I am a foreigner once married to a Vietnamese and have lived in Vietnam for two years. We don’t have a common child during our marriage and were divorced eight months ago. I returned to my country afterwards. Recently, my ex-wife has told me that she just gave birth to a child whom she regarded as our common child and asked me to share the responsibility for raising the child.
How can I be sure that the child is mine and how does the Vietnamese law prescribe my parental responsibility? And can I get the whole custody of the child?
According to Vietnamese law, a child who is conceived by the wife during marriage or is born within 300 days after the court’s judgment or ruling on divorce of his/her parents becomes legally effective is the common child of the divorced couple.
In case either of the divorcees refuses to recognize a child as their common child, he/she has to present an evidence to the court for verification.
The either of the parents of the child may himself/herself conduct a DNA partenity or martenity test for the child or request the court to do so or present other evidence to prove that the child is not his/hers. The DNA testing result, other evidence and request of the father or mother will be considered for use by the court.
However, you should be advised that the ruling of the court is of the highest legality for determining whether the child is the common child of the divorced couple or not. Though the wife registers the childbirth and can get a birth certificate for the child at a competent agency and refuses to recognize that the child is the common child, the husband may still request the court to consider and rule that the child is the common child and vice versa.
In case the child is verified to be yours, according to Vietnamese law, the divorced parent who does not directly raise a child is obliged to respect the child’s right to live with the person who is directly raising him/her and pay alimony on a monthly, quarterly, biannual, annual or one-off basis.
In case the person with maintenance duty encounters a financial problem, thus becoming unable to perform his/her maintenance duty, the divorcees may reach agreement to change the method of alimony payment or temporarily cease the alimony payment; if they fail to reach agreement, they may request a court to settle it.
So, after the divorce, you still have the right and obligation to visit and care for the child. However, you may not take advantage of your custody right to obstruct or badly affect the looking after, care for, nurturing and education of the child. Your ex-wife may have the right to request a court to restrict your child custody right whenever you do so.
In case your wife has difficulties in raising the child, you may request a court to rule that you get the whole custody of the child in replacement of your ex-wife. The change of the person directly raising a child after the divorce of his/her parents may be allowed when there is one of the following grounds:
- The parents agree on change of the person directly raising a child in the best interest of the child;
- The person directly raising the child no longer has sufficient conditions to directly look after, care for, nurture and educate the child.
- The change of the person directly raising a child aged full 7 years or older, must be consented to by such child.
If deeming that both parents fail to have sufficient conditions to directly raise the common child, the court will decide to assign the child to a guardian in accordance with the Civil Code.- (VLLF)