17-06-26 MTParners
There is no default rule that “the mother automatically gets custody.” Vietnamese law determines who directly raises a child after divorce based on the principle of safeguarding the child’s interests in every respect, and for children aged 7 and above, the child’s own wishes are a factor the court is legally required to consider.
Under the 2014 Law on Marriage and Family and the 2015 Civil Procedure Code, the question of who directly raises a child after divorce is first a matter for the spouses to agree on; only when they cannot agree does the Court decide, based on the principle of protecting the child’s interests in every respect. For a child under 36 months old, the law prioritizes giving custody to the mother, subject to certain exceptions. For a child aged 7 or above, the judge is required to obtain the child’s opinion and wishes before deciding — but that opinion is not an absolute, decisive factor.
Clause 2, Article 81 of the 2014 Law on Marriage and Family provides that spouses may agree on who will directly raise the child, and on each party’s rights and obligations toward the child after divorce; where no agreement is reached, the Court shall decide to award the child to one party based on the child’s interests in every respect. “Interests in every respect” is understood as a combination of factors: economic conditions, stable housing, the actual time spent caring for the child, the educational environment, and the moral character and lifestyle of the father or mother — including any adverse conduct such as domestic violence, legal violations, or lack of care for the child, if any. The Court does not decide based on sentiment, such as “who filed first” or “who cried more,” but weighs the full case file and evidence submitted by both sides.
Clause 3, Article 81 of the 2014 Law on Marriage and Family provides that a child under 36 months old shall be given to the mother to directly raise, except where the mother is not sufficiently able to directly look after, care for, raise, and educate the child, or where the parents have agreed otherwise in a manner consistent with the child’s interests. This rule is based on the psychological and physiological needs of young children for close maternal care, but exceptions still apply: if the mother has a serious illness, lacks stable housing, engages in conduct harmful to the child, or the parties have agreed otherwise in the child’s interest, the Court may still award custody to the father.
Clause 2, Article 81 of the 2014 Law on Marriage and Family provides that if the child is 7 years old or older, the child’s wishes must be considered. Giving concrete effect to this rule, Clause 3, Article 208 of the 2015 Civil Procedure Code specifies that, in cases concerning disputes over child custody upon divorce or a change of the person directly raising the child after divorce, the judge must obtain the opinion of a minor child aged 7 or above; the process of obtaining that opinion must be conducted in a child-friendly manner appropriate to the child’s psychology, age, and level of maturity, and must protect the child’s personal privacy. However, according to practical analysis published in the People’s Courts Journal (Tạp chí Tòa án nhân dân), this is a mandatory procedural step in form, but the child’s wishes are not automatically and absolutely accepted by the Court — if the party the child wishes to live with is not actually capable of providing care in practice (for example, due to frequent travel for work or lack of time), the Court may still award the child to the other party in order to ensure the child’s best interests.
Adjudication practice shows several difficulties in carrying out this procedure: cases where a child has lived with grandparents since early childhood and wishes to continue living with them rather than with either parent; cases where a child chooses to live with a parent who, in turn, does not wish to directly raise the child; or cases where the parent currently caring for the child does not cooperate, deliberately concealing the address so that the Court cannot reach the child to obtain an opinion. In these situations, the Court typically must conduct further verification locally and consult relatives or the child’s school in order to reach the decision best suited to the child, rather than relying on a single attempt to obtain the child’s opinion.
A correct understanding of the governing principles and the age thresholds for obtaining a child’s opinion helps the parties prepare appropriate documentation and evidence from the time the divorce petition is filed, avoiding mistaken expectations (for example, assuming that a child under 36 months will certainly go to the mother in every case, or that the Court must follow whatever a child over 7 wishes). At the same time, a lack of evidence regarding actual caregiving conditions is a common reason a party’s otherwise legitimate request for custody is denied.
Where a custody dispute arises, the parties should prepare full evidence regarding economic conditions, housing, and the actual time spent caring for the child, and, where possible, reach an agreement beforehand to avoid prolonging proceedings and reduce psychological harm to the child. For a child aged 7 or above, it is advisable to prepare the child psychologically before the Court obtains their opinion, avoiding pressure or influence that could cause the child to answer according to a parent’s wishes rather than their own. Where one party fails to cooperate in obtaining the child’s opinion or obstructs visitation rights, a written request should be made for the Court to apply additional verification measures. In complex situations — sharp disputes, elements of domestic violence, or a child’s wishes that diverge from actual caregiving conditions — engaging a lawyer to help prepare the case file and participate in proceedings is advisable to best protect the interests of both the child and the parent.
MT & Partners Law Firm has a team of experienced lawyers in the field of marriage and family law, ready to advise on determining child custody rights, assist in gathering evidence, and represent clients in disputes over child custody upon divorce or a change of the person directly raising a child. Contact hotline 0987140772 or email info@mtpartners.vn for consultation.
(*) This article is for reference purposes only and does not replace specific legal advice.
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