Child Custody

Unraveling Child Custody Complexities in Vietnam

Author
Duy Nguyen

The increasing number of divorces in Vietnam has brought child custody to the forefront of legal discussions. This article aims to explore the complexities surrounding child custody amidst divorce in Vietnam. We will delve into the legal frameworks, cultural influences, and the paramount importance of ensuring the well-being of children throughout the process.

Vietnamese Family Law: An Overview

Vietnamese family law plays a crucial role in protecting children’s welfare during divorce proceedings. The legal system recognizes the significance of safeguarding children’s rights and interests. It establishes basic principles that govern child custody, ensuring that decisions are made in the child’s best interests. The Vietnamese family law stipulates that following a divorce, parents retain both rights and responsibilities for the care, upbringing, and education of their minor children, as well as adult children who lack legal capacity or are unable to work or support themselves financially. The law places a strong emphasis on mutual agreement between both parties. Therefore, spouses are encouraged to come to a consensus regarding the primary caregiver for their children as well as define their respective rights and duties towards them post-divorce. In cases where an agreement cannot be reached, the Court will intervene to appoint one party as the primary caregiver, considering the overall well-being of the children. If a child is at least 7 years old, their preferences will be taken into consideration.

Additionally, if a child is under 36 months old, the mother is typically granted primary custody, unless she is unable to adequately provide for the child’s care, or both parents agree on an alternative arrangement that is in the best interests of the child. This provision underscores the paramount importance of the child’s welfare in determining custody arrangements after a divorce.

Factors Determining Child Custody

Several factors come into play when determining child custody arrangements in Vietnam:

The child’s age and preference.

The court takes into account the child’s age and maturity level when considering their preference regarding custody arrangements. Under Vietnamese legal provisions, a child conceived by the wife during the marriage or born within 300 days following the court’s final judgment or decree of divorce between the parents is legally recognized as the mutual child of the separated couple. This regulation seeks to ensure that children born within this timeframe are considered the joint responsibility of both former spouses, regardless of the circumstances surrounding the divorce. This legal principle upholds the child’s rights and status, emphasizing the ongoing obligations and rights of both parents towards the child even after divorce proceedings have concluded.

The capability of each parent to care for the child

When determining custody in a divorce, the court assesses each parent’s capacity to ensure the child’s holistic development, encompassing both physical and mental well-being as well as their respective social connections. This evaluation aims to safeguard the child’s lawful entitlements. Hence, numerous divorce cases witness either parent vying for custody rights, presenting evidence to demonstrate their ability to provide the child with optimal living conditions (including housing, education, recreational activities, and more) as well as emotional support (such as dedicating time for care, affection, and education).

Simultaneously, they may seek to establish that the other parent lacks the physical and mental readiness to adequately care for the child. This underscores the significance of presenting a comprehensive case for custody based on various aspects of the child’s welfare.

The financial standing of each parent

When addressing custody matters in the event of a divorce involving multiple children, the court conducts a thorough assessment of each parent’s individual circumstances. This evaluation serves as the basis for determining whether one parent is suitable to have custody of all the children or if it is more appropriate to allocate custody of different children to each parent, depending on their demonstrated capabilities. Additionally, the court may consider a parent’s income as a factor in determining the number of children they can adequately care for while also considering other relevant aspects in the custody decision-making process. This approach ensures that the court’s decision is well-rounded, factoring in various elements that contribute to the overall well-being and best interests of the children involved.

The mental and physical well-being of parents

The court evaluates the ability of each parent to provide for the child’s comprehensive development, including their mental and emotional health. This assessment helps ensure that the child is placed in an environment that is conducive to their overall well-being and psychological stability. Additionally, if either parent is found to have mental health issues that may impact their ability to care for the child, the court may factor this into their custody decision. The ultimate goal is to prioritize the best interests and welfare of the child in custody arrangements.

The child’s relationship with their sibling(s)

The court considers the importance of maintaining sibling relationships when making custody decisions. This consideration is in line with the broader aim of ensuring the child’s overall well-being and emotional stability. Therefore, if there are siblings involved, the court will strive to create a custody arrangement that allows the child to maintain meaningful and positive relationships with their brothers or sisters, unless there are specific circumstances that suggest otherwise, and it is in the best interests of the child to separate them.

Types of Custody in Vietnam

In Vietnam, two primary types of custody exist: sole custody and joint custody.

