How to win custody of children when husband remarries according to Vietnamese law?
Do you wonder how is the regulation on changing the person directly raising children after a divorce? Do you wonder if you can get custody of your children when your husband remarries? What documents need to be prepared to win custody of children when the husband remarries? What procedures need to be done to win custody of children when the husband remarries? How much does it cost to sue for child custody when the husband remarries? To answer the above question, today, LSX Lawfirm will give you an article about “How to win custody of children when husband remarries according to Vietnamese law?“, as follows:
Legal grounds
Law on Marriage and Family 2014
What are the regulations on changing the person directly raising children after a divorce?
To ensure the right of children to be cared for, nurtured, and educated in the best conditions. The law allows the change of the person directly raising the child. The change of the person directly raising the child shall be settled when there is one of the following grounds:
Case 1: Parents can reach an agreement on the change of the person directly raising the child in accordance with the interests of the child.
Case 2: The person directly raising the child is no longer eligible to directly look after, care for, raise and educate the child. Subjects who have the right to request to change the person directly raising the child, in this case, include: Relatives; State management agencies on family; State management agencies on children; Women’s Unions. The court is the body that handles the request for change of the person directly raising the child when it considers that the request is in accordance with the provisions of the law.
Case 3: If deeming that both parents are ineligible to directly raise the child, the court shall decide to hand over the child to the guardian according to the provisions of the Civil Code.
Can I get custody of the children when my husband remarries?
As analyzed above, the change of the person directly raising the child is resolved when there is one of the bases in the above content. Accordingly, if the husband and wife can reach an agreement to reach a final decision, they can request the Court to change the person directly raising the child in accordance with the interests of the child. The agreement to change the person directly raising this child of the husband and wife must come from the voluntariness of both parties, must come from the interests of the child, and be expressed in writing.
Courts settle disputes over child custody based on the principle of ensuring the children’s interests in all aspects. Therefore, in order to claim custody of a child, parents need to prove that they are eligible to raise a child. Specific conditions include:
Material conditions for raising children:
The parent who wins custody of the child after a divorce needs to prove that he/she is financially qualified to raise the child or that the person raising the child no longer has the material conditions to raise the child. Physical conditions include:
Stable accommodation conditions;
Working conditions and income to raise children
Mental conditions for raising children:
The comprehensive development of children depends not only on physical factors but also on mental factors. When considering assigning children to whom to adopt, the Court also considers the mental conditions of the parents to make a decision. Mental issues that need to be proven to win custody include:
Prove you have enough time; are healthy enough; good morality; … to take care of children;
Proof that the spouse is raising children when remarriage does not have enough time; health; living together with a new family does not guarantee the children’s rights to study and play;
What documents need to be prepared to win custody of children when the husband remarries?
You need to prepare a set of documents to initiate a lawsuit to change the person directly raising the child, including the following documents:
Complaint petition (under Form No. 23-DS issued together with Resolution 01/2017/NQ-HDTP)
Divorce decisions and judgments;
Copy of identity card or other valid identification papers;
Copy of household registration book;
Child’s birth certificate;
Evidence of wanting to change direct custody of the child.
What procedures need to be done to win custody of children when the husband remarries?
First, you can negotiate with your ex-husband to change the person directly raising the child. If the two sides reach an agreement, ask the court to recognize the agreement. If in case your husband does not agree to let you directly raise the children, you can file a lawsuit to a competent court to ask to change the person directly raising the children
Step 1: Prepare the dossier and submit it to the competent authority
After preparing the above-mentioned documents, you submit the dossier together with the relevant document to the district-level People’s Court of the place where the defendant resides or works – the person who is directly raising the child is the agency with jurisdiction over the matter. decision (based on the provisions of Article 39 of the Civil Procedure Code 2015).
After receiving the file, the Chief Justice of the Court will assign a Judge to consider the petition to regain custody of the children when the husband remarries.
