CAN A STEPFATHER BECOME A LEGAL GUARDIAN?

I have an 11-year-old son and now I am married to a man. So I want to ask if I need to register my future husband to be the legal guardian of my child. Because shortly, my husband will be the one to do the application and procedures for school transfer and admission for my child. Looking forward to your help.

FDVN’s Opinions:

1. Legal regulations on legal guardians

According to Clause 1, Article 46 of Civil Code 2015, “1. Guardianship means an individual or organization (hereinafter referred collectively to as guardian) is required by law or appointed to take care of and protect legitimate rights and interests of a minor or a legally incapacitated person or a person with limited cognition and behavior control (hereinafter referred to as a ward).”

Besides, according to Clause 1, Article 47 of Civil Code 2015, the wards include:

– Minors who have lost their mothers and fathers, or whose parents are unidentifiable;

– Minors whose parents are both incapacitated persons; parents have limited cognition or behavior control; parents have limited capacity of exercise; parents have their parental rights restricted by a court; and parents do not have the means to care for or educate such minor and the parents request the minor to be a ward;

– Incapacitated persons;

– Persons with limited cognition or behavior control.

Comparing the information you provided, your child does not fall into the above cases.

2. The individual is a guardian when the following conditions are met:

According to Article 49 of Civil Code 2015 on the requirements for natural persons to be guardians, each natural person who meets all of the following requirements may act as a guardian:

– Having full legal capacity;

– Having good ethics and necessary means to exercise rights and fulfill obligations of a guardian;

– Not being a person facing criminal prosecution or a person who has been convicted but his/her criminal record has been not expunged for a deliberate crime of violation of life, health, honor, dignity, or property of another person;

– Not being a person having parental rights to minor child restricted by a court.

Moreover, it is stipulated in Article 52 of Civil Code 2015 that a natural guardian of a minor prescribed in Points a and b Clause 1 Article 47 of this Code shall be determined as follows:

1. The eldest brother or sister shall be the guardian of the ward; if the eldest brother or sister fails to satisfy all requirements for acting as a guardian, the next eldest brother or sister shall be the guardian, unless otherwise agreed that another biological brother or sister shall be the guardian;

2. If there is no guardian prescribed in Clause 1 of this Article, the paternal grandfather, grandmother or the maternal grandfather, grandmother shall be the guardian; or those persons shall agree to appoint a person or some persons to be the guardian(s);

3. If there is no guardian prescribed in Clause 1 and Clause 2 of this Article, a biological uncle or aunt of the ward shall be the guardian.

If a minor or a legally incapacitated person has no guardian as mentioned above, the People’s Committee of commune where such person resides must appoint a guardian for the ward.

Thus, it can be seen that you don't need to register the guardianship procedure for your husband. If your husband wants to apply to transfer and enroll your child, you can do it with another role. In addition, her second husband can prove to be her legal husband to do the application and procedures for switching schools and enrolling the child and is not required to act as a guardian.

Nguyễn Thị Lan Anh – FDVN Law Firm

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