In divorce, reaching an agreement on child custody is not always easy and smooth. So, how does the law regulate the child custody rights in divorce, and what responsibilities do parents have towards their children after divorce? Let’s delve deeper into this analysis with LawPlus in this article!
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1. Child Custody Rights After Divorce
According to Article 14, Clause 3 of the current Marriage and Family Law, divorce is the termination.of the marital relationship through a legally effective judgment or decision of the court.
In the event of divorce, although the marital relationship ceases,.the relationship regarding shared children still persists. Therefore, if the spouses cannot mutually agree on child custody, this.can lead to potential disputes and tensions among the parties.
Based on Articles 2 and 3 of Section 81 of the 2014 Marriage and Family Law, the regulations.regarding child custody after divorce are as follow:
- Husband and wife have the right to mutually agree on who will directly raise.the child, the obligations, and the rights of each party after divorce. In cases where no agreement is reached, the court will.decide to assign the child to one parent for direct care, based on the overall welfare of the child;
- If the child is 7 years or older, their wishes must be considered. During the divorce proceedings in court, when deemed necessary, the judge may consult the opinions of.state management agencies for families and children regarding the child’s wishes.to determine which parent will be entrusted with their care (Article 3, Section 208 of the 2015 Civil Procedure Code);
- Children under 36 months old are entrusted to the mother for direct care unless.the mother is not qualified to directly supervise, care for, nurture, and educate the child, or there.is another suitable agreement between the parents in the child’s best interest;
Thus, in the event of divorce, if both spouses cannot agree on who will directly.raise the child, the court will decide to assign the child to one parent based on the overall welfare of the child.
2. Conditions for Obtaining Child Custody Rights in Divorce
The conditions for obtaining child custody rights in divorce are considered by the.court based on ensuring the comprehensive welfare of the child. The current Marriage and Family Law does not specify any particular article or.clause regarding the conditions for obtaining child custody rights in divorce.
However, when examining the provisions on the duties and rights of parents in.Article 1, Clause 2 of Section 69 of the Marriage and Family Law, these serve both as obligations and as a basis for establishing.conditions in the contest for child custody rights in divorce:
‘Article 69. Duties and Rights of Parents
- Love and respect the child’s opinions; take care of their education to ensure.their healthy physical, intellectual, and moral development, making them a dutiful family member and a useful citizen to society.
- Supervise, nurture, care for, and protect the legal rights and interests of the underage child.or the incapacitated adult child, or the child who is unable to work and has no means to support themselves.
…'”
To fulfill the above duties, one parent, when divorcing,.needs to satisfy two main conditions:
- Material conditions: Stable residence (legitimate housing), living environment, employment, and actual monthly income. When proving this in court, the parties can provide documents such.as land ownership rights, house ownership, employment contracts, salary statements,…
- Psychological conditions: Sufficient time for caring, teaching, and educating the child, emotional commitment.to the child, providing conditions for the child’s recreation and entertainment, maintaining a lifestyle.and moral values suitable for nurturing and educating the child.
Additionally, one party can also demonstrate that the other party is not qualified.to obtain child custody rights, presenting evidence of regularly engaging in violent behavior, excessive alcohol consumption,.unhealthy social activities, lack of time for the child, or proving insufficient.income, assets, and an inadequate living environment for the child’s development.
3. Rights and Responsibilities of Parents After Divorce
After divorce, parents still retain the right and responsibility to supervise, care for, nurture, and educate their underage children or adult children who have lost the capacity for civil.behavior or lack the ability to work and have no means to support themselves (Clause 1, Article 81 of the current Marriage and Family Law).”
According to Articles 82 and 83 of the Marriage and Family Law, the obligations and rights of.parents who do not directly raise their children and those who do after divorce are as follows:
- Parents who do not directly raise their children have the obligation to respect the right.of their children to live with the person who directly raises them.
- Parents who do not directly raise their children have the obligation to provide financial support for their children.
- After divorce, the parent who does not directly raise the child has the right and obligation.to visit, care for, nurture, and educate the child without interference from anyone.
- The parent who directly raises the child has the right to request that the parent who does not.directly raise the child fulfill the obligations mentioned above and can request everyone to respect their right to raise the child.
If a parent who does not directly raise the child abuses visitation rights to.obstruct or negatively impact the care, supervision, nurturing, and education of the child, the parent who directly raises.the child has the right to request the court to restrict the visitation rights of that parent.
On the contrary, the person directly raising the child, along with their family.members, is not allowed to obstruct the visitation and care of the parent who does not directly raise the child. In cases where either party causes difficulties, impediments, or negatively affects the care, supervision, nurturing, and.education of the child, there may be sanctions, either administratively or criminally, depending on the specific behavior.
For any inquiries or assistance, and representation in legal services.related to child custody disputes, you can contact Law Plus.through the website, hotline 0965 052 039 / 0966 008 030 (WhatsApp, Viber, Zalo), or email info@lawplus.vn
