Change of Child Raising Person after Divorce

When divorce, children raising issue is very important and is always considered by the parties. Typically, parents always want the best for their children. However, there are also cases that the person who is raising that child unable to provide comprehensive benefits for the child. Then the person who is not directly raise the child may request for caregiver to ensure human rights.

 

ANT Lawyers would advise to customers some of the content in the issue of stipulating caregiver and change of caregiver after divorce.

The nursing, take care, educating and parenting after divorce

After divorce, parents are still obliged to look after, take care, educating, parenting minors or adults who are disabled, lost their civil act capacity, inability to work and have no property to support themselves.

The person who is not directly raises children have to provide rearing support.

Husband and wife agree on the person who directly raise the children, the rights and obligations of each party after divorce to their children; if no agreement is reached, the Court decided to assign one party to directly raise children based on the interests of that children in all aspects; if the children is nine years old or older, the wishes of the children must be considered.

In principle, children under three years of age are directly raised by the mother, unless the parties agree otherwise.

Change the person who directly raises children after divorce

For the benefit of the children, at the request of one or both parties, the Court may decide to change the child directly raising people.

The change of child directly raising people after divorce is conducted in case the people who directly raise the child does not guarantee the rights of the child in all aspects. Moreover, if the child is nine years old or older, we have to take into consideration the aspirations of the child.

ANT Lawyers- Marriage and family dispute law firm in Vietnam has experience in civil and family matters to advice clients whom are interested for such legal service in Vietnam. We assist our clients in the process of reviewing agreements, procedures and concerned matters in civil and family.

 

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How To Determine The Child Custody in a Divorce?

Upon divorce, in addition to dispute over property division, child custody dispute is also popular. How to determine the child custody in a divorce depends on many factors and the parties are suggested to consult with dispute lawyers in Vietnam in civil matters.  The following does not try to give legal advice but a brief opinions on the matters of concern for reference.

According to Vietnamese law, after a divorce, parents still have rights and obligations of looking after, caring for, raising and educating minor children or adult children losing their legal capacity or having no working capacity and no property to support themselves. The law always prioritizes agreement right of both parties. Accordingly, 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 one party to directly raise the children, based on the children’s benefits in all aspects. If a child is full 7 years or older, his/ her desire shall be considered. In addition, a under-36-months child shall be directly raised by the mother, unless the mother can not afford to directly look after, care for, raise and educate the child or otherwise agreed by the parents in accordance with the interests of the child.

In reality, opinion of the children is only regarded as orientation and reference for the Court to consider making decision, not as completely decisive meaning. The Court shall base on interests of the children to appoint one party to directly raise him/her, according to: living, current education of the children, occupation of the direct caretaker, accommodation condition after divorce, income, child care time… and some other elements of each party. Accordingly, the person being entitled to directly raise the children must prove themselves to provide the most favorable environment for normal development requirements of the children and have enough conditions for ensuring both economy and mental health. The person being entitled to directly raise the children must prove themselves to have enough material conditions (stable income, property, and accommodation…), mental condition (having enough time to be with the children, care for, raise them, always put the children at the forefront…) to make the children have more stable life and more developed than living with the other party. In addition, one of the parties can provide additional evidence to prove that the other party does not have enough material conditions and mental condition to raise the children or often has behaviors of violence, unstable income…

In case of request of a parent or individual, organization being entitled to request (Next of kin; The state management agency in charge of families; The state management agency in charge of children; The women’s union), the Court may decide to change the person directly raising a child. The change of the person directly raising a child shall be settled if there is one of the following grounds: (i) The parents agrees on change of the person directly raising a child in the interests of this child; (ii) The direct caretaker no longer has sufficient conditions to directly look after, care for, raise and educate the child. Like divorce settlement, desire of full-7-years or older child shall be considered in case of changing the person directly raising a child. Seeing that both parents fail to have sufficient conditions to directly raise a child, the Court shall decide to assign this child to a guardian.

Obligations and rights of indirect caretaker after divorce: (i) Respect the child’s right to live with the direct caretaker; (ii) Support this child; (iii) Visit and care for this child without being obstructed by any person after divorce. Direct caretaker is entitled to require the Court to restrict the right of the indirect caretaker if the latter takes advantage of his/her visit to and care for the child to prevent or adversely affect the looking after, care for, raising and education of this child.

In accordance with obligations and rights of indirect caretaker, direct caretaker also has obligations and rights toward indirect caretaker after divorce: (i) require the indirect caretaker to fulfill the obligations; (ii) require this person and family members to respect his/her right of raising the child; (iii) The direct caretaker and family members shall not prevent indirect caretaker from visiting, caring for, raising and educating this child.

To learn more about ANT Lawyers Marriage and Family or contact our lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at  +84 28 730 86 529.

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