Specifically, Article 81 of the Law on Marriage and Family 2014 stipulates the following regulations on looking after, care for, raising and education of children after divorce in Vietnam as folllows:

- 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 the Law on Marriage and Family 2014, the Civil Code 2015 and other relevant laws.

- 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.

- 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.

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