What are the procedures for changing the direct caregiver of a child after divorce with a foreign factor in Vietnam?

1. Regulations on changing the direct caregiver of a child after divorce while living abroad

Based on Subsection 5 of Section IVOfficial Letter 89/TANDTC-PC 2020states:

After divorce, parents living abroad. Now, they have filed a lawsuit to change the direct caregiver of their shared child who is living in Vietnam, does this fall under the jurisdiction of the Vietnamese court?

Article 469, Paragraph 1 of the Civil Procedure Code concerning the general jurisdiction of the Vietnamese court in resolving civil cases with foreign elements states:

...d) Civil cases concerning civil relations where the establishment, modification, termination of that relationship occurs in Vietnam, the subject of that relationship is property within Vietnamese territory or activities performed within Vietnamese territory;...

The child living in Vietnam, in case of a dispute requesting a change of direct caregiver after divorce, which means a dispute regarding the direct child custody relationship occurring in Vietnam. Therefore, parents can file a lawsuit at the Vietnamese court regarding the change of direct caregiver for the child living in Vietnam, the Vietnamese court has jurisdiction to resolve as stipulated in Article 469, Paragraph 1 of the Civil Procedure Code.

However, the court needs to consider the provisions of Article 472 of the Civil Procedure Code to determine if the case falls under the scope of 'Return of the lawsuit, request or suspension of resolution of civil cases with foreign elements in cases of existing arbitration agreements, choice of foreign court agreements or existing foreign courts, arbitrators or other competent authorities of foreign countries to settle or the litigant is entitled to immunity from jurisdiction.'

2. How are the conditions for changing the direct caregiver of a child regulated?

Based on Article 84 of the Law on Marriage and Family 2014, it is stipulated:

Changing the direct caregiver of a child after divorce

1. In cases where requested by parents or individuals, organizations specified in this Article, the court may decide to change the direct caregiver of the child.

2. The change of direct caregiver of a child is resolved based on one of the following grounds:

a) Parents agree on changing the direct caregiver of the child in the child's best interest;

b) The direct caregiver is no longer capable of directly caring for, nurturing, raising, and educating the child.

3. The change of direct caregiver of a child must consider the child's wishes from the age of 7 and above.

4. In cases where both parents are deemed unfit to directly care for the child, the court shall decide to entrust the child to a guardian as stipulated by the Civil Code.

5. In cases specified in sub-paragraph b of this Article, based on the child's best interest, individuals, organizations, or authorities have the right to request a change of direct caregiver of the child:

a) Relatives;

b) State management agencies on family affairs;

c) State management agencies on children;

d) Women's Union.

Therefore, changing the direct caregiver of a child is resolved based on one of the following grounds:

- Parents agree on changing the direct caregiver of the child in the child's best interest;

- The direct caregiver is no longer capable of directly caring for, nurturing, raising, and educating the child.