Divorce: Who Gets Custody of the Children?

This issue still presents several inconsistent regulations between the Law on Marriage and Family 2015 and the Civil Procedure Code 2015 (BLTTDS), necessitating analysis and review for legislative improvement. The article "Discussion on Considering Children's Wishes When Parents Divorce" by M.A. Le Thi Man (Lecturer at Ho Chi Minh City University of Law) published in People's Court E-Journal on October 05, 2018, also highlighted these challenges, and we would like to further discuss them.

1. Rights and Obligations of Parents towards Their Common Children before and after Divorce

According to Clause 2, Article 82 of the Law on Marriage and Family 2015: “Husband and wife agree on who shall directly raise the child, their obligations, and rights towards the child after divorce; if an agreement cannot be reached, the Court shall decide to allocate the child to one party based on the child's best interests; if the child is seven years old or older, the child's wishes must be considered.” Additionally, the Civil Procedure Code has interwoven regulations on this issue in Article 208 (the Article on Notice of the Meeting on Submission, Access, Public Disclosure of Evidence, and Reconciliation), which pertains to allocating common children to one spouse to directly raise: “In disputes over child custody during or after divorce, the Judge must take into account the wishes of the minor child aged seven or older, ensuring the process is friendly and suitable to the minor’s psychological state, maturity level, and cognitive abilities while safeguarding the minor’s legal rights and privacy.”

With such regulations, many people are confused about parents' rights and obligations towards their common children before and after divorce. Legally, parents' rights and obligations towards their common children remain unchanged before and after divorce. This assertion has been continuously upheld and codified since 1959. Article 31 of the Law on Marriage and Family 1959 states: “Ex-spouses still have all obligations and rights towards their common children.” After divorce, parents still have the right and obligation to care for, nurture, and educate their children. This provision has been inherited and continued in Article 44 of the Law on Marriage and Family 1987; Clause 1, Article 92 of the Law on Marriage and Family 2000; Clause 1, Article 81 of the Law on Marriage and Family 2015[1].

Divorce means the marital relationship ends, and for various reasons, ex-spouses rarely continue living together. Therefore, one spouse must directly raise the child. The Court does not remove a parent's right to raise their child but decides who directly raises the child. It's essential to understand the terms “raising the child” and “directly raising the child.” According to the author, "raising the child" encompasses both "directly" and "not directly" raising the child. Raising the child involves care, education, and ensuring they have a normal life. The person directly raising the child lives with them daily, takes care of their needs, and provides education. The person directly raising the child has the advantage of proximity.

Those not directly raising the child still support through financial means and visitation, possibly even daily interactions and shared caregiving responsibilities. The rights and obligations of those not directly raising the child are clearly defined in family and marriage law: Ex-spouses still have the right to visit and care for their child, and they must share the costs of nurturing and educating their child, each according to their ability. For the child’s benefit, arrangements for caregiving or contributions to costs may be altered when necessary[2]. If contributions are delayed or avoided, the People’s Court may order deductions from income or enforce payment of these expenses[3].

Currently, despite some changes, the regulation on non-direct caregivers remains outlined in Article 82 of the Law on Marriage and Family 2015. Clearly, the law does not prohibit parents from raising their child after divorce; both spouses have rights and obligations towards their common child, albeit with differences between direct and indirect caregiving. This is also a contentious point among divorcing couples.

This understanding has practical significance for resolving family law cases in court. Courts must use the terms “direct caregiver” and “non-direct caregiver” when allocating children to parents. Otherwise, misunderstandings might arise, wrongly implying exclusive caregiving rights to the direct caregiver. In practice, many families, due to lack of understanding, prevent the non-direct caregiver from exercising their visitation and caregiving rights post-divorce, sometimes even requesting civil registry amendments to remove the parent's name from the child's birth certificate.

2. Who directly raises the common child after divorce

As presented in Section 1, both parents have rights and obligations in raising their child even post-divorce. The focus is on who directly raises the common child after divorce.

Firstly, the parent who will directly raise the common child is determined by mutual agreement. Clause 2, Article 81 of the Law on Marriage and Family 2015 states: “Husband and wife agree on who shall directly raise the child, their obligations, and rights towards the child after divorce.” This provision applies to minors without age restrictions, even those under thirty-six months. Mutual agreement is key. However, if the child over seven years wishes to stay with the mother but parents agree and decide that the father should directly raise the child, should the mutual agreement or court intervention be decisive? The author will address this later in the article.

Secondly, if parents cannot agree (dispute) on who will directly raise the common child, the Court decides. In such cases, the Court considers the child’s age; if under thirty-six months, the child is typically allocated to the mother[4], unless the mother is unfit. For children over thirty-six months, the Court decides based on the overall best interests of the child[5].

