Child Custody in Divorce Cases in Vietnam When the Child Holds Foreign Nationality
1. What is a divorce involving foreign elements in Vietnam?
A divorce involving foreign elements refers to the termination of marriage between a Vietnamese citizen and a person holding foreign nationality, or between two foreign nationals residing in Vietnam. According to Article 127 of the Law on Marriage and Family 2014, if either spouse is a Vietnamese citizen or a foreigner residing and working long-term in Vietnam, the Vietnamese court has jurisdiction over the divorce.
This means that when a divorce in Vietnam has international elements, in addition to proving the legal marital relationship (registered in Vietnam), the nationality and legal residence must also be determined to identify the competent court.
2. Procedure and Jurisdiction
2.1 Consensual divorce (both parties agree)
If both parties agree to divorce and can settle matters regarding custody, alimony, and property division, the People’s Court at the provincial level where one party resides in Vietnam will handle the case. The procedure is usually quick, especially if the foreigner is still residing in Vietnam (around 15–20 days).
2.2 Unilateral divorce (disagreement)
If one party does not agree or is abroad or absent, the case is handled by the provincial court where the defendant resides or where the petitioner resides. The process of serving legal documents internationally can take 4–6 months or even over a year, especially when diplomatic channels are involved.
3. Custody of a Child with Foreign Nationality
3.1 Child under 36 months
According to Article 81 of the Law on Marriage and Family 2014, children under 36 months are typically entrusted to the mother unless the mother is deemed unfit. This is a well-established rule in Vietnam.
3.2 Children aged 36 months to under 7 years
At this stage, if the parents cannot reach an agreement, the court will consider the following factors:
Place of residence, educational environment, and stability
Income, caregiving ability, time available for the child
Emotional bond, caregiving history
The child’s best interests
3.3 Children aged 7 years and older
The court will also consider the child's wishes. If the child expresses a desire to live with one parent, that will be an important factor in the decision-making process.
3.4 Child with foreign nationality
If the child holds foreign nationality and changes their place of residence after the divorce (e.g., follows a parent abroad), the remaining parent can request the court to change custody if the new arrangement negatively affects the child's rights. The non-custodial parent still retains the right to visitation and alimony without obstruction.
4. Conditions for Gaining Custody in Cases Involving Foreign Elements
Under Articles 81 and 82 of the Law on Marriage and Family 2014, a parent who wishes to gain custody must prove:
Financial/material stability: stable housing, sufficient income to support the child
Mental/emotional readiness: time to care for, educate, and emotionally support the child in a healthy living environment
For children over 7 years old, the child’s opinion carries significant weight if it aligns with actual conditions.
5. Rights and Obligations of Parents After Divorce
The non-custodial parent is obligated to provide child support, respect visitation rights, and has the right to visit the child without interference.
The custodial parent may request the other parent to fulfill their obligations and is not allowed to obstruct visitation rights.
6. Changing Custody After Divorce
According to Article 84 of the Law on Marriage and Family 2014, if one parent becomes unfit (due to abuse, violence, poor finances, etc.):
The court may transfer custody to the other parent
The overriding principle remains the child’s best interests
For children aged 7 or older, their opinions play a decisive role
7. Summary
General process:
Determine the type of divorce (consensual or unilateral)
Prepare the following documents:
Divorce petition (consensual or unilateral)
Certified/annotated marriage certificate (if married abroad)
ID/Passport, child’s birth certificate, proof of residence
Documents proving the ability to care for the child
Submit to the competent court at the provincial level (or district level for border areas)
Attend the hearing (with interpreter if necessary)
Receive the court’s divorce and custody decision
8. Quick FAQs
Q1: Can a child under 36 months be granted to the father?
A: Children under 36 months are usually placed with the mother, unless she is unfit.
Q2: Do children over 7 years old have the right to choose their custodian?
A: Yes. The court will consider the actual wishes of the child if they are 7 or older.
Q3: Does a child’s foreign nationality affect custody rights?
A: Yes. If the child lives abroad with one parent, the remaining parent can ask the court to change custody to protect the child's interests.
Q4: What rights do non-custodial parents have?
A: They retain the right to alimony and visitation, and can ask the court to restrict the other parent if these rights are obstructed.
9. Conclusion
Divorces with international elements in Vietnam are more complex than domestic cases. However, with proper legal understanding, thorough preparation, and strategic planning—especially regarding custody of children with foreign nationality—protecting your child's rights can be effectively achieved.
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