Upon seeing the headline “Ms. X (a Philippine national) divorces her American husband in Vietnam, disputes child custody of their child born in Vietnam,” many people ask: “In Vietnam, who will get custody if both parents are foreigners?” While it sounds complicated, in practice, Vietnamese courts have clear, humane guidelines based on the best interests of the child.

Divorce Between Foreigners and Child Custody in Vietnam – What’s the Legal Basis?

1. Which law governs divorces involving foreigners in Vietnam?

According to Article 127 of the 2014 Law on Marriage and Family, divorce cases "between a Vietnamese citizen and a foreigner or between two foreigners residing long-term in Vietnam" fall under the jurisdiction of provincial-level People's Courts in Vietnam.

The 2015 Civil Procedure Code confirms that the competent authority is at the provincial level, or in special cases (such as border regions), district-level courts may be involved.

2. Does a child born in Vietnam affect custody rights?

Even if both parents are foreigners, if the child is born in Vietnam and the divorce takes place in Vietnam, Vietnamese courts will apply Vietnamese law to resolve the custody issue.

Custody is typically based on the child's age:

Under 36 months (3 years): custody usually goes to the mother.
From 7 years old: the child's wishes will be taken into account by the court.

Child Custody Disputes – Who Has the Upper Hand?

1. Can parents reach a custody agreement before filing for divorce?

Yes. Courts prioritize parental agreements regarding custody, child support, and visitation rights.

If such agreements are in the best interest of the child, the court will approve them in an uncontested divorce. Without agreement, the divorce becomes a contested case.

2. If no agreement is reached – how does the court decide?

The court will consider:

Child’s age:
- Under 36 months: typically awarded to the mother (if she is capable).
- 7 years or older: the child's opinion is taken into account.
Parenting capacity:
- Which parent has better time availability, financial stability, living conditions, and emotional support?
- Who best serves the child's interests?
Child’s preference:
- Assessed through psychological interviews if the child is aged 7 or older.

If One Parent Lives Abroad – Divorce in Absence

1. Is it easier to file for divorce if one party is absent?

Yes. A foreign party who is not in Vietnam can request to proceed without their presence. Vietnamese courts can accept this, especially if there are no disputes over custody or assets.

It is necessary to legalize and translate essential documents such as passports and marriage certificates. The absent party must also submit a request form for “in-absentia” judgment to ensure their rights are preserved.

2. Custody disputes when one parent lives abroad

Post-divorce legal principles:

Custodial parent: entitled to child support, must respect visitation rights.
Non-custodial parent: has the right and obligation to support the child and visit them; cannot interfere. If interference causes harm, visitation rights may be restricted.

If the custodial parent cannot maintain adequate conditions, the court can revise or revoke custody arrangements based on new circumstances.

A Case Study from Hai Duong Province

In a 2022 case (No. 118/2022/HNGĐ‑ST) in Hai Duong:

The plaintiff was a Vietnamese woman; her foreign husband failed to provide a residential address abroad. Yet, the court proceeded to handle both the divorce and child custody.

The court relied on:

Article 469 of the Civil Procedure Code,
Articles 81–83 of the Law on Marriage and Family,
Emphasis was placed on the child’s interests, age, caregiving capacity, and visitation rights for the non-custodial parent.

Ruling:

The child was awarded to the mother based on proof of her caregiving capability. The child was under 7, and no signs of harm were present.

Key takeaways:

Even without an overseas address for one party, Vietnamese courts retain jurisdiction.
Reaching a prior agreement accelerates the process as an uncontested divorce.
Mothers may be favored for custody of young children if they meet necessary conditions (emotional, financial, and environmental support).

FAQ – Frequently Asked Questions

1. Who gets custody if both parents are foreigners?

Under 36 months: usually the mother.
Aged 7 and up: the child's opinion is respected.
The parent with better financial, emotional, and living conditions may be awarded custody.

2. Does the foreign parent have to be present in Vietnam?

No. They can be absent if they submit valid documents (request for in-absentia judgment, legalized and translated paperwork).

3. Can a non-custodial parent take the child abroad?

Only with the consent of the custodial parent. Without consent, they must request court approval, which considers the child’s welfare.

4. What if there are consular document issues?

Contact the Department of Consular Affairs – Ministry of Foreign Affairs for legalization. Legal offices can assist with paperwork, especially for in-absentia cases.

Conclusion and Dedica Law’s Advice

Always aim for a custody agreement, ideally before filing for divorce.
Prepare consular documents thoroughly: passport, marriage certificate, birth certificate, certified translations.
Prove your parenting capability: financially, emotionally, educationally, and especially if your child is over 7, respect their opinion.
Moving the child abroad requires valid documents from both parents or court authorization to ensure legal safety and the child’s future.

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Divorce Between Two Foreigners with a Child Born in Vietnam: Who Gets Custody?