In any broken marriage, children are suffering the most impacts. It is inevitable that they may suffer from mental trauma. Understanding this disadvantage, parents always want to partially compensate their children with affection, care, and the best possible living conditions. Property can be easily divided, but children are not. Therefore, many disputes over child custody have occurred between husbands and wifes during divorce, especially when a child is under 3 years old. Who has the custody of a child under 3 years old? What are legal regulations?
Family and Marriage Law 2014 states follows regarding looking after, care for, raising and education of children after divorce:
So, Family and Marriage Law 2014 states that, upon divorce decision, husband and wife may reach an agreement on the child custody, and if no such agreement is reached, they may request the Court for settlement.
If both parties may reach an agreement, it must be specified in the petition for divorce as self-agreement with respect to common child, and at the divorce court, the court will not mention this issue again.
If husband and wife fail to reach an agreement and request the Court for settlement of the custody of common child, this can be directly stated in the petition for divorce submitted to the Court for settlement.
Article 81 of Family and Marriage Law 2014 clearly states the cases in which both parties fail to reach an agreement on child custody and child custody is determined by the court as follows:
It can be seen that current law stipulates that children under 36 months of age should be raised by mothers. But, should children under 3 years of age always be raised by their mothers?
When a child is less than 3 years old, his or her body is still extremely weak and needs the care of the mother. For example, breastfeeding and teaching the child how to eat, and taking care of his or her health, mother is still the most suitable person at this stage. Understanding this, Vietnamese law always gives priority to ensuring the best development of young children, prioritizing the protection of the rights of mothers and children by giving the right to care and raise children to the mothers.
After the first 36 months, when the child is stronger, the Court can consider the parents’ conditions to see who can create conditions and take care of the child in the best way, both physically and mentally.
And when a child is 07 years old, he or she is aware of his or her own feelings and can decide for himself or herself on who to live with, whom he or she feels loved or more suitable, and the Court will decide based on the child’s wishes.
Only when the mother, for some reasons, fails to meet the conditions to take care of the child, this right belongs to the father.
There are cases where a father can directly raise a child under the age of 3, specifically as follows:
Family is a cell of the society. If family is built well, society will also be good. Each family will have the responsibility to educate their children so that they grow up to be good people, contribute to the society and country, so the care, education and raising of children is extremely important.
In case husband and wife can reach an agreement on child custody, the Court shall still respect their decision.
For example, after divorce, husband and wife have their own places of residence, and the wife feels that the child living with the husband will be better than living with herself. When the child lives with her, she will not be able to take care of the child. Meanwhile, the husband also wishes to raise the child, so they can reach an agreement to allow the husband to raise the child.
In which cases the wife is not eligible to directly raise the child? These are conditions that can affect both physical and mental states, as well as the upbringing of the child. For example, a mother who has lost her civil act capacity, is missing, has signs of mental illness, has a serious or incurable disease, or is in poor health requiring treatment, is unable to take care of her child.
Others such as economic conditions, a wife does not have a stable place to live with her child after the divorce, or a wife has a place to live but housing condition is poor and degraded, which may affect the child’s health, make him more susceptible to infection, etc.
A wife does not have a job, stable income, or works all day and cannot send anyone to look after and take care of her child.
A mother has a degenerating lifestyle, such as regularly gathering to gamble, consuming dangerous stimulants such as alcohol, drugs, leading to uncontrolled behavior…
If the mother shows signs of violence, often yells, beats, abuses, or starves her child, it is also difficult for the Court to decide on who to raise the child because this will directly affect the child’s physical and mental development.
In other cases when the mother is unable to directly raise the child, the child custody will be assigned to the father.
So, according to current provisions of law, a child under 36 months of age will be directly cared for and raised by the mother, unless otherwise agreed by the parties for the child’s interests. If the mother is unable to directly care for, raise, and educate her child under 36 months of age, the father will be assigned to take custody of the child.
In principle, the divorce procedures shall proceed in the same manner as specified in the regulations on custody of child under 3 years of age after divorce:
If both children are under 7 years of age, the court shall consider their interests in all respects before making a decision.
In summary, child custody shall be decided on case by case basis subject to actual conditions and provisions of laws to ensure that the children have conditions to grow as best as possible.
Fill up the form and our lawyers will get back to you as soon as possible. And you can always
Le & Tran Building – Headquarters:
Area No. 284 (Bld 9), Nguyen Trong Tuyen Street, Ward 10, Phu Nhuan District, Ho Chi Minh City
Saigon Tower – City Center Office:
Unit 8, Level 16, 29 Le Duan Blvd, Ben Nghe Ward, District 1, Ho Chi Minh City, Vietnam
Daeha Business Center – Ha Noi Office:
No.1606, 16th Floor, 360 Kim Ma Street, Ba Dinh District, Hanoi City
Le & Tran Building – Headquarters: Area No. 284 (Bld 9), Nguyen Trong Tuyen Street, Ward 10, Phu Nhuan District, Ho Chi Minh City
Saigon Tower – City Center Office: Unit 8, Level 16, 29 Le Duan Blvd, Ben Nghe Ward, District 1, Ho Chi Minh City, Vietnam
Daeha Business Center – Ha Noi Office: No.1606, 16th Floor, 360 Kim Ma Street, Ba Dinh District, Hanoi City
Email Us letran@familylawyers.vn hoặc gọi hotline
© 2022 © Family Lawyers. All rights reserved Disclaimer | Privacy Policy