Child custody disputes in divorce cases involving foreign elements.

Understand custody disputes with foreign elements in Vietnam, including residence, parenting evidence, overseas documents and practical cross-border arrangements.

Child custody disputes between divorced couples are already a tough legal and psychological battle, but when a foreign element is involved, the complexity of the dispute increases exponentially. How can a Vietnamese spouse win custody of their child when the other spouse is abroad? Which court will have jurisdiction? Jurion & Partners will provide the most detailed legal roadmap to protect your rights and the future of your child.

What constitutes a child custody dispute with a foreign element?

According to Article 127 of the 2014 Law on Marriage and Family, a divorce has a foreign element when:

1. Divorce between a Vietnamese citizen and a foreigner, or between two foreigners residing in Vietnam, shall be resolved by the competent authority of Vietnam in accordance with the provisions of this Law.

2. In cases where the Vietnamese citizen is not residing in Vietnam at the time of requesting a divorce, the divorce shall be resolved according to the law of the country where the couple has their common residence; if they do not have a common residence, it shall be resolved according to Vietnamese law.

3. The settlement of real estate located abroad during a divorce shall be governed by the law of the country where the real estate is located.

Based on the above regulations, a child custody dispute will be considered to have a foreign element when it falls under one of the following cases:

• One party is a foreigner or a Vietnamese citizen residing abroad.
• Both parties are foreigners but reside in Vietnam.
• The marriage was established abroad.

File with the competent court identified under the current Civil Procedure Code and court structure. A foreign element, a place of marriage registration or a former address does not alone identify the correct court. Verify international and territorial jurisdiction before submitting the request.

However, if the divorce and child custody dispute occurs between a Vietnamese citizen residing in a border area and a citizen of a neighboring country residing in a border area, the jurisdiction belongs to the Peoples Court of the region as stipulated in Clause 4, Article 35 of the 2015 Civil Procedure Code (amended and supplemented in 2025).

Child custody disputes in divorce cases involving foreign elements

3. Criteria for Court to Grant Child Custody
Whether its a domestic divorce or one involving foreign elements, the court always prioritizes the best interests of the child. The core criteria for the court to grant child custody include:
3.1. Material Conditions

• Income: Your income must be stable and sufficient to meet the needs of your child for food, clothing, housing, and education.

• Housing: A healthy, stable living environment with suitable living space.

3.2. Emotional Conditions

• Time: Your ability to directly care for and educate the child (you cannot completely leave them to a nanny or grandparents).

• Morality and Lifestyle: The lifestyle of the parent directly influences the personality development of your child. Therefore, it is essential to maintain a civilized and healthy lifestyle, ensuring a good emotional life for the child.

The age of child (Based on Article 81 of the 2014 Marriage and Family Law)

• Children under 36 months old: priority is given to the mother for direct care (except in cases where the mother is not qualified or there is a different agreement).
• Children aged 7 years and older: The court is obligated to consider the wishes of child.

Specific Challenges in Cases with Foreign Elements

Child custody disputes with foreign elements often face two major obstacles:

• Geographical distance and judicial assistance: verifying the living conditions of the father/mother abroad is difficult and time-consuming, and the judicial assistance procedures are costly.
• Cross-border enforcement and any return remedy require separate advice in the countries concerned. The HCCH status table for the 1980 Child Abduction Convention does not list Vietnam at the time of review. Do not assume either automatic return or that no remedy exists.

Child custody disputes in divorce cases involving foreign elements

How legal support can help

• Advice on the right to request the Court to settle divorce;
• Advising on conciliation procedures at the grassroots level;
• Advise on divorce proceedings;
• Advising on grounds for divorce;
• Advising on regulations on consent divorce and divorce at the request of one party;
• Advice on principles of the property division upon divorce and procedures for property division;
• Advice on divorce settlement procedures at the Court.

>>> Read more: Custody of Children Under 36 Months in Divorce Cases and Legal Provisions 

>>> Read more: Consensual Divorce In The Absence Of A Spouse

Keep the child’s interests central

Under Article 81 of the Law on Marriage and Family 2014, a child under 36 months is ordinarily placed with the mother, except where she lacks the conditions for direct care or the parents agree otherwise consistently with the child’s interests. For a child aged seven or older, the court must consider the child’s wishes alongside the child’s overall welfare.