Regain child custody after the judgement of the Court has obtained

A proposed change of direct caregiver should be supported by current facts about the child's needs and each parent's circumstances. A child's welfare, the existing arrangement and evidence of a valid basis for modification should guide the request.

There is a saying goes “Nothing lasts forever”, it is true when two - marriaged people come to a decision of divorce.

Before goes detail in regain child custody, we find out about the child custody first.

What is child custody?

Currently, Vietnamese Law on Marriage and Family does not give a specific definition of the term “child custody” or “custody of children”. However, it simply means the right and obligation to raise the child. The term is usually used in cases of spouses get divorce. Additionally, spouses need to negotiate each other or call assistance from a third party to determine either one of  them who is responsible for directly raising the child. Today, in the scope of this article, we only focus on the “counter – attack” grounds in which a spouse can regain child custody after the Judgement of the Court has obtained.

>>> Read more: The jurisdiction of the Court to settle divorce case involving foreign elements

In which grounds a person can regain child custody?

Above, its must be stated that a spouse can regain child custody, even the Court has held this for the other.

According to Article 84 of Law on Marriage and Family 2014, there are two grounds to a spouse regain child custody from the other, include:

• The parents agree on change of the person directly raising a child in the interests of this child;

• The person directly raising the child no longer has sufficient conditions to directly look after, care for, raise and educate the child.

Hence, you could dicuss again with the other to convince them give you the child custody. However, it seems hard to convince someone already hostile to you, especially in case of divorce disputes. The second ground occurs more commonly in practices, people usually base on the reason of the other “no longer has sufficient conditions to have child custody” to request the Court to move this right to them, in other words, to change the person directly raise the child. In addition, in case your child aged full 7 or older, the Court would take into consideration of the desire of the child. The desire of the child is just oriented, not completely decided, as we explained in the previous article.

What are conditions to regain child custody?

Once you want to regain child custody to directly raise your child, you should meet the conditions of esuring the best benefits of the child in all aspects.

Subject conditions:

The person who directly raise the child must have full civil act capacity, of good moral character and dignity, and not in the case of restricted parental rights over their children as prescribed in Article 85 of the Law on Marriage and Family 2014.

Material conditions (economic):

Spouse proves to have sufficient material conditions such as having assets shown through having a stable job, income, lawful housing to support the child and meet the minimum basic needs of the child.

All material conditions to ensure that the child has the best life commensurate with the conditions of the person who is capable of nurturing and caring.

Mental conditions:

Persons having child custody must not commit acts of domestic violence against their child, do not let their child come into contact with social evils, etc.

Creating an environment of living, learning and playing for the child to ensure the normal personality formation and development of the child.

>>> Read more: Procedures for divorce with foreigners in 2022

How to regain child custody?

In general, the procedures to regain child custody is similar to one to get child custody.

In case the spouses agree on child custody, request the Court to recognize the agreement on child custody, the following procedures is as follows:

• Spouses make a written agreement on custody of children after divorce.

• One spouse file form requesting the Court to recognize the child custody agreement.

• The Court examines the records and examines the nurturing conditions of parents. If it is deemed that the agreement is completely voluntary and in line with the interests of the child, the Court will issue a decision on the change of the person who directly raise the child after the divorce.

In case the spouses cannot come to an agreement, the procedure is as follows:

• File a petition to the competent Court where the defendant is residing or working

• The Court considers the petition. If the petition is valid, the Court will accept the case and issue a notice of acceptance for the plaintiff to fulfill the obligation to pay the Court fee advance.

• The plantiff submits the receipt of the Court fee advance to the Court that is handling the application.

• The Court shall verify documents and evidence and conduct conciliation.

• Open a first-instance Court session according to civil procedures. If disagreeing with the Judgment/Decision of the Court, one of the parties has the right to appeal within the statutory time limit.

One more essential thing spouses need to know is they can be deprived the child custody by the Court in special cases. It means neither of them can directly raise the child, which happens when the Court finds both parents fail to have sufficient conditions to directly raise a child. Hence, you need to be well prepared and consider carefully when conduct the procedure of regaining child custody or you will  “lost everything-lock, stock, and barrel-in the fire”.

How legal advice can assist

Legal assistance can include assessing the file, identifying missing records and preparing the requests and evidence for the relevant procedure. The scope and practical next steps should be agreed clearly, without promising a court result or completion date.

• Directly meet proffesionals in the related field

• Assitance of drafting and filing to the competent Court all the documents needed

• Advice tailored to the custody issues and evidence in your case

• Discuss the fee, payment schedule and agreed work in a written engagement before proceeding.

• Absolute confidentiality of the information of Clients