  • Sole Custody. Sole custody is granted when one parent assumes full responsibility for the child’s upbringing. The non-custodial parent retains certain rights and responsibilities, such as visitation rights and participation in major decisions concerning the child’s upbringing.
  • Joint Custody. Joint custody involves both parents sharing responsibility for raising the child. The feasibility of joint custody depends on various factors, including the parents’ ability to cooperate effectively and maintain a healthy co-parenting relationship.

Rights of the Non-Custodial Parent

Even if one parent is granted sole custody, the non-custodial parent still has certain rights and responsibilities:

  • Visitation rights and their limitations. The non-custodial parent typically has visitation rights, allowing them to spend time with their child at specified intervals. However, these visitation rights may be subject to certain limitations imposed by the court.
  • Participation in major decisions concerning the child’s upbringing. The non-custodial parent may have a say in significant decisions related to the child’s education, healthcare, and general well-being.

Child Support and Financial Responsibility

Child support is an essential aspect of ensuring a child’s well-being after divorce. In Vietnam, calculating child support involves considering various factors:

Calculation of child support

The level of support must be mutually determined by the party responsible for providing support and the recipient of support or their legal guardian, considering the actual income and capacity of the supporting party and the supporting party’s fundamental requirements. In the event of a failure to reach a consensus, they have the option to seek resolution through a court.

Factors influencing the amount and frequency

The court also considers factors such as the child’s needs, standard of living, and any special circumstances that may require additional financial support. If there is a valid justification, the level of support can be modified. Both parties must come to an agreement regarding the adjustment; if an agreement cannot be reached, they have the option to seek resolution through a court. If the individual responsible for providing support encounters significant financial hardship, rendering them unable to fulfill their support obligation, the parties may mutually decide to alter the manner of support or temporarily suspend it. Should they be unable to reach a consensus, they have the option to seek a resolution through a court.

Legal repercussions of not adhering to child support agreements

Failure to comply with child support agreements can result in legal consequences for the non-compliant parent. If the party who is not directly responsible for raising the children purposefully neglects their agreed-upon support obligation, the other party has the right to seek court intervention to compel them to fulfill this responsibility. This court request will be processed as a support dispute case at the local People’s Court where the supporting party resides or works, in accordance with Article 28, Clause 5 and Article 39, Clause 1 (a) of the 2015 Code of Civil Procedure of Vietnam.

The required documents for the lawsuit are:

  • Petition for post-divorce support.
  • Authenticated copy of the parent’s ID.
  • Authenticated copy of the parent’s residency record.
  • Divorce decree or judgment.
  • Evidence of the supporting party’s income.
  • Authenticated copy of the child’s birth certificate.

Cultural Aspects Influencing Custody Decisions

Vietnam’s traditional views on family roles and structures can influence custody decisions. Traditional Vietnamese culture often places an emphasis on paternal authority within families. In Vietnamese society, the foundation is rooted in the family structure, which typically adheres to well-defined hierarchical roles.

There is a significant emphasis on valuing these roles within legal contexts. Within families, fathers traditionally hold a central position and are tasked with providing for their family, overseeing their children’s upbringing, and making decisions on behalf of the family. Mothers, on the other hand, traditionally assume responsibilities related to their children’s well-being, health, self-care, and nutrition. They are also expected to engage in domestic duties and play a central role in childbearing.

This cultural perspective may influence how courts approach custody decisions with the purpose of assessing the child’s best interests.

Modifications and Appeals in Custody Decisions

Custody agreements are not set in stone; they can be revisited under certain circumstances:

  • Grounds for revisiting custody agreements. Changes in circumstances or evidence that demonstrate a significant change in a parent’s ability to care for the child may warrant revisiting custody agreements.
  • The legal process for making modifications. Modifying custody agreements requires following specific legal procedures, which may involve filing petitions or motions with the appropriate court.
  • Importance of legal counsel during appeals. Seeking legal counsel is crucial when appealing custody decisions or pursuing modifications to ensure compliance with legal requirements.

Navigating child custody complexities amidst divorce in Vietnam requires a comprehensive understanding of Vietnamese family law, cultural influences, and an unwavering commitment to safeguarding children’s well-being throughout the process. If you have any inquiries or uncertainties regarding this matter, our team of skilled corporate attorneys can be reached at letran@familylawyers.vn. Feel free to contact us at any time for expert guidance and assistance.

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