Date: 30 November 2021
Through this article, BLawyers Vietnam would like to introduce to you a list of 20 FQAs about common children in the divorce settlement.
1. What is a common child?
By laws, the common child has the definition as follows:
- A child who is born or conceived by the wife during the marriage period. In case a child who is born within 300 days from the time of termination of a marriage relation shall be regarded as a child conceived by the wife during the marriage period.
- A child who is born before the date of marriage registration and his/her parents recognized as their common child.
- In the case of altruistic gestational surrogacy, a child is the common child of the husband and wife who asks for such gestational surrogacy from the time this child is born.
Of note, in case a parent does not recognize a child, he/she must have evidence and the Court shall determine/ decide such non-recognition.
2. Is it necessary to consider the opinions of the common child about his/her desire to live with his/ her father or mother when the parents get a divorce?
In principle, husband and wife will agree on who will directly raise the common child, rights, and obligations s of each party towards the common child after the divorce. However, in case they fail to reach such an agreement, and a dispute arises over the child custody, the Court shall appoint one party to directly raise the common child, considering the child’s benefits in all aspects.
In case the common child is full 07 years old or older, the Court shall consider his/her desire.
3. What documents and evidence do the involved parties need to provide to request child custody?
The Court shall base on the child’s benefits in all aspects, therefore, for having the child custody after divorce, it is necessary to prove that parties have sufficient conditions both materially and mentally.
In terms of material conditions, a party needs to prove the following factors:
- Accommodation conditions: One party can provide the Court with legal documents about accommodation such as the Certificate of Land use right and ownership over houses and other assets attached to the land, House rental contracts, etc;
- Income conditions: One party can show a labor contract or bank statements to prove that he/she has a stable and lawful income to raise the child;
- Other documents and grounds to prove a party has sufficient conditions to raise the child after divorce.
In terms of mental conditions, a party must demonstrate the following factors:
- Time to take care and educate children: This is an important factor because the child needs parents’ care and education to form their personalities. To prove it, a party needs to provide a labor contract specifying the working time or personal working schedule, etc;
- Moral personalities: A party needs to prove that they have a healthy lifestyle, good moral character, the information can be collected through taking testimonies of neighbors, close people, etc;
- Living environment: A party can show their living environment by videos and photos to the Court to consider the conditions for the comprehensive development of the child.
In addition, a party may provide documents and evidence to prove that the other party has unfavorable conditions and be unable to raise and educate the child via factors like unemployment, low or unstable income, having violent behavior, having a criminal record/history, etc.
4. Is unilateral divorce a factor affecting child custody?
No, it is not. In principle, when a spouse requests a divorce and the conciliation at the Court fails, the Court shall permit the divorce. The Court’s settlement will be based on the fact that the spouse commits to domestic violence or seriously infringes upon their rights and obligations, which seriously affects the marriage and makes the marriage life impossible to last.
In addition, by law, if both parties cannot reach an agreement, the Court shall decide the child custody to one party based on the child’s benefits in all aspects.
Therefore, one party has the right to unilaterally divorce, and this is not a factor affecting child custody. The Court shall base on the material and mental conditions of the parents to decide who is the person to directly raise the child.
5. When the common child does not have a birth certificate, how to settle divorce?
By law, one of the documents to complete the dossiers for the divorce process is the child’s birth certificate. This document is especially important for the Court to determine the child custody and alimony obligations towards the common child.
If the spouse requests the Court to carry out divorce procedures, but their child does not have a birth certificate. Firstly, the two parties must make a birth certificate for their child. According to the laws, birth registrants shall submit declarations made according to a set form and birth certification papers to the civil status registration authority. If having no birth certification paper, a document of a witness certifying the birth shall be submitted. If there is no witness, there must be a written pledge of the birth; and for birth registration for children born by surrogate mothers, there must be a document proving the surrogacy as prescribed by law.
