Child Custody Disputes Between Vietnamese Citizens and Foreigners in Vietnam
In the context of growing integration and international migration, disputes over child custody between Vietnamese citizens and foreign nationals are becoming more common. Resolving these disputes requires not only knowledge of domestic law but also of international mechanisms and practical application. This article analyzes the latest legal aspects of child custody disputes with foreign elements in Vietnam and offers key notes to increase the likelihood of securing custody in the best interests of the child.
1. Context and challenges in cross-border child custody disputes
1.1. When does a child custody dispute have foreign elements?
A child custody dispute involves foreign elements when at least one party (parent or a third party seeking adoption) is a foreign national, resides outside Vietnam, or there are international factors within the family relationship. Under the 2014 Law on Marriage and Family, a divorce with foreign elements—i.e., where one party is a foreigner or resides abroad—may give rise to a custody dispute.
When international elements arise, key challenges include determining the court’s jurisdiction, identifying the applicable law, and ensuring recognition and enforcement of judgments across countries when necessary.
1.2. Legal and practical difficulties
Determining jurisdiction: If both parties are abroad, Vietnamese courts only have jurisdiction when the case relates to assets or children located in Vietnam.
Cross-border enforcement: Even when a Vietnamese court awards custody to a Vietnamese citizen, enforcement can be difficult if the other party lives overseas, especially where that country does not recognize Vietnamese court judgments.
Proving caregiving capacity: A party must prove sufficient income, housing, caregiving conditions, time availability, and a strong emotional bond with the child. For foreign nationals, proving income, residence status, visas, work permits, etc., is often more complex.
Interference with visitation or abusing visitation rights: A non-custodial parent may misuse visitation to cause disruption, harming the child; the custodial parent may then seek to restrict visitation.
Child’s wishes: Where the child is 7 years old or older, the child’s opinion should be considered by the court.
Changed circumstances after judgment: If the custodial parent can no longer meet caregiving conditions (due to changes in income, living environment, etc.), the other party may request a change of custody.
In practice, many cross-border custody disputes are tried in Vietnam. For example, a case in Hai Phong involved a custody dispute where the plaintiff was a Canadian national.
Accordingly, to succeed in a child custody dispute in Vietnam involving foreign elements, the applicant must thoroughly understand domestic laws and relevant international treaties (if any), and carefully prepare evidence to protect the child’s best interests.
2. Legal grounds, jurisdiction, and requirements in custody disputes
2.1. Domestic legal bases and recent updates
Law on Marriage and Family 2014: Provides for custody, visitation, change of the custodial parent, the child’s best interests, and consideration of a child’s wishes from age 7.
Law on Adoption 2010 and guiding instruments: For cases with foreign elements, these set out registration procedures, dossiers, competent authorities, and agency responsibilities.
Decree 06/2025/ND-CP amending and supplementing provisions of decrees on adoption, effective from January 8, 2025.
International treaties (where applicable): For example, Vietnam is a party to the Hague Convention on Intercountry Adoption—cases between Vietnam and the United States follow this convention alongside domestic law.
Updating Decree 06/2025 is important, as it may affect intercountry adoption procedures, civil status annotations, and conditions for waiving certain child-referral procedures in specific situations.
2.2. Jurisdiction to resolve disputes
Under the Civil Procedure Code 2015, family and marriage disputes with foreign elements fall within the jurisdiction of competent People’s Courts.
If one party still resides in Vietnam, jurisdiction will typically lie with the provincial-level court where the other party resides in Vietnam.
If both parties are overseas, Vietnamese courts will only accept the case if it concerns assets or children located in Vietnam—i.e., where there is a territorial nexus to Vietnam.
2.3. Conditions to obtain custody
When requesting the Court to grant custody, the applicant should meet the following conditions:
Caregiving capacity: Stable income, proof of assets, and sustainable employment.
Suitable living environment: Stable and safe housing, proximity to schools, convenient transportation, family relationships, and support networks.
Time and emotional bond: Ability to devote time to caregiving, accompany the child in schooling, and support mental development.
Legal capacity, character, ethics: No unlawful conduct, no restrictions on civil rights, and no serious criminal record.
No harmful behavior toward the child: No abuse, neglect, or misuse of visitation rights causing harm.
Child’s opinion from age 7: If the child expresses a preference, the court will consider it.
Priority for very young children (under 36 months): The mother is generally favored if she meets the conditions, unless she is unfit or the parties agree otherwise.
If all conditions are convincingly proven, the applicant has a lawful basis to request the court to award custody.
3. Procedure and practical tips to protect your rights
3.1. Basic steps in a custody dispute with foreign elements
Seek an out-of-court agreement if possible.
If the parties can negotiate, prepare a written agreement on custody, visitation schedule, and exchange logistics. This document should be notarized or certified to ensure legal validity for submission to the court if needed.File a lawsuit with the competent court.
If no agreement is reached, the party seeking custody files a petition with the competent provincial People’s Court for family and marriage disputes, attaching a complete dossier: identity documents, the child’s birth certificate, and evidence of caregiving conditions (income, housing, expenses, school records, correspondence, photos, and witness statements).Mediation at court.
Before trial, the court will mediate so the parties may agree on custody, visitation, and child support. If mediation succeeds, the agreement is recorded; if not, the case proceeds to trial.Trial and decision.
The court evaluates all evidence, legal factors, caregiving environment, the child’s wishes (from age 7), and whether the applicant meets caregiving conditions, then decides on the custodial parent and child support, if any.Enforcement of the judgment.
The decision becomes legally effective upon expiry of the appeal period (if no appeal is filed). If the obligated party fails to comply, the competent justice authorities and civil judgment enforcement agencies may be requested to ensure transfer of the child to the custodian’s residence. Where the other party is abroad, enforcement may require international assistance (diplomatic notes, mutual legal assistance).Request to change custody (if new grounds arise).
After the decision takes effect, if the custodial parent no longer meets caregiving conditions (changes in finances, living environment, or violations of the child’s rights), the other party may sue to change custody. The court will consider new grounds and the child’s best interests.
3.2. Special notes to improve your chances of success
Submit detailed, quantifiable evidence: expense breakdowns, employment contracts, bank statements, utility bills, photos of the residence, lease agreements— the more concrete, the better.
Prove the emotional bond with the child: correspondence, journals, photos, recordings, and testimony from relatives, school staff, and friends.
Focus on the child’s best interests: schooling environment, health, psychology, language, daily routines, and the family support network on either side.
Prepare an enforcement plan if the other party is overseas: check whether the foreign country recognizes Vietnamese judgments or has mutual assistance treaties; prepare to seek international legal assistance if necessary.
Leverage the child’s young age when applicable: for children under 36 months, the mother is often preferred if qualified.
Monitor legal updates: e.g., Decree 06/2025 updates intercountry adoption procedures and may affect dossiers and waiver conditions for referrals in certain cases.
4. Conclusion
Child custody disputes between Vietnamese citizens and foreigners in Vietnam are legally complex, requiring a combination of domestic and international legal knowledge, evidentiary strategy, and enforcement planning. When preparing for litigation, always prioritize the child’s best interests, keep the child at the center of every decision, and carefully plan for cross-border enforcement where the dispute extends beyond Vietnam’s borders.
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