Divorce Between a Vietnamese Husband and a Japanese Wife: How is Child Custody Disputed?

Divorce Involving a Foreign Element – Applying Vietnamese Law

When one spouse is a Vietnamese citizen and the other is Japanese, or both are residing in Vietnam, the case qualifies as a divorce with a foreign element. According to Article 127 of the Law on Marriage and Family 2014, it is entirely appropriate for the case to be resolved by a Vietnamese court, where Vietnamese law is applied to determine child custody.

If the couple married in Japan but are currently living in Vietnam and seeking divorce here, the marriage certificate must be legalized and registered with the Department of Justice in Vietnam.

Therefore, custody disputes are also resolved under Vietnamese law.

Child Custody Regulations under Vietnamese Law

1. Child under 36 months → Priority to the mother

The 2014 Law on Marriage and Family stipulates that a child under 36 months (3 years old) is typically entrusted to the mother unless she is deemed unfit or the parents have agreed otherwise in a way that serves the child’s best interests.

2. Child from 36 months to under 7 years → Based on agreement or court assessment

For children aged 3 to under 7, if parents reach an agreement, the court will acknowledge it. If not, the court will consider both parents' material and emotional conditions (income, living environment, caregiving capacity) to decide who should have custody.

3. Child 7 years and older → The child’s opinion must be considered

For children 7 years and older, in addition to the above factors, the court is required to take the child’s opinion into account when deciding custody.

4. Financial support and visitation rights

The non-custodial parent retains the right to visit and the obligation to provide child support. If visitation affects the child negatively, the custodial parent may ask the court to restrict such visits.

Child Custody Disputes in a Japanese Wife – Vietnamese Husband Scenario

1. Mutual agreement

If both parties agree on custody (e.g., the Japanese mother cares for the child in Vietnam, the Vietnamese father provides support and visits regularly), Vietnamese courts typically uphold the agreement as long as it serves the child’s best interests.

2. No agreement → Court decision

The court will comprehensively evaluate:

• The child’s age.

• Material conditions: income, stable housing.

• Emotional support: parenting capacity, bonding, caregiving time.

• If the child is ≥7 years: their opinion is mandatory.

• Any violations by a parent (e.g., adultery, violence, neglect) will be a factor against granting custody.

3. Non-resident Japanese mother → Affects custody decision?

If the Japanese mother does not have stable residency in Vietnam (e.g., frequently travels to Japan), this may count against her due to an unstable living environment for the child. The Vietnamese father, if proven to provide a more stable and nurturing environment, may be favored for custody.

4. Procedure and required documents

• File the petition with the competent Vietnamese court (based on the residence of either spouse).

• If the marriage was registered in Japan, it must be legalized and recorded in Vietnam.

• For custody disputes, documents should include: proof of income, housing, child care involvement, school records, medical records, and if applicable, a written statement of the child’s preference (for children ≥7 years).

5. Can custody arrangements be changed after divorce?

Yes. According to Article 84, if circumstances change (e.g., a parent becomes unfit or both agree to new terms), the Vietnamese court may reassign custody based on the child’s current best interests and preferences.

FAQ – Frequently Asked Questions

Q1: Who gets custody of a 2-year-old child?
A: The mother is prioritized unless she is unfit or a different agreement benefits the child.

Q2: My child is 5 years old. As the father, can I gain custody?
A: The court considers both parents’ material and emotional conditions. If you can prove stability, caregiving ability, and if the child (7+) wishes to live with you, your chances are strong.

Q3: Does the wife’s adultery affect custody rights?
A: While adultery doesn’t automatically disqualify a parent, it can influence the court’s decision if it impacts the child’s well-being and upbringing.

Q4: My Japanese wife lives in Japan; I’m in Vietnam and our child studies here. Can I get custody?
A: If no agreement is reached, the Vietnamese court will consider the child’s best interests. If the mother lacks stable residency in Vietnam and the father can provide better conditions, he may be awarded custody.

Conclusion

Divorce between a Vietnamese husband and a Japanese wife in Vietnam is governed by Vietnamese law. Custody decisions depend on the child’s age, parents’ conditions, and the child’s opinion if they are 7 or older.

• Mothers are prioritized if the child is under 3.

• For children aged 3–7, mutual agreement is key; otherwise, the court decides.

• For children 7+, the child’s voice matters.

• A Japanese spouse without stable residency in Vietnam may be at a disadvantage in custody decisions.

• The non-custodial parent must still provide financial support and has visitation rights.

• Custody can be re-evaluated post-divorce if conditions change.

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