Regulations on determining the custodian of children in case of divorce according to Vietnamese law

1. Determining the custodian of children when divorcing

According to the provisions of marriage and family law, divorce is the termination of the husband-wife relationship by the effective legal judgment, decision of the court. After divorce, parents still have the right, obligation to care for, nurture, educate children who are minors, children who are legally incapacitated or unable to work and do not have assets to support themselves. Determining the custodian of children after divorce according to Article 81 Marriage and Family Law 2014. Accordingly:

- Husband and wife agree on the direct custodian of the child, the rights and obligations of each party after divorce regarding the child; in case of failure to reach an agreement, the Court will decide on the custody of the child based on the best interests of the child; if the child is 07 years old or older, their wishes must be considered.

- Children under 36 months old are entrusted to the mother for direct care, except when the mother is not qualified to directly care for, nurture, educate the child, or if the parents have another suitable agreement for the child's best interests.

2. Proving the conditions for raising children economically, spiritually such as:

- Economic conditions: Proving monthly income, ownership of assets, stable housing... to provide conditions for the child's daily activities, education, recreation...

- Spiritual conditions: Demonstrating the ability to spend enough time caring for, educating, showing love to the child; proving the ethical qualifications to raise and educate the child.

Additionally, it can also be proven that the other party is not qualified to claim custody of the child, such as: Frequently engaging in violent behavior, lacking time to care for the child or failing to provide income, assets, and stable housing to support the child...

3. Is it possible to prevent the non-custodial parent from visiting the child?

In Articles 82, 83 Marriage and Family Law 2014 it states the rights and obligations of parents who do not directly care for the child after divorce and the rights and obligations of parents who directly care for the child towards the non-custodial parent after divorce. According to:

- The non-custodial parent has the right, obligation to visit the child without any hindrance.

If the non-custodial parent abuses the visitation right to obstruct or negatively affect the care, nurturing, education of the child, the direct custodian of the child has the right to request the court to restrict the visitation rights of that person.

- The parents who directly care for the child and other family members are not allowed to obstruct the non-custodial parent in visiting, caring for, nurturing, educating the child.

Therefore, the direct custodian of the child and family members are not allowed to prevent the non-custodial parent from visiting, caring for, nurturing, educating the child.

In cases where intentional obstruction of visitation or care for the child occurs, penalties will be imposed according to the provisions of Article 56 Decree 144/2021/NĐ-CP on administrative penalties in the fields of security, order, social safety; prevention of social evils; fire prevention, firefighting; search and rescue; prevention of domestic violence. Specifically, a fine of 5,000,000 VND to 10,000,000 VND will be imposed for obstructing the right to visit and care between grandparents and grandchildren; between parents and children, except when parents are restricted in visitation rights by court decision; between husband and wife; among siblings.