Child custody disputes are a common form of dispute upon divorce. So, how does the law regulate the right to raise a child under 36 months old? Can a father raise a child under 36 months old? In which cases is a mother not allowed to raise a child under 36 months old?

1. How is the right to raise a child under 36 months old regulated by law?

According to Clause 3, Article 81 of the Law on Marriage and Family 2014: “A child under 36 months of age shall be assigned to the mother for direct custody, unless the mother is ineligible to directly look after, care for, nurture, and educate the child, or the parents have an alternative agreement consistent with the child’s best interests.”

Thus, when parents divorce, if the child is under 36 months old, the right to direct custody is prioritized for the mother. However, there are 2 cases where the Court considers assigning the child to the father for direct care and nurturing:

• Case 1: Father and mother have an agreement on resolving custody rights. In nature, a divorce to win custody is a civil case. In civil relations, the Court respects the agreement of the parties. Therefore, in cases where the husband and wife reach a consensus for the husband to directly care for and nurture the child, the Court assigns the child to the husband. However, the agreement must ensure it is consistent with the child’s interests.
• Case 2: The mother is ineligible to directly care for, nurture, and educate the child. Cases where the mother is ineligible to directly care for and nurture the child can include specific instances such as: The mother is serving a prison sentence; The mother has lost her capacity for civil acts; The mother lacks the conditions to nurture the child, etc. In this case, the Court may consider allowing the father to nurture the child.

Thus, Vietnamese law stipulates very clearly that a child under 36 months old will be assigned to the mother. However, the father still has the right to raise a child under 36 months old if falling into one of the two cases above.

2. Evidence to prove winning custody of a child under 36 months old

2.1 Proving the mother does not have the conditions to directly nurture the child:

• The mother does not have a stable job, has no income, has many private debts, and has no stable residence. In addition, factors such as neglecting children, having no time to nurture, care for, and educate children are also considered.
• The mother has lost her capacity for civil acts, is missing, shows signs of mental illness, suffers from critical or incurable diseases, or has weak health requiring treatment that makes it impossible to care for the child.
• The mother is deprived of custody rights.
• Being convicted of an intentional crime infringing upon the life, health, dignity, or honor of the child. Having acts of serious violation of the obligation to look after, care for, nurture, and educate the child. Dispersing the child’s assets. Having a depraved lifestyle, inciting or forcing the child to do things contrary to the law and social ethics.

2.2 Proving the father has the ability to provide for a child under 36 months old:

• Ability to care for the child:
  • Material conditions: Prove that you have the financial ability to ensure the child has a full, safe, and stable life.
  • Spiritual conditions: Prove that you have enough time, love, and care to look after the child.
  • Living environment: Prove that your living environment is safe, healthy, and suitable for the child’s development.
• Relationship with the child:
  • Prove that you have a bonded, loving relationship with the child.
  • Prove that the child has affection for and a desire to live with you.
• Ability to raise and teach the child:
  • Prove that you have the knowledge and skills to raise the child.
  • Prove that you have the ability to educate the child in ethics, studies, and life skills.
• Other factors:
  • Health: Prove that you are in good health to care for the child.
  • Occupation: Prove that your work does not affect the care of the child.

Example: In a marriage and family case with a dispute over custody of a child under 36 months old. The mother voluntarily left since the child was very small, showing no concern for looking after, caring for, nurturing, and educating the child. The child has been nurtured and cared for by the father in good conditions and is accustomed to those conditions and living environment. In this case, the child will be assigned to the father if there is a dispute, even if the child is under 36 months old.

Thus, if the father meets the above conditions, the father can fully have the right to directly raise a child under 36 months old. However, in reality, it is very difficult for a father to want to care for a 30-month-old child, as collecting evidence and proving it to gain custody is very hard.If you are also encountering this case and want to win custody, contact Luat Kim Bang via hotline 034.540.6523 for timely advice and support.