In case the dossier is incomplete, the Court shall request the applicant to initiate a lawsuit to supplement the dossier within the time limit fixed by the judge but not exceeding 01 months. Except for special cases, it can be extended but not more than 15 days.
In case the court considers that the dossier is complete and valid, the Court will issue a notice to the person requesting to regain custody of the child when the husband remarries pays the court fee advance, and then enters the case acceptance book.
Step 2: Preparation for trial
During the preparation time for the first-instance trial of the case, the Court conducts mediation so that you and your wife can come to an agreement on regaining custody of the children when the husband remarries.
At the mediation session, you have the right to present the evidence that when the wife remarries, it will affect the life as well as the legitimate rights and interests of the children to protect the claim to regain custody of the children when the couple kisses.
The two sides propose the most satisfactory ideas and solutions on the basis of putting the children’s interests first.
The time limit for trial preparation in the case of regaining custody of children when the husband remarries at the first instance level is not more than 4 months.
In case of complicated circumstances or objective obstacles, the extension may not exceed 02 months.
After the husband and wife have reconciled on the matter of changing the person directly raising the child when the wife remarries, if:
In case you and your wife come to an agreement so that you are the one to directly raise the children when your husband remarries, the court will make a record of successful conciliation.
Within 07 days from the date the minutes of successful conciliation are made, if you or your wife do not change your mind about this agreement, the judge will issue a decision to recognize the agreement so that you are the one to directly raise the children when remarried husband.
In case after conciliation, you and your wife still cannot come to a common voice and there is still a dispute about who directly raises the child when the husband remarries, the Court shall decide to bring the case to trial.
Step 3: Open a court to settle and issue a judgment/decision
Within 1 month from the date of issuance of the decision to bring the case to trial, the court must open a trial session.
If there is a legitimate reason, the extension may be extended by 1 month.
At the trial, the Trial Panel considers the opinions of the parties and provided evidence as well as verified information.
If there are grounds to show that your ex-husband is no longer eligible to directly raise children, the Trial Panel will decide to hand over the children to you to directly take care of and raise them.
How much does it cost to sue for child custody when the husband remarries?
According to the List of Court Fees and Fees enclosed with Resolution 326/2016/UBTVQH, the first-instance court fee for a dispute to regain child custody when the wife remarries is 300,000 VND (unless you are exempted or reduced). pay court fees according to Article 12 of Resolution 326/2016).
Plaintiffs and defendants who make counter-claims against the plaintiffs and persons with related interests and obligations who have independent claims in civil cases must pay first-instance court cost advances, and the appellants according to the procedures. The appellate court must pay the appellate court fee advance, except for cases where the court fee advance is exempted or not required.
The involved parties must bear the first-instance court costs if their requests are not accepted by the Courts, except for cases where they are exempted or do not have to bear the court costs.
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Related questions
According to Clause 2, Article 84 of the Law on Marriage and Family 2014, the change of person directly raising children shall be settled when there is one of the following grounds:
– The parent has an agreement on the change of the person directly raising the child in accordance with the child’s interests; The person directly raising the child is no longer eligible to directly look after, care for, raise and educate the child.
Deciding who has custody of a child after divorce will depend on many factors, in order to ensure all aspects of the child’s interests in terms of accommodation, education, care conditions, etc. My opinion is only for reference. consultation, consideration of wishes, is not an opinion that completely determines who has the right to directly raise children.
If the husband and wife can reach an agreement to reach a final decision, they can ask the Court to change the person directly raising the child in accordance with the interests of the child. The agreement to change the person directly raising this child of the husband and wife must come from the voluntariness of both parties, must come from the interests of the child, and be expressed in writing. In case the husband and wife cannot reach an agreement on the change of the person directly raising the child, the husband – the person requesting the change of the person directly raising the child must prove that the wife is no longer eligible to directly raise the child. caring for and educating children affects their rights and interests
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