What defines the child's best interests? This qualitative factor relies on the Court's evaluation, from living and studying conditions to the caregiver's occupation and housing post-divorce, among other factors. For children seven years or older, their wishes must be considered.

Does failure to consider the child's wishes violate procedural rules? In her article "Discussion on Considering Children's Wishes When Parents Divorce," M.A. Le Thi Man (published in People's Court E-Journal on October 05, 2018) provides an example where the Court’s failure to consider one of three children's wishes was procedurally flawed.

The author suggests a method for evaluating minor children's wishes. When analyzing this issue, we must note the term “must” in Clause 2, Article 81, and Clause 3, Article 208 of the Civil Procedure Code. In my opinion, the Court must consider the wishes of children aged seven and older in context with other factors; it merely influences the Court's final decision on allocating the child, not directly determining it.

As analyzed in Section 1, assigning a child to one caregiver does not strip the other parent’s right to care – it only specifies direct or indirect caregiving. Practically, children sometimes express no preference, desiring family unity or stating both parents during visitation, or could have moved away, complicating consultation. Mandatory consultation could unnaturally delay and prolong the case. In amicable divorce, as previously discussed, a child’s preference inconsistent with parents’ agreement raises the question – what’s the significance of the child’s wishes?

From theoretical and practical contexts, the author acknowledges the case highlighted by M.A. Man in her article: The District G Court, Province T didn’t procedurally err by not consulting the child’s wishes. The People's Supreme Court addressed this in Resolution No. 01/GD-TANDTC on January 05, 2018: “Lack of statements from children isn't ground to suspend or delay civil case resolution. The Court will proceed per regular protocol, considering the child's best interests in deciding the direct caregiver.”

M.A. Le Thi Man queries: What form should consultations take? Are there exceptions for considering children’s wishes?[6] For the Court, this is part of evidence collection adhering to specific articles in the Civil Procedure Code (Article 48, Article 94, Article 98, among others). Minors in family law cases aren’t equated to litigants as defined in Clause 1, Article 68 of the Civil Procedure Code, thus aren’t plaintiffs, defendants, or associated party members (unless involving asset disputes in family cases). They have rights and interests safeguarded. Judges should adopt flexible, case-specific strategies. For example, during school visits, Judges can collaborate on a discrete consultation plan, maybe through a casual interview style, incorporating forms to inquire: “If parents divorced, who’d you prefer to live with and why?” This ensures objectivity and safeguards the child's welfare.

3. Comments and Proposals for Legislative Improvement

Comments: As analyzed in Sections 1 and 2, the Law on Marriage and Family doesn’t bar parental rights post-divorce; the Court doesn’t revoke these rights (excluding specific cases). Post-divorce, parents retain the obligation and right to care for, educate, and nurture minors. Disputes, therefore, center on who directly raises the child, warranting court intervention. Reviewing historical iterations of the Law on Marriage and Family, legislators consistently term “direct caregiver.” In agreement disputes, the Court assigns one party as direct caregiver. Thus, post-divorce, parental care disputes focus on direct caregiving, not total caregiving rights. Nevertheless, Articles 28 and 29 of the Civil Procedure Code 2015 outlines family and marriage disputes under Court jurisdiction. Article 28, Clause 1 states: "Divorce, custody disputes, asset division during divorce, post-divorce asset division; Clause 3: Custody changes post-divorce disputes; Clause 7: Custody disputes, asset division between non-marital cohabiting couples including void marriage dissolution." Clause 3, Article 28 recognizes: "Request to acknowledge custody change agreements post-divorce."

Moreover, Clause 3, Article 208 of the Civil Procedure Code states: "Disputes over custody during or after divorce."

As highlighted, the Civil Procedure Code addresses “custody disputes” (Clauses 1 and 7, Article 28) and “custody change disputes post-divorce” (Clause 3, Article 28). Conversely, the Law on Marriage and Family specifies disputes over direct caregiving. There's clear inconsistency between these regulations and the Civil Procedure Code’s vague definition of “custody disputes.” Perhaps, an equivalence was assumed, equating custody disputes with direct caregiving disputes. The author suggests, as analyzed in Sections 1 and 2, divorced parents inherently continue caregiving, only disputing direct caregiving responsibilities.

Therefore, to align with the Law on Marriage and Family, amend the Civil Procedure Code to specify "disputes over direct caregiving during divorce" rather than "custody disputes during divorce," and the People’s Supreme Court should offer interpretative guidance.

According to ThS. Truong Thanh Hoa (District People’s Court Tu Nghia, Quang Ngai) - People’s Court Journal

>> CLICK HERE TO READ THIS ARTICLE IN VIETNAMESE