3. In which cases is a mother not allowed to raise a child under 36 months old?

According to regulations, a child under 36 months old is assigned to the mother for direct custody, unless the mother is ineligible to directly look after, care for, nurture, and educate the child or the parents have another agreement consistent with the child’s interests. Based on the above grounds, the mother may not win custody in cases such as:

• The mother has lost her capacity for civil acts or has difficulties in cognition and mastering behavior or has restricted civil act capacity. A person is only considered to have lost civil act capacity or have difficulties in cognition and mastering behavior when the Court issues a decision declaring that person to be a person with difficulties in cognition and mastering behavior. Thus, the Court’s decision is the ground and basis to determine whether a person has lost civil act capacity or has difficulties in cognition and mastering behavior. When the mother has the above decision from the court, the Court will consider not assigning the child to the mother for direct care and nurturing.
• The mother is declared by the Court to have restricted rights toward the child. According to Clause 1, Article 85 of the Law on Marriage and Family. A mother will have her rights restricted toward a minor child if falling into one of the following cases:
  • The mother is convicted of one of the crimes of intentionally infringing upon the life, health, dignity, or honor of the child;
  • The mother has acts of serious violation of the obligation to look after, care for, nurture, and educate the child;
  • The mother has acts of dispersing the child’s assets;
  • The mother has a depraved lifestyle;
  • The mother incites or forces the child to do things contrary to the law and social ethics. Therefore, if falling into one of the cases mentioned above, the mother will have her rights restricted toward the minor child. This includes the right to directly nurture and care for the common child.

4. Child support level for a child under 36 months old

The support level is based on:

• Income of the support provider;
• Actual capacity of the person with the obligation to provide support;
• Essential needs of the person receiving support;
• In case the parties cannot agree, they shall request the Court to resolve. The Court only resolves when the parties have no agreement or cannot reach an agreement.

Regarding the method of support, Article 117 of the Law on Marriage and Family stipulates: support can be performed monthly, quarterly, semi-annually, or in a lump sum. The parties can also agree on the method of support. If an agreement cannot be reached, request the Court to resolve. The law does not have regulations limiting how much the support level is. If the support level cannot be agreed upon, the Court will declare the support level according to legal regulations and the actual conditions of the parties.

5. Divorce procedure to win custody of a child under 36 months old

• Step 1: Submit the dossier at the competent Court. Prepare full divorce dossier documents as prescribed by law. Prepare full evidence and proof to show the other party is ineligible to raise the child. After preparing the dossier, the husband can choose the following methods to submit the dossier at the competent People’s Court.
• Step 2: Receive notification from the Court. Within 03 working days from the date of receiving the lawsuit petition, the Chief Justice of the Court assigns a Judge to review the petition. Within 05 working days from the date of assignment, the Judge reviews the petition and issues one of the following decisions: Request amendment or supplementation; Proceed with acceptance procedures; Transfer the petition to the competent Court; or Return the petition if it does not fall under the Court’s jurisdiction.
• Step 3: Receive notification of acceptance. Within 03 working days from the date the Court accepts the case, the Court will issue a written notice of acceptance to the plaintiff, defendant, persons with obligations related to resolving the common child dispute under 3 years old, and the Procuracy of the same level.
• Step 4: The Court summons the litigants. According to the Civil Procedure Code 2015, the trial preparation period for child custody disputes is 04 months. For complex cases or due to force majeure, the Chief Justice can extend the period, but not by more than 02 months.
• Step 5: Trial of the dispute over custody of a child under 36 months old. Within 01 month from the date of the decision to bring the case to trial, the Court opens the trial. This 1-month period can be extended to 02 months if there are legitimate reasons.

In case you have a need for divorce to win custody of a child under 36 months old, but your work is busy, you have no time to attend court, do not know where to start, or do not know how to perform the procedures, contact Luat Kim Bang at hotline: 034.540.6523.