Child custody rights after divorce according to current law

When resolving a divorce, the most common dispute is about child custody rights after divorce. However, not all people understand the legal provisions of this dispute. Therefore, in the following article, we will cover issues related to child custody rights after divorce so that readers can better understand the legal provisions in this case.

Child custody rights after divorce according to current law

Regulations on custody rights of children after divorce

In order to ensure the legitimate rights and benefits of the parties, the Law on Marriage and Family 2014 provisions about looking after, caring for, raising, and educating children after divorce in Article 81.

• 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 an 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 an 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.

According to the above provisions, when implementing the divorce procedure, the Husband and wife need to make an agreement on the custody of the children will belong. If an agreement cannot be reached, at this time the Court will base on the children’s benefits in all aspects (in case the child is 07 years old or older, the child’s wishes and aspirations must be considered) and based on the law on Marriage and family to resolve custody disputes after divorce.

Principles of resolving child custody disputes after divorce

• Firstly, children under 36 months old will have priority custody rights belonging to their mothers.
• Secondly, for children from 3 to 7 years old, the mother’s and father’s custody rights are equal.
• Thirdly, if the child is over 7 years old, the Court must consider the child’s wish and record it in writing.

This principle is consistent with the actual situation, as well as the humane way of handling child custody after divorce. Accordingly, when the child is under 36 months old, at a very young age, it needs a lot of care from the mother, so the custody of the child after the divorce will be given priority to the mother. However, if the mother does not meet the basic conditions to raise the child or the parents have an agreement that best suits the benefits of the child, custody rights after the divorce may change.

When the child is from 3 to 7 years old, the custody of the child is equal between the parents. The parties can agree on child custody, if not, the Court shall base on actual conditions such as material and spiritual to ensure the ability to raise and take care of the child to appoint either of them to directly raise the children.

When the child is over 7 years old, at this time, the child’s cognitive ability is full, so it is necessary to pay attention to the child’s wishes that the child wants to live with the father or mother so that the Court can base the decision accordingly.

In which case parents do not have child custody rights after divorce?

According to Clause 4 Article 84 of the Law on Marriage and Family 2014, and Article 47 of the Civil Code 2015, which case parents do not have custody of a child after divorce is as follows:

• parents are both incapacitated persons; 
• parents have limited cognition or behavior control; 
• parents have limited capacity for exercise; 
• parents have their parental rights restricted by a court; 
• parents do not have the means to care for or educate such minors and the parents request the minor to be a ward.

When in one of these cases, the parents are not eligible to be assigned custody of their children after divorce, the custody of the children will belong to the guardian.

Conditions for reclaiming child custody rights

According to Article 2, Article 84 of the Law on Marriage and Family 2014, the change of person directly raising children will be resolved if one of the following conditions is met:

The parents agree on a change of the person directly raising a child in the interests of this child

when a court’s legally effective judgment or decision and has been determined who has the right to directly raise the child, in this case, when the direct custodian is not able and has the conditions to raise the child, The parties may re-negotiate on changing the person directly raising the child to ensure that it is suitable for the child’s benefits and development.

The person directly raising the child no longer has the conditions to directly look after, care for, raise and educate the child.

In this case, the conditions for reclaiming child custody when suing at the Court include:

• Subject conditions

The person directly raising the child must be a person with full legal capacity, good moral character, and dignity, and not in the case of restricted parental rights over children in Article 85 of the Law on Marriage and Family 2014).

• Material conditions

Proved by having assets demonstrated by having a job, stable income, legal accommodation, and meeting the essential needs for the child’s life.

• Mental conditions

Proven by being able to provide conditions for children to have a good living, learning, and playing environment, ensuring their child’s spiritual and personality development in the future.

After the divorce, if it is not possible to agree on the change of the person directly raising the child, you can request the reclaim of child custody rights needs to present the conditions listed above to prove that he has good conditions to directly look after, care for, nurture and educate children. From there, the Court will consider, evaluate and settle the petition.

Procedures for claiming child custody rights

Components of the dossier and procedures include:

Components of the dossier

• Lawsuit petition (The lawsuit petition form is made according to form No. 23 – DS issued together with Resolution 01/2017/NQ-HDTP of the Council of Judges of the Supreme People’s Court issued on January 13, 2017).
• List of documents and evidence enclosed with the lawsuit petition (Clause 5, Article 189 of the Civil Procedure Code 2015).
  • Court’s divorce judgment/decision;
  • Child’s birth certificate (copy);
  • Household registration book, identity card (copy);
  • Documents and evidence as a basis for changing child custody rights.

Implementation procedure

According to the provisions of the Civil Procedure Code 2015 on the process of settling child custody claims when they have a Court judgment/decision, the procedure is as follows:

• Step 1: Prepare a complete application.
• Step 2: File a lawsuit petition to the Court according to the provisions of Article 190 of the Civil Procedure Code 2015.
• Step 3: After receiving the valid dossier, the Court will issue a notice of payment of the court fee advance.
• Step 4: Pay the court cost advance and submit the court fee advance receipt to the Court.
• Step 5: The court accepts civil lawsuits, proceeds to the settlement of civil lawsuits according to general procedures, and issues a judgment or decision to serve lawsuit settlement.