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I am a foreign national and my ex-wife is Vietnamese. We divorced two years ago and she is currently raising our eight-year-old son. She has since remarried, and my financial condition is now better than hers. Am I entitled to request custody of my child?
Yes, you have the right to request a change in the person directly raising your child.
Under Article 81 of the 2014 Law on Marriage and Family (the Law), child custody is determined at the time of divorce. However, after the divorce, either parent may request a change in custody by filing a petition with the competent regional People’s Court.
Notably, the Law does not prescribe any time limit for requesting a change in the person directly raising the child. Therefore, even two years after the divorce, you remain entitled to submit such a request.
That said, financial capacity is only one of several factors considered by the court. The court will assess the child’s overall best interests, including emotional stability, moral and educational conditions, living environment, and the child’s attachment to each parent.
Please note that, a parent’s remarriage, in itself, does not constitute a ground for changing custody. A change will only be granted if it can be demonstrated that the remarriage has resulted in neglect, inadequate care, or serious adverse effects on the child’s lawful rights and interests.
Pursuant to Article 84.2 of the Law, as the child’s father, you are entitled to request a change in custody. The court will consider the request if one of the following grounds exists:
(i) You and your ex-wife reach a written agreement on changing the person directly raising the child. The court will recognise such an agreement only if it serves the child’s best interests.
(ii) Your ex-wife no longer has sufficient conditions to directly care for, nurture and educate the child.
In addition, the child’s opinion is an important reference factor. Under Article 6.2 of Resolution 01/2024/NQ-HDTP guiding the settlement of marriage and family cases, the court must consider the views of a child aged seven or older. In your case, as your son is eight years old, the court will obtain his opinion. However, custody cannot be decided solely based on the child’s wishes if doing so would not be in his overall best interests.
If my ex-wife and I reach an agreement to change child custody, what steps should we take? If we cannot reach an agreement, how can I request a change of custody through the court?
The procedures for changing the person directly raising a child are handled by the regional People’s Court through: (i) recognition of the parents’ agreement to change custody as a civil matter; or (ii) settlement of a lawsuit on custody change as a civil case.
In your case, if you and your ex-wife are able to reach an agreement on changing the person directly raising the child, the procedures will be relatively straightforward. Either you or she may submit a petition requesting the competent court to recognise the agreement as a civil matter. The petition may be filed with the regional court in the area where you or she reside(s), depending on your mutual arrangement. It should be noted that the agreement must be made in writing. The court will only recognise the agreement if the change of custody is deemed to be in the best interests of the child.
If you cannot reach an agreement, you will need to initiate a civil lawsuit in accordance with the 2015 Civil Procedure Code to request a change of custody.
In this case, you must submit a lawsuit petition and supporting documents to the regional People’s Court in the area where the child resides. The dossier must comprise:
- A lawsuit petition requesting a change of the person directly raising the child (using the court-issued form);
- Your identification papers (identity card or passport);
- A certified copy of the child’s birth certificate;
- The legally effective divorce judgment or decision assigning custody;
- Documents and evidence proving that the current custodial parent no longer meets the necessary conditions to directly care for, nurture and educate the child;
- Certification of the child’s residence information, if required.
After receiving a complete and valid dossier, the court will issue a notice requiring you to pay an advance court fee. Once proof of payment is submitted, the judge will formally accept the case. The first-instance court fee for this type of civil case is VND 300,000.
The court will then proceed with case preparation, including collecting evidence, conducting mediation (where possible), and obtaining the opinion of a child aged seven or older. The preparation period usually ranges from two to four months from the date of acceptance, and the hearing is typically opened within one to two months after the decision to bring the case to trial is issued.
In a contested case, you bear the burden of proving that the current custodial parent no longer satisfies the conditions required to directly care for the child. Evidence submitted should be clear, specific and legally valid in order to persuade the court that a change of custody is necessary.
If your ex-wife has been duly summoned twice but fails to show up without a plausible reason, the court may proceed with the trial in absentia in accordance with the Civil Procedure Code.- (VLLF)
