VIỆC HỎI VỀ NGUYỆN VỌNG CỦA CÁC CON ĐƯỢC Ở CÙNG BỐ HOẶC MẸ SAU KHI BỐ MẸ LY HÔN CÓ PHẢI LÀ THỦ TỤC B

Legal situation: Dear Lawyer, I have 02 young children; one is 10 years old and the other is 12 years old, and I am in the process of getting a divorce. I have a question: Is it a mandatory procedure for the court to ask about the children’s wish to live with their father or mother after the divorce? I would appreciate it if you could help clarify this for me. Thank you very much! 

FDVN’s response: 

Thanks for your question to FDVN Law Firm (FDVN). After researching the relevant legal regulations, FDVN has some opinions below: 

According to clause 3, Article 208, Civil Procedure Code 2015: “Regarding marriage and family cases involving minors, before holding the meetings for checking the handover of, access to, and disclosure of evidence and mediating between involved parties, the judges and/or ombudspersons assigned by the courts shall collect materials and evidence to determine reasons for the arising of the disputes. When it is deemed necessary, the judges may refer to opinions of family affair authorities and children affair authorities about the situations of the families, reasons for the arising of disputes, and the expectations of the wives, husbands, and children related to the cases.

Regarding disputes over child rearing after divorces or change of post-divorce child custodian, the judges shall depend on the expectation of the children who are underage and not younger than 7; when it is deemed necessary, representatives of family affair authorities and children affair authorities shall witness and contribute opinions. The collection of expectations of underage children and the conduct of other procedures for minors must be friendly, suitable for the psychology, age, maturity level, and the awareness of the minors, ensuring legitimate rights and interests and personal secrets of minors.”

Besides, pursuant to Clause 2 Article 81 Law on Marriage and Family 2014: “Husband and wife shall reach 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.”

In addition, according to point d, section 11 of Resolution No. 02/2020/NQ-HDTP dated 23/12/2000, of the Council of Judges of the Supreme People’s Court, guiding the application of certain provisions of the Law on Marriage and Family 2000 (Resolution No. 02/2020): “If wife/husband can not reach an agreement on who will directly raise the child, the Court will decide which party will directly raise the child based on the child’s best interests, particularly considering conditions for physical development, ensuring education, and the conditions for mental development. If the child is 9 years old or older, the court must ask the child’s opinion about their wish to live with either parent before making any decision.” 

To conclude, according to the regulations and guidance above, asking the wishes of a child aged 9 years old or older (full 7 years old or older under the Law on Marriage and Family 2014) when parents divorce and cannot reach an agreement on who will have custody of the child is a mandatory procedural step for the court when resolving custody disputes. 

The above is FDVN's legal opinion regarding your inquiry, based on a review of applicable legal provisions. We hope that FDVN's advice will be of assistance to you.

By Lawyer Nguyen Loan - FDVN Law Firm