Conditions for Requesting a Court to Change the Custody of a Child After Divorce in Vietnam

When a couple divorces, the right to direct custody (in other words, the custodial parent) is determined by the court based on each party’s capacity and conditions, with the child's best interests as the priority. However, in reality, there are many cases where circumstances change after the divorce — the custodial parent may no longer meet the necessary conditions — leading to a request to the court for a change in custody. So how does current Vietnamese law regulate the conditions under which such a request may be granted?

1. Legal Basis & Who Has the Right to Request a Change of Custody

1.1 Legal Framework

According to Article 84 of the Law on Marriage and Family 2014, the change of the custodial parent after divorce may be considered in two scenarios:

• a) The parents reach a new agreement on custody, and it serves the child’s best interests;

• b) The custodial parent is no longer qualified to care for, raise, nurture, and educate the child.

Additionally, the law requires that the child’s wishes be taken into account if the child is 7 years of age or older.

Article 84, Clauses 1 and 5, also allow individuals or organizations such as relatives, state family management agencies, child protection agencies, or the Women's Union to request a change in custody if there are grounds as described in point b above.

When no agreement can be reached, the request becomes a civil dispute and falls under the jurisdiction of the court, as per the 2015 Civil Procedure Code.

In cases involving foreign elements (e.g., parents living abroad), the court where the child resides in Vietnam can still hear the dispute, pursuant to Article 469 of the Civil Procedure Code.

1.2 Who Can File the Request?

Those who may request a change in custody include:

• The non-custodial parent;

• Relatives (grandparents, uncles, aunts, siblings) with valid reasons to believe the custodial parent is no longer qualified;

• State family or child protection agencies and the Women’s Union, when acting to protect legal interests in accordance with Clause 2, Article 84.

2. Conditions for the Court to Accept a Change of Custody

To have the court approve a change in custody after divorce, the petitioner must meet and prove the following legal conditions:

2.1 A Valid Legal Basis — at least one scenario recognized by law

• Mutual agreement between parents: If both parties agree to change custody and such agreement aligns with the child’s best interests, the court may recognize the new arrangement.

• The current custodial parent is no longer qualified: This is the most commonly cited reason in practice. "No longer qualified" generally means lacking the ability to care for, raise, or educate the child.

Note: The law does not provide specific examples of "no longer qualified," but courts and legal scholars often assess based on income, housing stability, caregiving time, health, employment, ability to educate the child, and any significant changes in circumstances.

2.2 Considering the Child’s Opinion (if 7 years old or older)

For children aged 7 or older, the court must consider their wishes regarding which parent they wish to live with, or other appropriate living conditions. This regulation ensures the child’s rights are respected and avoids imposing a custody change that contradicts the child’s clear preference unless there is a compelling reason.

2.3 The Child’s Best Interests

The court's decision must prioritize the best interests of the child, which include:

• A stable educational and living environment (no frequent relocations or school changes);

• The material and emotional caregiving capacity of the custodial parent;

• Emotional bonds and the ability to maintain relationships with both parents and extended family;

• The overall safety, health, living conditions, and family stability offered by the proposed custodial parent.

Courts will assess all evidence and circumstances to ensure that custody changes genuinely benefit the child.

2.4 When Both Parents Are Unqualified

If neither parent is deemed fit to have custody, the court may appoint a legal guardian under the Civil Code.

3. Real-Life Cases

Custody changes are not merely theoretical — courts have accepted such requests when clear evidence is provided. Here are a few real examples:

• Judgment No. 19/2024/HNGĐ-ST (Tan Phu, Dong Nai, 2024): The court granted custody to the mother based on evidence that she was better suited to care for the child.

• Judgment No. 2618/2021/HNGĐ-ST (Thu Duc, HCMC): The court denied the father’s request due to a lack of proof that the mother was unfit.

• Judgment No. 07/2022/HNGĐ-ST (Can Tho, 2022): The court considered and ruled on the dispute after thoroughly reviewing the evidence.

• Decision No. 247/2023/QĐST-HNGĐ (Hanoi, 2023): Involving one parent living abroad, the court still accepted jurisdiction and ruled on the custody change based on clear evidence.

These case precedents show that courts evaluate the custodial parent’s actual caregiving condition with careful scrutiny before approving a custody change.

4. Practical Challenges & Legal Gaps

• There are no detailed legal criteria for determining when a parent is "no longer qualified," leading to inconsistencies in court rulings.

• Petitioners often face difficulties gathering evidence (e.g., financial records, residency verification, daily caregiving details).

• If one parent obstructs the other’s right to visit or care for the child, they may face administrative fines of VND 5 to 10 million under Decree 144/2021/ND-CP.

• For children under 7 years old, their opinion carries less weight, but courts still prioritize their overall well-being.

• For applicants residing abroad, it can be more challenging to demonstrate real-life caregiving capabilities in a foreign country.

5. Conclusion

Requesting a court to change the custodial parent after divorce is entirely feasible if the petitioner can demonstrate one of the two legal bases (a new agreement or the current custodian’s unfitness), ensure the child’s well-being, and consider the child’s opinions if they are 7 years or older.

When pursuing this process:

• Prepare solid documentary evidence: personal documents, the child's birth certificate, proof of income, housing, caregiving capacity, and evidence of the other party’s failure to care properly.

• Where possible, negotiate with the other parent to reduce conflict and legal duration.

• In your petition or lawsuit, clearly state your reasons and legal grounds, emphasizing the child’s best interests.

• If the child is old enough, attach a written statement or confirmation of their wishes.

• Always prioritize the “child’s best interests” — this is both the legal standard and practical guide that courts use to make decisions.

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