How do I get custody when I get divorced?

We are going to divorce. We have one mutual child, he is 4 years old. Currently, both my husband and I have stable jobs at a large general hospital, and we have the same income. I would like to ask you “Which requirement I have to meet if I want to get custody? Do the provisions of law give priority to custody for women after divorce?

FDVN’s opinions:

Thank you for your letter to FDVN Law Firm. Based on your consulting requirements, after studying the legal documents, FDVN Law Firm offers the following advice:

Article 81 of the 2014 Law on Marriage and Family stipulate as follows:

“1. After a divorce, parents still have rights and obligations to look after, care for, raise and educate minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves in accordance with this Law, the Civil Code and other relevant laws.

2. Husband and wife shall reach an agreement on the person who directly raises their children and on his and her obligations and rights toward their children after divorce. If they fail to reach an agreement, the court shall appoint either of them to directly raise the children, taking into account the children’s benefits in all aspects. If a child is full 7 years or older, his/ her desire shall be considered.

3. 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.”

Currently, your child is 4 years old, so pursuant to Clause 2 Article 81 quoted as above, the Court will base on the interests of all aspects of the child to decide who is have the right to raise the child after the divorce. To get custody of your children, you must show that you have an edge in all aspects, you can meet the care needs and ensure the development of all aspects of your child, specifically:

+ Financial advantage: You must demonstrate that you fully meet your child's essential needs and other health needs including:

- Good job;

- Real income;

- Have a stable, legal accommodation.

+ Mental advantage: If you want to gain custody, you must ensure that you will have time to care, educate and spend your love on your children, so that your children can live in a healthy environment, full of financial and mental conditions,... In addition, if your family like dad, your mother can also support you to take care of your grandchild, it's also a huge advantage.

In addition to providing convincing evidence of the advantages, you also need to prove that if your child lives with your husband, he/she will not develop fully. Pieces of evidence must meet the conditions specified in Article 95 of the Civil Code 2015 regarding identifying evidence:

- Contents-readable materials shall be regarded as evidence if they are originals or copies lawfully notarized or authenticated or supplied and certified by competent agencies or organizations.

- Audible, visible materials shall be regarded as evidence if they are presented together with documents about the origins of such materials (applicable to materials recorded by the presenting persons themselves) or the documents certified by the one providing such materials for the presenting persons about the origins of those materials or documents related to such audio and/or video recording;

- Electronic data shall be presented in form of exchange of electronic data, electronic invoices, electronic mails, telegram, telegraphy, facsimile, and other similar forms according to legislation on electronic transactions.

Above is FDVN Law Firm's advisory opinion regarding the request of a consultant of the Guest on the basis of studying legal regulations. Hopefully, FDVN's advice will be helpful to you.

Legal expert: Ngo My Tram

FDVN Law Firm