Ly hôn và quyền nuôi con: Những vấn đề cần biết (Luật sư Lê Bình Phương phân tích)Divorce and Child Custody: What You Need to Know (Analysis by Lawyer Lê Bình Phương)

Reference translation for convenience. The Vietnamese version is the authoritative text.

Overview

When divorcing with children in common, the questions of “who raises the children” and “how much support” are often the source of the most heated and prolonged disputes. Many people mistakenly believe that custody is tied to the right to bar visitation, or that whoever “wins” in court has full authority to decide on the children’s upbringing. The legal reality is not like that.

This article analyzes the core issues in custody disputes: the criteria for assigning the children, the support obligation, visitation rights, and the conditions for requesting a change of the custodial parent — so that both sides correctly understand their rights and obligations.

Relevant Legal Provisions

On whom the children are assigned to:

Article 81 of the Law on Marriage and Family 2014 (52/2014/QH13) provides: the husband and wife agree on the person who will directly raise the children. If they cannot agree, the Court decides to assign the children to one party to directly raise based on the children’s interests in all respects. For a child aged 7 or older, the child’s wishes must be considered. A child under 36 months old is assigned to the mother to directly raise, unless the mother is not qualified to directly look after, care for, raise, and educate the child.

On the rights and obligations of the parent who does not directly raise the children:

Article 82 provides: the parent who does not directly raise the children has the obligation to respect the children’s right to live with the person directly raising them; has the obligation to provide support for the children; and has the right to visit the children without anyone obstructing it, except where the visitation adversely affects the children and the Court restricts this right.

Article 83 clearly provides: the parent directly raising the children, together with family members, must not obstruct the parent who does not directly raise the children in visiting, caring for, raising, and educating the children.

On changing the parent who directly raises the children:

Article 84 provides: a change of the parent who directly raises the children is carried out in the following cases: (a) the father and mother have an agreement on changing the parent who directly raises the children that is consistent with the children’s interests; (b) the parent directly raising the children is no longer qualified to directly look after, care for, raise, and educate the children.

On the support obligation:

Article 110 provides that the father and mother have the obligation to provide support for minor children, and for adult children who are incapable of working and have no property to support themselves.

Article 116, clause 1 provides that the support amount is agreed upon by the person with the obligation and the person receiving support or their guardian; if they cannot agree, they request the Court to resolve it.

Article 117 provides that support may be provided periodically — monthly, quarterly, or annually — or in a lump sum, as agreed by the parties; if they cannot agree, it is provided monthly.

On a seriously deteriorated marriage and unilateral divorce:

Article 56, clause 1 provides that the Court grants a divorce when the marriage has fallen into a serious state, common life can no longer be maintained, and the purpose of the marriage is not achieved. Resolution 01/2024/NQ-HĐTP, Article 4, clause 3b clarifies that “adultery” is one of the manifestations confirming a seriously deteriorated marriage.

Common Types of Disputes

Disputes over who gets to raise the children, when both parties want custody or neither wants it. In practice, the Court usually makes an overall assessment of economic conditions, the actual time spent caring for the children, the living environment, and the children’s psychological stability — not simply who has the higher income.

Disputes over support include: failing to agree on the amount; the obligated person failing to perform after a judgment; and requests to change the support amount when circumstances change.

Disputes over visitation arise when the father or mother raising the children seeks to prevent the other from contacting them — moving to a new place without notice, refusing to hand over the children at visitation times, or speaking ill of the other parent to the children to influence them psychologically.

Requests to change the custodial parent after a judgment has taken effect are usually based on Article 84, clause 2 — the person currently raising the children is no longer qualified. This type of dispute is prolonged and requires clear evidence.

Analysis and Approach

On assigning the children: When a child is under 36 months old, assignment to the mother is the rule, but there is an exception when the mother is not qualified. “Not qualified,” in adjudication practice, is not only financial hardship but may include mental health conditions, substance addiction, or a living environment that is unsafe for the child. When a child is 7 or older, the child’s wishes carry weight but are not absolutely decisive. The Court still considers the child’s interests comprehensively.

