Understand the custody rule for children under 36 months in Vietnam, its exceptions and the evidence needed to assess actual care and a child's interests.
Definition
When a husband and wife have a child but still proceed with a divorce, one of the most important and frequently raised issues is the determination of childcare rights after the marital relationship ends. For a child under thirty - six months of age - calling a child under three years old, identifying the person who directly provides childcare holds significant relevance because this stage requires careful and stable nurturing, care, and early education.
The term “person directly responsible for childcare” refers to the individual with whom the child resides and who provides daily nurturing, care, and education. This individual also bears primary responsibility for health care, nutrition, and early childhood education for the child.
Legal provisions on the person directly responsible for childcare for a child under thirty - six months of age
According to the Law on Marriage and Family 2014 in Vietnam, based on Clause 3 Article 81, establishes the following rule:
“Children under thirty-six months of age shall be assigned to the mother for direct childcare, except in cases where the mother lacks adequate conditions to provide supervision, care, nurturing, or education, or when both parents reach another agreement that serves the best interest of the child.”
This regulation reflects the legislative intention to prioritize the mother in the care of very young children, ensuring the most favorable conditions for health and comprehensive development during early childhood.
Furthermore, the law sets out rights and obligations for the parent who does not directly provide childcare, including financial support obligations and visitation rights under Article 82.
Circumstances in which the mother lacks adequate conditions for direct childcare
Although the law prioritizes assigning childcare for a child under thirty-six months of age to the mother, the legal system allows a change in the person directly responsible for childcare when appropriate. The determination that the mother lacks adequate conditions must comply with the legal criteria provided in Clause 3 Article 6 of Resolution 01/2024/NQ-HĐTP, specifically:
“a) The mother suffers from a serious disease or another severe medical condition that prevents independent self-care or prevents direct supervision, care, nurturing, or education of the child.
Example: When the mother suffers a stroke that results in paralysis and loss of mobility, a court will not assign direct childcare for a child under thirty-six months of age to the mother.
b) The mother has a monthly income lower than one-half of the regional minimum monthly wage at the place of residence and has no additional assets to support supervision, care, nurturing, or education of the child.
c) The mother lacks minimum available time required to directly supervise, care for, nurture, and educate the child.”
In addition, Case Law No. 54/2022/AL on determining childcare rights for a child under thirty-six months of age addresses circumstances where the mother does not directly provide supervision, care, or nurturing. In this case, the mother left voluntarily when the child was four months old. The father became the person directly responsible for daily childcare, and the child developed stable physical health under that routine. Based on these facts, the court assigned direct childcare for the child under thirty - six months of age to the father.
This confirms that childcare for a child under thirty-six months of age is not automatically assigned to the mother. The rule is preferential, not absolute, and the father or the relatives may assume direct childcare when supported by appropriate evidence.
Consequently, the right to provide direct childcare for a child under thirty - six months of age is not an immutable privilege for the mother. It may be reassigned when factual conditions demonstrate that another individual is more suitable to safeguard the best interests of the child.
Importance of the Regulation
Establishing clear rules on the person directly responsible for childcare for a child under thirty - six months of age during divorce proceedings holds significant importance in safeguarding child welfare and supporting comprehensive development. This regulation also provides a foundation for each party to understand respective roles and responsibilities.
First, Protection of Child Welfare and Comprehensive Development:
A child under thirty-six months of age undergoes critical stages of physical, psychological, and emotional development. Therefore, establishing a clear rule on childcare helps protect stability and provides appropriate conditions for early development.
Second, Creation of a Clear Legal Basis:
The regulation provides a transparent legal framework for authorities to determine the appropriate childcare arrangement, minimizing ambiguity during dispute resolution.
Third, Flexibility that Prioritizes the Best Interest of the Child:
The regulation demonstrates flexibility and humanistic values. It does not automatically assign childcare to the mother in every circumstance. Instead, it provides opportunities for the father, relatives, or other family members to assume direct childcare when they meet legal requirements and serve the best interests of the child.
Fourth, Reduction of Conflict and Assurance of Family Stability After Divorce:
By establishing clear standards, the regulation helps reduce disputes between parties and maintains stability for the child after the marital relationship ends.
In principle, when divorce occurs and the child is under thirty-six months of age, Vietnamese law prioritizes assigning direct childcare to the mother. However, this is not a mandatory rule. When the mother lacks adequate childcare conditions, when parents reach another agreement that serves the best interest of the child, or when documents and evidence demonstrate that the mother is unable to provide direct childcare, a court may assign childcare to the father or another suitable individual.
This regulation plays a crucial role in safeguarding child welfare and comprehensive development, while also creating a clear, flexible, and humanistic legal foundation for childcare arrangements after divorce.
How legal support can help
- Advice on the right to request the Court to settle a divorce;
- Advising on conciliation procedures at the grassroots level;
- Advice 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: Resolving Spousal Relationships in Unilateral Divorce
>>> Read more: Can a Pregnant Wife Get a Divorce in Vietnam?
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.
Discuss your next steps
For advice on the issues discussed in this guide, ask Jurion & Partners to review your circumstances and explain the appropriate legal options before you take the next step.
