CAN A FOREIGNER OBTAIN CUSTODY OF A CHILD IN VIETNAM?

I. Legal basis for child custody in cases involving foreign elements

Child custody is one of the fundamental rights and obligations of parents toward their children. When disputes arise over child custody in divorce cases involving foreign elements, the legal issue becomes more complex due to the involvement of multiple legal systems, as well as the nationality and residence of the parties.

In Vietnam, the regulations on child custody are provided under the Law on Marriage and Family 2014, the Law on Children 2016, and related guiding documents. Specifically:

• Article 127 of the Law on Marriage and Family 2014 provides regulations on the resolution of divorces involving foreign elements, including matters related to child custody;
• Article 81 of the 2016 Law on Children stipulates that the rights and interests of children shall be fully protected, and the best interests of the child shall be prioritized in all decisions concerning the child;
• International conventions to which Vietnam is a party, such as the United Nations Convention on the Rights of the Child (CRC), are also referenced to safeguard the rights and interests of children.

II. Child custody rights of foreigners in Vietnam

1. Foreigners may request custody of their child in Vietnam

Under Vietnamese law, in cases of divorce or disputes over child custody involving foreign elements (for example, one party is Vietnamese and the other is a foreign national, or both parties are foreign nationals but have connections to Vietnam), a foreign national has the right to request a Vietnamese court to consider and decide on child custody if:

• The child holds Vietnamese nationality or is residing in Vietnam;
• The child has interests directly connected to their living or educational environment in Vietnam;
• The competent court as prescribed by Vietnamese law.

Thus, a foreign national’s claim to custody of a child in Vietnam is not prohibited by law, but must be based on the best interests of the child.

2. Criteria for assessing the custody rights of a foreigner

The Vietnamese court will consider the following factors when deciding on the allocation of child custody:

•  The best interests of the child: This is a fundamental principle, explicitly stipulated by law. The court assesses whether the person directly caring for the child possesses sufficient economic means, a suitable living environment, mental and emotional capacity, as well as the ability to care for and educate the child.
• Conditions for caring for and educating the child: A foreigner who has stable living conditions in Vietnam or at the child’s residence will have an advantage. In cases where the foreign parent resides abroad, exercising custody may be complicated due to geographic distance, which can affect the child’s overall development.
• Age of the child: Vietnamese law generally gives priority to the mother to directly care for children under 36 months of age, except when the mother does not meet the necessary conditions. If the child is older, the allocation of custody is based on the child’s preference (for children aged 7 or above) and other objective conditions.
• Suitable living environment: This includes factors such as educational conditions, safety, cultural environment, and the child’s ability to integrate socially.
• The ability and willingness of the person seeking custody to protect the child’s rights and best interests: A foreign national must demonstrate the capacity to care for and raise the child, as well as ensure the child’s long-term rights and welfare.

3. Limitations and challenges in a foreigner’s pursuit of child custody

• Jurisdiction of Vietnamese courts: In certain cases, if the foreigner does not have lawful residence in Vietnam or the child does not have permanent residence in Vietnam, the court may lack jurisdiction to adjudicate. The case may fall under the jurisdiction of the foreign court where the foreign party resides.
• Difficulties in the enforcement of court decisions: If the custodial parent resides abroad, the enforcement of custody, child support, and visitation decisions may face obstacles due to differences in legal systems and geographical distance.
• Cultural and legal factors: Foreigners raising children in Vietnam may face difficulties in adapting to local culture and customs, as well as complying with Vietnam’s legal regulations concerning children.

III. Procedures for a foreigner to obtain child custody in Vietnam

1. Filing a petition with the court for resolution: A foreigner may file a lawsuit at the provincial People’s Court where the child has permanent residence or where the custodial parent resides in Vietnam.
2. Provide relevant documents and evidence:Including the child’s birth certificate, the parties’ identification documents, evidence proving the ability to care for and raise the child, and any relevant agreements (if applicable).
3. The court conduct mediation: According to the regulations, the court will conduct mediation between the parties in order to resolve the dispute amicably.

4.Trial and court’s decision: The court shall comprehensively consider all relevant factors and issue a decision in accordance with the best interests of the child.

IV. Rights and obligations of the parent who does not have direct custody of the child

• The parent who does not directly raise the child, whether Vietnamese or a foreigner, still has the right to visit and care for the child, as well as the obligation to provide child support in accordance with the court’s decision.
• The parties must comply with legal regulations to protect the rights and interests of the child, and must not obstruct or create difficulties in the exercise of these rights and obligations.

V. Conclusion

Foreigners can fully obtain child custody in Vietnam in divorce or custody disputes involving foreign elements if they meet the legal requirements and demonstrate the ability to safeguard the best interests of the child. However, this process is often more complicated due to the foreign element, requiring strict compliance with litigation procedures and coordination between different legal systems.

The pursuit of child custody is not only a right but also a profound responsibility; therefore, foreign nationals must thoroughly prepare documentation and evidence, and demonstrate adequate conditions for the care and upbringing of the child in accordance with Vietnamese law and the best interests of the child.

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