Can a father directly raise children under 36 months of age after divorce?

I and my wife are carrying out the procedures of divorce under the provisions of law and we have agreed on the matters related to the property. We have a 23-month-old daughter who is living with my wife. I am the main labor in my family and my parents living in Sai Gon reach the entering age. So, it will be convenient for me to take care of my daughter. As far as I know, after divorce, my wife will rent a house to live with her younger sister. My wife does not have any stable job and she is economically difficult in her life. Thus, my expectation is that I can raise my daughter to take care of her well. I would like to know if I can directly raise my child in this case.

FDVN’s opinions:

Thank you for concerning and trusting in FDVN’s legal services. We have studied the law provisions to provide you with our advice. Please kindly see the answer below:

Custody of children is one of the matters which is concerned most when divorce. Depending on the economic condition, caring ability and the agreement between the parties, the Court decides on the custody of children for the most beneficial to the child. It is stipulated in the to Clause 3, Article 81 of the Law on Marriage and Family 2014 that “A child under 36 months of age shall be directly raised by the mother, unless the mother cannot afford to directly look after, care for, raise and educate the child or otherwise agreed by the parents in the interests of the child.”

According to the law provisions, the child under 36 months old shall be directly raised by his/her mother after their parents’ divorce. However, this is not applied to all the cases. If the husband can prove his ability to ensure better physical and mental conditions for the child, he can directly raise the child after divorce. In your case, to have the right to raise your daughter, you should apply the following options:

- Solution 1: Negotiate

Negotiation is considered an optimal method, avoiding conflicts while ensuring better conditions for the children and making the divorce procedure simple and fast.

- Solution 2: Prove the husband’s ability to raise the child and prove that the mother does not meet the conditions for ensuring a better life for the child.

If you fail in applying the Solution 1 but you insist on raising your daughter to bring the best material and spiritual conditions for her, you should:

- Prove that you have more advantages of material and spiritual conditions than your wife:

+ Having a stable job and a good salary to ensure the good conditions for daughter;

+ Having stable and legal accommodation;

+ Being able to spend your time with your daughter and make her live in a good living environment in terms of education and entertainment;

+ Proving that her grandparents can look after her carefully.

+ Proving that you have good ethics, a healthy lifestyle to ensure a good education for your daughter.

Thus, you must obtain a labor contract, a certificate of land use rights, ownership of houses and other assets...

- Proving that your wife can not afford to ensure a good life for your daughter.

That is the advice of FDVN to your request, based on the study of legal regulations. Hopefully FDVN's advice will be useful to you.

Legal expert: Ngo Thi My Tram

FDVN Law Firm

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