One of the concerns of couples under divorce is the custody right and the conditions of contending for the custody right. In practice, if a couple cannot reach an agreement and they have to contend for the custody right upon divorce, the court shall assign a child to the father or the mother to take care of him/her based on the factors provided in Article 81 of the Law on Marriage and Family 2014, including:
- The child’s rights and benefits in every aspect;
- For a child older than 07 years old, the court shall consider his/her wishes; and
- Custody of a child less 36 months shall be assigned to his/her mother, except for the case that the mother is not able to directly care for, nurture, and educate the child, or the parents have other agreements which are appropriate for the child’s
In practice, in order to consider which parent that best meets the conditions of getting custody in a divorce, the court shall consider the ability to meet conditions of ensuring the child’s comprehensive development on physical and mental aspects, the social relationship of both parents in order to ensure the children legistimate rights of the child.
Therefore, there are many divorce cases where either parent, who wants to contend for the custody right upon divorce, tries to prove that he/she can provide the child with the best living conditions (accommodation, education, entertainment, recreation, etc.) and also mental conditions (available time for loving, taking care of and educating the child, etc.) or gives evidence that the other is not physically and mentally qualified to take care of the child.
Normally, the mental factors are more easily proved and often applied in practice. For example, a parent can provide a written confirmation of family members, neighbors, and the head of the neighborhood/hamlet to prove that the other parent who is fighting for custody, often commits family violence, does not love his/her child and could be a bad pattern for the child, or cohabits with another person. On the material aspect, a parent can provide evidence that the actual income of the other parent is not enough to raise the child or provide the child with the basic standard of living.
Especially, when handling the custody right upon divorce in case the a couple has more than one child, the court will verify their respective conditions to decide who deserves to get custody for all children or to separate the children for each parent, based on the actual capability of the parents. The Court may base on the income of a person to determine how many children a parent can raise, at the same time take other conditions of getting custody into consideration.
The consideration and collection of opinion of children of 07 years old or older shall comply with clause 3 of Article 208 of the Civil Proceedings Code 2015. In practice, point 26, section IV of the Response No. 01/2017/GD-TANDTC of the Supreme People’s Court on 07 April 2017 provides the guidance on this issue as follows: “… to ensure the rights of the children, the court must collect the opinions, consider the desire of children of 07 years or older; the way of collecting opinion must be friendly. However, the Court shall consider the comprehensive interests of the children to decide the assignment of the children to a parent”. Therefore, in the fight of the custody right upon divorce, there are the cases where a parent successfully convinces the child of 07 years or older to live with her/him, but if such person cannot ensure the comprehensive interests of the child in comparison with the other, she/he may be not the parent that best meets the conditions of getting custody and becomes the loser.