6. How to determine child custody if the couple has not yet registered their marriage?
By law, if a man and woman who fully meets the conditions for marriage as prescribed by the laws who cohabit as husband and wife without registering their marriage have no rights and obligations between husband and wife, but rights and obligations with the child are still established.
Parents have equal obligations and rights to jointly care for and raise their children. Therefore, when they are no longer living together, the decision on who to raise children directly is based on the principle of agreement. In case no agreement can be reached, the Court will base on the child’s benefit to determine who will directly raise them.
Thus, whether a man and a woman establish a marriage relationship, it does not affect the rights and obligations towards their children.
7. In case both husband and wife want to raise their child, how to resolve this matter?
In case both husband and wife want to raise the child, this is considered as a case where the two parties cannot reach an agreement. At this time, the Court will base on the child’s benefit to consider who will directly raise him/ her.
8. If the common child is under 36 months old, can the mother automatically get the child custody?
Yes, she can. According to the law, a child under 36 months of age shall be directly raised by the mother. However, there are exceptions where the mother cannot afford to directly look after, care for, raise and educate the child or otherwise agreed by the parents in the benefit of the child, the father will be the person having the child custody.
9. When can an involved party request the Court to limit the visitation rights of another party?
The laws stipulated that after a divorce, the person who does not directly raise a child has the right and obligation to visit and care for this child without being obstructed by any person. However, in case a party who does not directly raise this child takes advantage of his/her visit to and care for the child to obstruct or adversely affect the looking after, care for, raising, and education of this child of another party, a party who directly raises a child can request the Court to restrict the other one’s right.
10. How are the laws regulated if the party directly raising the common child prevents another party from visiting the child?
In principle, no one can obstruct the visitation rights of the person who does not directly raise the child. In case the person who prevents the right to visit and take care of between the parents and child, this person will be subject to a warning or a fine of up to VND300,000.
11. Which cases are considered to restrict the custody of the minor child?
According to regulations, parents have their rights toward their minor children restricted in the following cases:
- Being convicted of one of the crimes of intentionally infringing upon the life, health, dignity, or honor of this child or commits acts of seriously breaching the obligations to look after, care for, raise and educate children;
- Dispersing the child’s property;
- Having a depraved lifestyle; or
- Instigating or forcing the child to do things that are against the laws or social ethics.
12. Is it possible to change the person directly raising the child after divorce?
Yes, it is. According to the laws, a parent, or individual, or organization may request the Court to change the person directly raising the child. The change of the person directly raising the child shall be settled when there is one of the following grounds:
- The parents have an agreement on the change of the person directly raising the child per the benefits of the child; or
- The person directly raising the child is no longer has sufficient conditions to directly look after, care for, raise and educate the child.
Of note, upon change of the person directly raising a child aged full 7 or older, this child’s desire shall be taken into account. When seeing that both parents fail to have sufficient conditions to directly raise a child, the Court shall decide to assign this child to a guardian by the law.
13. How is the determination of parents for a common child with foreign elements regulated?
The Vietnamese civil status registration agency is competent to settle the identification of father, mother, and child without any dispute between Vietnamese citizens and foreigners, between Vietnamese citizens and each other where at least one party resides overseas, between foreigners and at least one party permanently residing in Vietnam by the Law on civil status.
14. When the Court decided a party had child custody, then such party went abroad and left the child with other family members. Does the other party have the right to request the Court to consider child custody?
According to the laws, when the person who directly raises the child is no longer fully qualified to look after, care for, nurture, and educate the child, the person who does not directly raise the child may request the Court to consider changing the person directly raising the child.
However, the prevailing laws have no specific regulations on how to consider a person ineligible to directly look after, care for, and educate the child. Therefore, in case of wishing to change the child custody, the requester must provide the Court documents and evidence to prove that the other party does not have sufficient conditions to raise children such as income, time of caring, education, accommodation, etc.
15. In case the divorce of husband and wife with one person living abroad and having the common child under the age of 18 living in Vietnam, how will the Court handle it?
