Latest Instructions on Custody of Children Under 3 Years Old After Divorce

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?

Right of custody of child under 36 months old as stipulated by law

Family and Marriage Law 2014 states follows regarding looking after, care for, raising and education of children after divorce:

• 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.
• 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.

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:

• 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.
• For a child of 03 to 07 years of age, custody shall be decided by the court upon considering both parties’ conditions.
• For a child of 07 years of age or more, the Court shall consider his or her opinions.

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?

For children under 3 years of age, should they automatically 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.

Is there any case in which a father can raise a child when the child is under 36 months of age?

There are cases where a father can directly raise a child under the age of 3, specifically as follows:

• In case husband and wife agree on child custody after divorce.

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 case the wife is not eligible to directly raise, care for and educate 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.

Who shall have the right of custody in case there are two children or more, including one(s) of 3-7 years of age and one(s) under 3 years of age

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.

• If both parents are capable of directly caring for, raising, and educating the children, each shall be given the custody of one child.
• If both parents are unable to care for, raise, and educate the children, the custody of both children shall be given to another capable person.

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.