Is Adultery a Ground for Losing Child Custody in a Divorce?
1. Adultery – Is It a Legal Basis for Losing Custody?
Under current Vietnamese law, adultery is not a direct ground for losing custody of a child. According to Article 81 of the 2014 Law on Marriage and Family, after divorce, both parents retain the right and obligation to care for and raise their minor children.
Adultery may be a ground for divorce, but it does not automatically mean loss of custody. The court will evaluate the overall conditions for child custody, rather than relying solely on the issue of adultery.
2. What Does the Court Consider When Determining Custody?
2.1 Mutual Agreement Between Parents
If both parties can agree on who will directly raise the child, the court will recognize this agreement as long as it serves the child’s best interests.
2.2 If No Agreement is Reached, the Court Will Consider:
The child’s overall well-being: Physical and emotional conditions, as well as a supportive living environment that ensures healthy development.
The wishes of the child aged 7 and older: This is a mandatory consideration by the court.
Children under 36 months old are generally given to the mother, unless the mother is unfit or there is a better agreement serving the child’s interest.
2.3 Serious Misconduct
Behaviors such as domestic violence, neglect, substance abuse, immoral lifestyle, or severe breaches of parental duties may cause the court to limit or revoke custody rights, in accordance with Article 85 of the 2014 Law on Marriage and Family.
However, adultery alone is not classified as serious misconduct, unless it leads to neglect or significantly harms the child.
3. Practical Examples for Better Understanding
Case A (Adultery but still a responsible parent): Despite an extramarital affair, if Parent A provides full care, maintains a stable environment, and the child is under 36 months old, the court may still grant custody to A if the conditions are suitable.
Case B (Adultery and child neglect): This scenario demonstrates actual harm to the child. The court may limit or revoke custody—not because of adultery, but due to neglectful parenting.
4. How to Prepare If You Want to Retain Custody (When the Other Parent Has Committed Adultery)
Submit a petition for custody with evidence of the other parent’s adultery (photos, recordings, videos, witness statements...) under Article 93 of the Civil Procedure Code 2015.
Demonstrate that you have better conditions to raise the child, such as: stable income, safe housing, educational ability, emotional bonding, caregiving time, etc.
The court will base its decision on these overall factors, not simply the fact of adultery.
5. FAQ – Frequently Asked Questions
Does adultery mean automatic loss of custody? No. Adultery alone is not a legal basis for losing custody, unless it's associated with neglect or serious parental misconduct.
Is a child under 36 months always given to the mother? Usually, yes. But the court may decide otherwise if the mother is unfit or there's a better agreement in the child’s interest.
What about children aged 7 and above? The child’s opinion must be considered, but it is not the sole deciding factor.
If both parents are qualified, is adultery a disadvantage? It could be a factor, but not a decisive one. The court considers all circumstances.
Conclusion
Adultery does not automatically result in loss of child custody under Vietnamese law.
Courts will decide custody based on what best serves the child’s interests, not based on who was at fault in the marriage.
Proper preparation of documents and proof of your caregiving capability is crucial to protect your legal rights.
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