Contents
1. Determination of the joint child of the spouses
Pursuant to Article 88 of the Law on Marriage and Family 2014. then the determination of joint children of spouses is carried out according to the following principle:
- Children born during marriage or because the wife becomes pregnant during marriage are joint children of the spouses.
- Children born within 300 days from the time of termination of marriage belong to the case where the wife becomes pregnant during the marriage period, therefore, is also identified as a common child.
- Children born before the date of marriage registration and recognized by parents as joint children of the spouses. This includes cases where parents adopt jointly, i.e. joint adoptions are also identified as joint children of husband and wife.
In addition, Article 94 of the 2014 Law on Marriage and Family also recognizes that children born in the case of surrogacy for humanitarian purposes are joint children of the spouses through surrogacy from the time the child is born.
2. Conditions for gaining custody
Pursuant to the provisions of Article 81 of the Law on Marriage and Family 2014, the care, nurture and education of children after divorce will be handled as follows:
- Parents still have the right and obligation to look after, care for, nurture and educate their minor children, adult children who have lost their civil act capacity or are incapable of working and have no property to support themselves;
- Spouses agree on direct custody of children, obligations and rights of each party after divorce for children;
- In case of failure to reach an agreement, the Court shall decide to assign the child to a direct custody party based on the child’s interests in all aspects; If your child is at least 07 years old, your child’s wishes must be considered.
- Children under 36 months of age shall be assigned to their mothers for direct custody, unless the mother is not qualified to directly look after, care for, nurture or educate the child or the parents have other agreements suitable to the interests of the child.
3. Request to change direct custody of children after divorce
The court settles a request to change the direct custody of children after a divorce when one of the following grounds exists:
- Parents have an agreement on changing the direct custody of the child in accordance with the interests of the child. This ground belongs to cases where there is a request to change the direct custody of the child but no dispute arises;
- The person who directly raises the child is no longer eligible to directly look after, care for, nurture and educate the child.
Legal basis: Clause 2, Article 84 of the Law on Marriage and Family 2014.
The subject who has the right to request a change of direct custody of the child is determined as follows:
- In case the parents agree on the change of the direct custody of the child in accordance with the interests of the child, the parent shall jointly request the Court to settle the civil matter (without dispute).
- The parent is not the direct custodian of the child who wants to regain custody of the child;
- On the basis of the interests of children, the following individuals, agencies and organizations have the right to request a change of direct custody of children: Relatives; State management agency in charge of family; State management agencies for children; Women’s Union.
Legal basis: Article 84 of the Law on Marriage and Family 2014.
4. Procedures for resolving child custody disputes after divorce
- Competence
Pursuant to Clause 1, Article 28 of the 2015 Civil Procedure Code, disputes over child custody after divorce fall under the jurisdiction of the People’s Court.
- Order of execution
The order of procedures for settling child custody disputes after divorce is carried out as follows:
Step 1: Prepare the dossier and submit the petition to the competent People’s Court.
The petition includes:
- Petition according to Form No. 23-DS issued together with Resolution 01/2017/NQ-HDTP dated January 13, 2017 of the Council of Judges of the Supreme People’s Court;
- Proof of identity of the parent (copy of y);
- Divorce judgment/decree (copy y);
- Your child’s birth certificate (copy y);
- Documents and evidence proving the request to change the custody of the child;
- Other relevant documents.
Step 2: The court considers the application and accepts it according to regulations
Step 3: Preparing for trial
Step 4: Take the case to trial at first instance
Step 5: Appeal and carry out the appellate procedure of the case (if any).
Legal basis: From Articles 186 to 315 of the Civil Procedure Code 2015.
To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance for Child custody dispute
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