On the support amount: The law does not prescribe a fixed amount. In practice, the Court usually bases it on the income of the obligated person and the actual needs of the child. The common range fluctuates from 15–30% of the obligated person’s monthly income, but this is not a statutory rule — only a negotiation practice. Lump-sum support is also permitted by law under Article 117.

On visitation: Article 83 strictly prohibits obstruction. If the person raising the children continuously obstructs visitation without a Court decision restricting this right, this is a basis to request a change of the custodial parent under Article 84, clause 2. Systematic obstructive conduct may be regarded as a manifestation of being “not qualified” in terms of providing a healthy developmental environment for the children.

Lê Bình Phương, MBA., Esq., notes: many parents mistakenly believe that having a custody judgment means having full authority. The reality is that custody does not include the right to eliminate the role of the other parent. The law protects the child’s right to know and to maintain a relationship with both father and mother, except in special cases.

Real-World Situation

Ms. M. and Mr. T. divorced when their child in common was just 2 years old. Mr. T. had a higher income and wanted custody, but because the child was not yet 36 months old, the Court assigned custody to Ms. M. under Article 81, clause 3, and ordered Mr. T. to pay monthly support.

A year later, Ms. M. frequently failed to hand over the child to Mr. T. for weekend visits, citing the child being ill or busy. Mr. T. kept a journal recording each refusal, along with the refusal messages, and filed a request for the Court to reconsider custody under Article 84.

The notable point: the evidence must be sufficiently systematic and sustained, not just a few intermittent instances. The Court considers overall whether the obstructive conduct truly affects the child’s interests, and whether the person currently raising the child still provides a healthy developmental environment.

Frequently Asked Questions

After divorce, must a child under 3 be assigned to the mother?
In principle yes, but there is an exception if the mother is not qualified.

According to lawyer Lê Bình Phương, Article 81, clause 3 creates a default rule assigning a child under 36 months to the mother, but this is not an absolute rule. If the father can prove the mother lacks the actual capacity to care for the child, the Court may still assign custody to the father. The important thing is that the evidence must be specific, not just subjective opinion.

Does the parent who does not have custody have the right to visit?
Yes, this is a right protected by law under Article 82, clause 3 and Article 83.

According to lawyer Lê Bình Phương, the right to visitation can only be restricted by a Court decision; it cannot be unilaterally refused by the person raising the child. If continuously obstructed, the obstructed person may request enforcement of the judgment or use it as a basis to request a change of the custodial parent under Article 84.

Who decides the child support amount after divorce?
It is agreed by the parties; if they cannot agree, the Court decides under Article 116.

According to lawyer Lê Bình Phương, the support amount may change if the circumstances of one of the parties change significantly — for example, the obligated person loses their job or the child’s needs increase upon reaching school age. Article 117 also allows lump-sum support instead of monthly support if the parties agree; this option is sometimes more suitable to avoid later disputes.

Important Notes

A custody judgment takes effect but is not immutable. Article 84 allows a change if actual circumstances change, but a request to change must have specific supporting evidence. The Court does not change the custodial parent simply because one party “wants custody more” or because the child spontaneously asks to live with the other side.

A support amount decided by the Court is legally binding. The obligated person who fails to perform may be subject to enforcement of the judgment, including salary deduction. The person raising the child may not use non-payment of support as a reason to refuse visitation — these are two independent obligations, not dependent on each other.

When a child is 7 or older and expresses a wish to live with the other side, this is a supporting basis for a request to change custody, but it must be combined with a comprehensive assessment of the conditions of the person requesting the change.

Conclusion

Custody and the support obligation are the two central matters when divorcing with children in common. The Law on Marriage and Family 2014, through Articles 81 to 84 and Articles 110, 116, and 117, creates a clear legal framework, but the actual outcome depends heavily on the evidence and how it is presented before the Court. The core point to remember: custody is the right of the father or mother to directly care for the child, but the child’s interests are the focus the Court places first when deciding.

See also: Who is Lawyer Lê Bình Phương?

Related Articles

• How to collect evidence of adultery that is lawful and accepted by the Court
• Child support after divorce: how it is calculated and how to change it
• Changing custody after a judgment: conditions and procedure
• Division of common property upon divorce: provisions and practice
• A parent obstructing visitation after divorce: how to handle it?