Conditions for having custody of children upon divorce 2022. Conditions for having custody of children upon divorce is the biggest concern of couples when deciding to separate, although there are specific provisions of the Law. but it also depends on the actual situation, economic conditions, the will of the child,…with many influencing factors. Thoidaihaitac.vn would like to send you the following references for specific research on child custody after divorce and in which cases the mother cannot raise children.
Regulations on child rearing conditions upon divorce
- 1. Conditions for having custody of children upon divorce?
- 2. Conditions to win custody of children after divorce?
- 3. In which case the mother is not allowed to raise the child?
1. Conditions for having custody of children upon divorce?
Ask: I got married to my husband in 2014. At first we lived happily and had a daughter born in 2016. However, when I was 3 months pregnant with my second child, my husband had unusual symptoms. often, often coming home late, sometimes even making excuses for working overnight and not coming home.
I have repeatedly asked, even strained, but my husband refused to speak. Until one time I directly caught my husband having an affair with another girl, and he confessed to having sex with that girl for more than a year, and asked for my forgiveness. Because of thinking about the young child and the child in my belly, I gritted my teeth and patiently ignored it, but he still seemed to have every disability, even more openly.
By the time I was pregnant for the 6th month, his entire salary and income did not contribute to raising children and taking care of the family. He also ruthlessly announced that he wanted to divorce me and ask for custody of the eldest child. I am currently pregnant with my second child to 8 months. I would like to know in this case if I do not agree to divorce, will the Court handle it? If I agree to divorce, will I have custody of both children? What are my husband’s obligations if I have custody of both children? What are the conditions for me to have both children?
We seek legal advice as follows:
According to the provisions of law, the issues you ask will be resolved in the following cases:
a) Where the husband insists on unilaterally applying for a divorce even though the wife does not agree
Clause 2, Article 51 of the Law on Marriage and Family 2014 (Law on Family Relations) stipulates:
A husband has no right to request a divorce in case his wife is pregnant, giving birth or raising a child under 12 months old.
If her husband still insists on unilaterally applying for divorce and filing the application, the Court will return the application or explain to her husband that he has not yet had the right to request a divorce so that he can voluntarily withdraw the application. After being explained, if her husband still insists on not withdrawing the application, the Court will handle it according to general procedures and decide to reject her husband’s petition for divorce. In case the divorce application is rejected by the Court, after one year from the date on which the court’s judgment or decision rejecting the divorce application takes legal effect, that person may again request the Court to settle the divorce petition. ask for a divorce.
So, if you don’t agree to divorce (ie not agreeing to divorce) then Your husband will not have the right to unilaterally apply for a divorce until her second child turned 12 months old. So also There are no issues that I wonder about, such as the right to directly raise two children and husband’s obligations after divorce.
b) In case the wife agrees to divorce
If she considers and decides to agree to divorce her husband, agrees to sign the divorce application, the Court will accept the application and settle the divorce if there are enough grounds as prescribed in Article 90 of the Law on Marriage and Family. If you agree to divorce, then three problems will arise:
Firstly, about the right to directly raise children
Pursuant to Clause 2, Article 81 of the Family Law stipulates:
Husband and wife agree on the person directly raising the child, obligations and rights of each party after divorce towards the child; in case no agreement can be reached, the court shall decide to assign the child to one party to directly raise it based on the child’s interests in all aspects; if the child is full 07 years old or older, the child’s wishes must be considered.
In principle, children under the age of three are assigned to their mothers to directly raise, unless otherwise agreed upon by the parties.
If her first child as of the time of trial is less than 3 years old, she will have custody of her grandchildren and her second child will also be raised after giving birth. Of course, she also needs to prove to the Court her ability to be able to raise and take care of both children such as: health situation, accommodation conditions, employment, monthly income, conditions care, education,…
Secondly, about looking after, caring for, educating and raising children after divorce:
Articles 81 and 82 of the Law on Marriage and Family 2014 provide:
After the divorce, the husband and wife are still obliged to look after, care for, educate and raise their minor or adult children who are disabled, have lost their civil act capacity, are unable to work, and have lost their civil act capacity. have no assets to support themselves. Persons who do not directly raise children are obliged to provide child support.
After the divorce, the person who does not directly raise the child has the right to visit the child; No one shall prevent that person from exercising this right.
In cases where the person who does not directly raise the child abuses visitation to obstruct or adversely affect the care, care, education and rearing of the child, the person directly raising the child has the right to request the Court to restrict visitation rights of that person’s children.