If there is a dispute over the custody of a child under 18 years old in Vietnam between a person living in Vietnam and a person living abroad, the Court may settle it in accordance with Vietnamese law. Specifically, in principle, the Court may decide to assign the child to someone who can directly raise the child. It can be seen that the person who is currently living in Vietnam is acceptable.
16. How are obligations, rights on support, and minimum level of support for the common child after divorce determined?
Under Article 71.1 of Law on Marriage and Family (“LOMF 2014”), the spouse has equal obligations and rights to jointly care for and raise the common child.
In addition, Article 81.1 of LOMF 2014 regulated that after the divorce, the spouse still has rights and obligations to look after, care for, raise and educate the common child. This means that the rights and obligations towards the common child always belong to the father and mother regardless of marital status.
Regarding the support level, the prevailing laws have no regulation on a specific level of support. Instead, according to Article 116.1 of LOMF 2014, the parties can agree on their own based on the conditions, the actual income of the supporter, and the essential needs of the common child. If no agreement is reached, the parties can request the Court to settle.
17. What expenses are considered by the Court as support expenses for the common child when one party requests the other party?
The prevailing laws do not regulate specific guidance for the Court to consider support expenses requested by a party. However, in the spirit of guidance in Resolution No. 02/2000/NQ-HDTP dated 23 December 2000 of the Council of Judges of the Supreme People’s Court (“Resolution No. 02“), the support expenses for the common child may be based on the child’s interests in all aspects, especially conditions for physical development, assurance of learning and conditions for good mental development; comprehensive assessment of the common child’s normal living, learning and development needs, especially the psychological stability of the common child after the parents’ divorce. Although Resolution No. 02 guides the provisions of LOMF 2000, it does not conflict with the provisions of LOMF 2014. Therefore, the spirit of Resolution No. 02 can still be applied by the Court to determine the support expenses upon request by a party.
18. How is the support obligation with foreign elements determined?
Pursuant to Article 129 of LOMF 2014, the support obligation with foreign elements shall comply with the law of the country where the support requester resides. Thus, if the support requester resides in Vietnam, the support will be done in accordance with the laws of Vietnam. At that time, the agency handling this request will be the competent state authority of Vietnam.
In the case of a person who directly raises the common child and has a claim for child support after the divorce is living abroad, the support will be made according to the law of the country where he/she is residing. If he/she is residing in Vietnam, the law of Vietnam shall be complied with; If the person does not have a place of residence in Vietnam, the law of the country where the person is a citizen shall be applied to solve support issues.
19. Is the child custody Judgment issued by a foreign Court valid in Vietnam?
Yes. It is. According to Articles 423.1.a and 423.1.b of Code of Civil Procedure 2015 (“CCP 2015”), the judgments/decisions on marriage, family issued by the foreign Courts that are provided for in international treaty to which both Vietnam and such country are signatories or do not sign an International treaty with Vietnam that contains regulations on recognition and enforcement of judgments and decisions of foreign courts on the basis of the principle of reciprocity shall be recognized and enforced in Vietnam.
20. Where according to a judgment in Vietnam, the mother with Vietnamese nationality is entitled to custody of the child, but according to the decision of a foreign court, the father with foreign nationality has custody of the child, how will this case be handled?
According to Article 439.5 CCP 2015, Civil judgments/decisions of foreign Court that shall not be recognized or enforced in Vietnam when such civil cases have been settled in legally effective civil judgments/decisions of Vietnamese Courts, or before the foreign agencies in charge accepted such cases, they have been accepted and are being proceeded by Vietnamese Courts, or such civil cases have been settled with civil judgments/decisions issued by Courts of third countries which have been recognized and allowed to be enforced by Vietnamese Courts.
Therefore, in this case, when the judgment of the foreign court has not yet been carried out the procedures to be recognized in Vietnam and the judgment in Vietnam has decided that the Vietnamese mother has the right to raise the child, this judgment will be applied, and the judgment of the foreign Court will not be recognized and enforced in Vietnam.
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