Divorce in Vietnam Involving Foreign Nationals and Child Custody Disputes: Who Holds the Advantage?
Real-life Context – Disputes over Child Custody in Divorces Involving Foreign Nationals
According to Article 127 of the 2014 Law on Marriage and Family, divorce cases between a Vietnamese and a foreign national—especially those involving disputes over children or property—are classified as "cases with foreign elements" and fall under the jurisdiction of the provincial-level court. In practice, judgments often clarify the decisive factors in determining child custody:
Children under 36 months old are typically entrusted to the mother, except in special cases involving the mother's physical or mental incapacity.
For children aged 36 months and above, courts consider a range of factors: caregiving conditions, education, financial support, time spent living with each parent, and the new living environment.
A review of 20 recent judgments shows that when one party resides abroad, their limited ability to care for and interact with the child is the main reason they often lose custody cases.
Key Factors That Determine Custody Rights in Divorces with Foreign Elements
1. Jurisdiction Requirements in Vietnam
Provincial courts where the spouse or child resides have authority over international divorce cases. If either the petitioner or the child lives in Vietnam, the Vietnamese court has primary jurisdiction.
2. Children Under 36 Months – Typically Given to the Mother
The current Law on Marriage and Family gives preference to the mother in cases involving children under three, except in cases where the mother poses serious risks (health, responsibility, character...).
3. Children Aged 36 Months and Above – Comprehensive Assessment
The court evaluates several aspects:
Caregiving and nurturing ability (stable housing, healthcare, education conditions),
Financial means to support the child,
Actual time spent with the child (who is the main caregiver),
Child's preferences (if of appropriate age),
Geographical distance if one parent lives abroad.
4. Foreign Residency: A Disadvantage Due to Distance
The parent living or working abroad is often considered less capable of direct parenting due to:
Inability to provide consistent care,
Challenges in managing daily parenting and education,
Administrative or legal issues (e.g., unlawful residence) that further tilt the court’s preference toward the parent residing in Vietnam.
“Who Has the Advantage?” – Lessons from Actual Court Rulings
Case No. 06/2018/HNGĐ-ST (Quang Binh)
In this case, although the father was a foreign national, the court awarded custody to the mother because the child wished to stay with her in Vietnam and had a stable life.
Case No. 32/2018/HNGĐ-ST (Kien Giang)
The Vietnamese mother retained custody due to her better caregiving capacity and alignment with the child’s best interests. The father, living abroad, lacked the ability to provide direct care.
Summary of 20 Other Cases: Caregiving Conditions Drive Outcomes
In approximately 20 child custody disputes, the parent residing in Vietnam was generally favored due to better living conditions, schooling access, and support networks (grandparents, relatives).
Legal Advice – How to Strengthen Your Custody Claim
1. Ensure Stable Living Conditions – Near Schools, with Support Network
Prepare evidence such as address confirmation, school enrollment records, and the child’s health documentation to show you offer a better environment.
2. Arrange Regular Visits with the Other Parent Abroad (If Possible)
Establish a consistent visitation schedule, keep travel documentation and photos to demonstrate ongoing care and involvement.
3. Gather Evidence of Financial Capability
Include bank statements, tuition receipts, health insurance documents, medical bills, employment contracts, or proof of property ownership.
4. Express the Child’s Wishes
For children aged 7–10 or older, request the court to formally record the child’s wishes (through testimony or psychological evaluation if necessary).
5. Hire an Experienced International Lawyer – Ensure Legal Representation and Cross-Border Cooperation
A lawyer familiar with both Vietnamese and international law can work with foreign courts to collect supporting evidence and prepare for international recognition of the custody order, if needed.
FAQs: Commonly Asked Questions
Who decides if one party is absent from the trial?
If one party is absent due to being overseas, the court can proceed if proper service and judicial entrustment procedures were followed. However, the absence means they cannot present their case or evidence—potentially resulting in an automatic disadvantage.
Are foreign court rulings recognized in Vietnam?
Yes. According to Articles 423–432 of the Civil Procedure Code 2015, foreign divorce judgments must undergo a recognition procedure to be enforceable in Vietnam. Otherwise, the decision may only be recorded in civil status registers.
How long does an uncontested divorce in Vietnam with a foreign spouse take?
Uncontested: 1–4 months
Contested (child/property disputes): At least 4–6 months, possibly 12–24 months if one party is absent or judicial entrustment is needed abroad.
Conclusion – Who Typically Wins Custody?
Living conditions, financial stability, and the ability to provide direct care are key factors courts prioritize for children over 36 months. In most disputes, the parent residing in Vietnam is more likely to succeed. Parents living abroad must provide solid evidence of caregiving efforts, demonstrate a bond with the child, or appoint a legal representative in Vietnam.
About DEDICA Law Firm – Your Trusted Legal Ally
DEDICA Law Firm is a team of internationally experienced lawyers specializing in divorce cases involving foreign elements, particularly child custody disputes. We provide:
Strategic advice and comprehensive file preparation: living conditions, caregiving records, child’s preferences,
Representation in court (both first-instance and appeal),
Assistance with service of process and international judicial entrustment,
Support for recognizing foreign court rulings or civil status registration in Vietnam.
Contact DEDICA Law Firm for expert legal consultation!
📞 Hotline: (+84) 39 969 0012 (Available on WhatsApp, WeChat, and Zalo)
🏢 Head Office: 144 Vo Van Tan Street, Vo Thi Sau Ward, District 3, Ho Chi Minh City
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