Third, Regarding the alimony obligations of parents towards their children upon divorce
Article 82 of the Law on Family Marriage stipulates: Upon divorce, the father or mother does not directly raise the minor child or the adult child is disabled, has lost the capacity for civil acts, has no working capacity and has no property. to support themselves have the obligation to support children.
Child support levels are agreed upon by parents; If they cannot reach agreement, they shall request the Court to settle.
Child support includes the minimum expenses for the upbringing and education of the child and is mutually agreed upon by the parties. In case the parties cannot reach an agreement, the Court will decide on a reasonable level of child support depending on each specific case and ability of each party. The mode of support shall be agreed upon by the parties on a monthly, quarterly, semi-annual, annual or one-time basis. In case the parties cannot reach an agreement, the Court shall decide on the monthly support method.
So, if she won the right to directly raise both children then Her husband is obliged to support her so that she can have more conditions to raise children. Because this is the duty of parents; therefore, her husband is obliged to support the child.
2. Conditions to win custody of children after divorce?
One of the issues that couples often argue the most in divorce cases is custody of children. Although the law on marriage and family has specific provisions on this aspect, there are many factors that determine the ability of each person to raise children. So what are those factors? And where is Necessary conditions to win custody of children after divorce?
In principle, Child custody rights after divorce can be agreed upon by the parties (husband and wife) and recorded by the court in the judgment.. After a divorce, the person entitled to child custody has the obligation to care for, raise, and educate the child when he or she is a minor (under 18 years old) or is an adult but is disabled, has lost the capacity for human acts, or is not physically active. have the ability to work and have no assets to support themselves. The person who does not directly raise the child has the obligation to support (the level of support depends on economic conditions or as agreed upon) for the other person to take care of and nurture until he is an adult.
In case, couple It is impossible to agree on who will raise the children At this time, the Court will have the right to judge and assign child custody to one spouse. The court’s decision is based on the interests of all aspects and looks forward to the good future of the child. Some benefits are considered such as: learning conditions, conditions of care, nurturing, travel…
So, consider basically then Whoever has better conditions in terms of income, property, and job will get custody of the children. Usually that is largely in favor of the husband.
But in reality, the mother wins the emotional, moral, and methodical edge of parenting.
- In case, Children over 7 years old, the court will ask their opinions and wishes.
- In case, Children under 3 years old, the custody of the children will belong to the mother except when the mother does not want to raise the child.
However, After obtaining custody of the child, if it is discovered that in the process of raising a child, that person has not fulfilled his responsibilities, the other person has the right to file a petition to change the child custodian.
3. In which case the mother is not allowed to raise the child?
According to the provisions of Article 81 of the Law on Marriage and Family 2014, it can be seen that not every mother will be able to raise her child. Clause 3, Article 81 of the Law on Marriage and Family indicates two cases where the mother cannot raise children, including:
– The mother is not qualified to directly look after, care for, raise and educate her child.
– Parents have other agreements in line with the interests of their children.
A mother who is eligible to raise a child must meet the requirements for a guardian specified at Point b, Clause 1, Article 47 of the Civil Code.
Minors have a father or mother, but both of their parents have lost their civil act capacity; both parents have difficulties in perception and behavior control; both parents have limited civil act capacity; both parents have been declared by the Court to have limited rights to their children; Both parents are unable to care for and educate their children and require a guardian.
Therefore, if the mother falls into the following cases: loss of civil act capacity, cognitive difficulties, being declared by the court to limit her rights to her children, not being qualified to take care of her children’s education, having a poor personality, etc. not good… is said to be ineligible to raise children.
Besides the economic factor, it is more important to give children a beautiful and loving childhood in the presence of parents to teach, instruct and educate their children. This is also a decisive factor for children to develop not only physically but also mentally, children will develop a healthy, sociable mentality, grow up to become useful citizens for society. festival.
Therefore, the person who wins custody of a child is the person who can ensure all conditions for the child’s development and future because the Vietnamese state law always focuses on the rights and future of the child. The law of our country besides the arguments, the iron law also always focuses on “love”, so the mother’s right to raise children is always a priority. Regardless of which parent has more conditions, for a child who is over 7 years old when making a decision on child custody, the Court will also base on the child’s wishes.
It can be seen that the law of the country, especially in the matter of the Law on Marriage and Family of our country, is increasingly developing, in addition to strict discipline, it always contains arguments and everyday feelings. It is also the basis for the law from documents and papers to come into practice in people’s lives.
This article has clarified issues about the conditions for having child custody upon divorce and the case where the mother cannot have custody of the children. Please refer to the relevant articles in the section Civil, Marriage and Family Law FAQ and Legal Dissemination of Thoidaihaitac.vn.
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