On October 14, 2022, the Chief Justice of the Supreme People’s Court issued Decision No.323/QD-CA on the publication of 04 case laws. In particular, in the field of marriage and family, there is Case Law No. 54/2022/AL determining custody of children under 36 months old in cases where the mother did not directly care for, nurture, or educate children previously.
Clauses 2 and 3, Article 81 of the 2014 Law on Marriage and Family on the right to look after, care for, nurture, and educate children after divorce (hereinafter collectively referred to as "The right to care for children") stipulate as follows:
"Article 81. Child rearing and education after divorce
- 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 either of them to directly raise the children, taking into account the children’s benefits in all aspects. If a child is full 7 years or older, his/ her desire shall be considered.
- A child under 36 months of age shall be directly raised by the mother, unless the mother cannot afford to directly look after, care for, raise and educate the child or otherwise agreed by the parents in the interests of the child”.
Thus, the current law sets out the precedence principle for the mother in determining custody of a child under 36 months. The father is entitled to custody only if he could prove that (i) the mother is not qualified to directly care for, nurture and educate the child; and (ii) the parent has other agreements consistent with the child's interests.
In Case Law No. 54/2002/AL, the Court stated that the child custody belongs to the father on the basis of an argument about the role of the mother and father to the child from infancy to the time of the custody dispute, thereby made a judgment towards protecting the best interests of the child. Specifically, at the Decision No. 01/2019 /HNGĐ-GĐT dated February 27, 2019 of the High People's Court of Da Nang on the case of “Divorce and child custody dispute” in Dak Lak province between the plaintiff Pham Thi Kieu K and the defendant Mr. Nguyen Huu P, the High People's Court of Da Nang City provided that: the mother left when the child was very small without caring for, taking care of, nurturing or educating him; instead, the child had been raised by the father in good conditions and was used to that condition and environment. Separating the child from the father and leaving it to the mother to nurture would cause unnecessary disturbances to the child's life, not beneficial to the child. Therefore, the Court decided to: continue to leave the child under 36 months old (grandchild T) to the father (Mr. P) to directly raise.
The argument and judgment of the High Court of Da Nang did not completely coincide with Article 81 of the Law on Marriage and Family mentioned above but was in line with the principle that “the State and society and families shall protect and support children” stipulated in Article 2.4 of the 2014 Law on Marriage and Family. This content is also the principle acknowledged in the Constitution and relevant legal documents of Vietnam.
Case Law No. 54/2022/AL shall be applicable as of 11/15/2022.
Comment: