After divorce, who gets custody of the child?
- Pham Ba Thien
- Aug 10
- 4 min read
Marriage and divorce are a matter of personal freedom. When a marriage is unhappy and fails to achieve its purpose, the couple will decide to end it. However, besides the relationship between husband and wife, a marriage also involves the relationship between parents and their children. Children are a vulnerable group that needs protection in a broken marriage. Especially minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves. Therefore, after a divorce, parents still have the right and obligation to look after, care for, nurture, and educate their minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves. The parents are then divided into The person who directly raises the child and The supporting person.
A. WHO DIRECTLY RAISES THE CHILD AFTER DIVORCE, OR RATHER, WHO GETS CUSTODY OF THE CHILD?
According to Article 81 Law on Marriage and Family 2014, there are three possible scenarios:
A child under 36 months of age: the mother who shall be directly raised the child, 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;
A child from 3 years old (36 months) to under 7 years old: 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;
A child is full 7 years or older: Regardless of whether husband and wife shall reach agreement on the person who directly raises their children or they fail to reach agreement, the Court shall appoint either of them to directly raise the children, the child’s desire shall be considered.
However, there is an exception where the Court appoint the father to directly raise a child under 36 months of age even if the mother wants custody. This case is recorded in Case law No. 54/2022/AL. The circumstances of this case were as follows: in a marriage and family dispute over custody of a child under 36 months of age, the mother left on her own when the child was very young (04 months of age) and didn't care for, look after, nurture, or educate the child. The father raised and cared for the child in good conditions, and the child had become accustomed to that living environment. Later, when they divorced, both the father and mother wanted custody.
In this case, the Court's view was that the child under 36 months of age should continue to be entrusted to the father for care and nurturing because the father had cared for and raised the child very well, had the necessary conditions, and the child was already used to that living environment. Entrusting the child to the father was done to avoid disruption and a negative impact on the child's normal development.
B. IN REALITY, IN MANY CASES, CHILDREN LIVE WITH THEIR GRANDPARENTS, UNCLES, OR AUNTS AFTER A DIVORCE. SO CAN A CHILD LIVE WITH SOMEONE OTHER THAN THEIR PARENTS?
Living with a parent is always the top priority. However, the law also provides for situations where both parents fail to have sufficient conditions to directly raise a child, in which case the Court shall decide to assign this child to a guardian (Clause 4, Article 84 Law on Marriage and Family 2014). A guardian can be an eldest brother or sister, grandparents, or a biological uncle or aunt (Article 52 Civil Code 2015).
C. CHANGE OF THE PERSON DIRECTLY RAISING CHILDREN AFTER DIVORCE
After a divorce, even if a parent has been granted custody, the person directly raising the child can still be changed. The parents, relatives, or the State Management Agency in charge of families and children, the Women's Union, can request the Court to change who directly raises the child when there is one of the following grounds: (1) The parents agrees on change of the person directly raising a child in the interests of this child; or (2) The person directly raising the child no longer has sufficient conditions to directly look after, care for, raise and educate the child (Article 84 Law on Marriage and Family 2014).
Therefore, when considering who will directly raise a child after a divorce, the most important factor is the child's overall best interests, prioritizing an environment where the child can be healthy physical, intellectual and moral development.
For more detailed information, to advice, or to request a representative to participate in litigation for child custody disputes, requests to change custody, or divorce in general, feel free to contact Minh Thien Law for further consultation.
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is not considered the viewpoint or opinion of any state agency in any case; and
does not constitute legal advice from Minh Thien Law and should not be applied to resolve any specific legal situation.
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