Hello LSX, my ex-husband and I have been living together for nearly ten years and have two children together. We are currently divorced but cannot agree on issues related to child support and daily living, so I want to take back custody of the children on my side. So about the matter “Regain custody of children after divorce under Vietnam law” Let’s find out with LSX in the article below.
Legal grounds
- Law on Marriage and Family 2014
What is child custody after divorce?
According to the provisions of Article 81 of the Law on Marriage and Family 2014, the care, care, rearing and education of children after divorce are as follows:
Article 81. The care, care, upbringing and education of children after divorce
1. After a divorce, parents still have the right and obligation to look after, care for, raise and educate their minor children and adult children who have lost their civil act capacity or are incapable of working, and have no property to support themselves according to the provisions of this Law, the Civil Code and other relevant laws.
2. Husband and wife agree on who directly raises children, obligations and rights of each party after divorce towards children; in case no agreement can be reached, the Court shall decide to assign the child to one party to directly raise it based on the child’s interests in all aspects; if the child is full 07 years old or older, the child’s wishes must be considered.
3. Children under 36 months of age shall be assigned to their mothers to directly raise them, unless the mothers are not eligible to directly look after, care for, nurture and educate the children or the parents have other agreements in accordance with their interests. child’s benefit.
What is the right to request a divorce settlement?
According to the provisions of Article 51 of the Law on Marriage and Family No. 52/2014/QH13 of the National Assembly:
“Article 51. Right to request divorce settlement
1. Wife, husband or both have the right to request the Court to settle the divorce.
2. Parents and other relatives have the right to request the Court to settle a divorce when one of the spouses, due to mental illness or other diseases, cannot perceive and control his/her own behavior. are victims of domestic violence caused by their husbands and wives, seriously affecting their lives, health and spirit.
3. A husband has no right to request a divorce in case his wife is pregnant, giving birth or raising a child under 12 months old.”
Thus, when the marriage life is not happy, the marriage purpose is not achieved as well as one of the other grounds that the marriage cannot last, the Court will consider and resolve the divorce. So, in this case, if he and his wife cannot agree on a consensual divorce, then he has the right to file for divorce unilaterally, without having to have his wife’s signature. Accordingly, for divorce procedures, you need to prepare a set of documents including:
– Application for unilateral divorce (apply for a form at the Court or according to the form)
– The original marriage registration certificate;
– A certified copy of your identity card and household registration book;
– Child’s birth certificate (if any)
– Certificate of land use right, property ownership (if any)
Therefore, when the Court decides to divorce, the Court will only divide the common property of the husband and wife, and the property of his parents will not be included in the division at all.
Is it possible to regain custody of children when there is a court judgment?
To be able to regain custody of children when there is a court judgment, based on Article 84 of the Law on Marriage and Family 2014, you need to prove that the person who obtained custody after the divorce is no longer eligible. directly look after, care for, nurture and educate your children (in terms of health, spirit, study …) and you must have enough conditions to ensure the benefits of your children in all aspects over your spouse. The Court will base on the above grounds to decide to change the person directly raising the child.
If your spouse reaches an agreement on custody of the children, you can file a lawsuit asking the Court to recognize the child custody agreement. If your spouse cannot come to an agreement, the dispute over the return of child custody falls under the jurisdiction of the Court under Article 28 of the Civil Procedure Code 2015, so you can file a lawsuit with the evidence. Just go to the People’s Court of the district where your spouse is residing.
In case the mother is deprived of custody of the child
Being convicted of one of the crimes of infringing upon the life, health, dignity and honor of the child with willful error or committing a serious violation of the obligation to look after, care for, raise and educate the child.
Dispersing your children’s property.
Have a depraved lifestyle.
Instigating or forcing children to do things that are against the law or against social morality.
Pursuant to Article 85 of the Law on Marriage and Family 2014.
How to regain custody of children after divorce?
File: The petition for child custody is issued together with Resolution No. 01/2017/NQ-HDTP.
Permanent residence
Notarized copy of national identity card/citizen identity card.
The court’s decision on determining the mother’s custody rights.
Certified copy of the child’s birth certificate.
Income certificate.
Certificate of police where the common child and the person directly raising the common child are living.
Procedures
In case the husband and wife cannot come to an agreement, the Court will settle the dispute over child rearing specified in (Clause 1, Article 28 of the 2015 Civil Procedure Code). The procedure is as follows:
Step 1: File a lawsuit petition to the competent court where the defendant is residing or working.
Step 2: The court considers the application. If the application is valid, the court will accept the case and issue a notice of acceptance for the plaintiff to fulfill the obligation to pay the court fee advance.
Step 3: The petitioner submits the receipt of the court fee advance to the Court that is handling the application.
Step 4: The court will verify the documents and evidence to conduct the conciliation.
Step 5: Open the first-instance Court session according to civil procedures. If one of the parties disagrees with the Court’s decision, one of the parties has the right to appeal within the statutory time limit.
Step 6: The time limit for settling the claim back for child custody is from 4 to 6 months from the date of acceptance of the case according to the provisions of this Law.
Pursuant to Clause 1, Article 28, Article 203 of the 2015 Civil Procedure Code.
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Frequently asked questions
Article 83 of the Law on Marriage and Family 2014 stipulates the obligations and rights of the father and mother directly raising children towards the person who does not directly raise the child after a divorce, specifically as follows:
“Article 83. Obligations and rights of parents directly raising children after divorce
Parents who directly raise children have the right to request those who do not directly raise their children to perform the obligations speciDividing land use rights after divorce in Vietnamfied in Article 82 of this Law; requesting the person who does not directly raise children and family members to respect their right to raise children.
Parents who directly raise children together with family members must not obstruct the person who does not directly raise children in visiting, caring for, nurturing and educating their children.”
According to Article 82 of the Law on Marriage and Family 2014, the rights of people who do not directly raise children after divorce are as follows:
“Article 82. Obligations and rights of parents who do not directly raise children after divorce
Parents who do not directly raise children have the obligation to respect their children’s right to live with the person directly raising them.
Parents who do not directly raise their children have the obligation to support their children.
After a divorce, the person who does not directly raise the child has the right and the obligation to visit the child without being obstructed by anyone.
If a parent who does not directly raise a child abuses visitation to obstruct or adversely affect the care, care, upbringing and education of the child, the person directly raising the child has the right to request the Court to limit the visit that person’s child.”
It is defined in Article 116 of the Law on Marriage and Family 2014 as follows:
The level of support shall be agreed upon by the person with the support obligation and the person receiving the support or his/her guardian, based on the income, actual ability of the person with the support obligation and the essential needs of the person with the support obligation. alimony; If no agreement can be reached, ask the Court to settle.
With good reason, the level of support may change. The change of support level shall be agreed upon by the parties; If no agreement can be reached, ask the Court to settle.
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