I. INTRODUCTION
In the context of globalization and the increasing number of marriages involving foreign elements, disputes over child custody in divorce cases with foreign elements have become increasingly common and complex. Beyond determining which parent will have direct custody of the child, such disputes raise a fundamental issue of private international law: which legal system should govern child custody— the law of the child’s nationality or the law of the child’s place of residence?
The choice of applicable law not only directly affects the outcome of the dispute, but also reflects legislative perspectives on the level of child protection, respect for legal sovereignty, and the capacity of Vietnamese law to integrate into the international legal framework. This article analyzes the current legal basis under Vietnamese law, clarifies the advantages and disadvantages of each approach, and proposes an appropriate direction for determining child custody in divorce cases involving foreign elements.
II. OVERVIEW OF DIVORCE WITH FOREIGN ELEMENTS AND CHILD CUSTODY
1. Divorce involving foreign elements
Pursuant to Clause 25, Article 3 of the 2014 Law on Marriage and Family (LMF 2014):
“A marriage and family relationship involving foreign elements is a marriage and family relationship in which at least one party is a foreigner, a Vietnamese citizen residing overseas, or in which both parties are Vietnamese citizens but the establishment, change, or termination of such relationship takes place abroad.”
In such cases, child custody is governed not only by marriage and family law but also by conflict-of-law rules under the Civil Code.
2. Child custody as a mechanism for protecting children’s personal rights
In essence, child custody is not a right of the father or mother, but a legal mechanism aimed at safeguarding the lawful rights and interests of the child. This perspective is consistently reflected throughout the LMF 2014, particularly in Article 81.
Clause 2, Article 81 of the LMF 2014 provides:
“Where the parents fail to reach an agreement, the court shall decide to assign the child to one party for direct care based on the child’s best interests in all respects.”
III. LEGAL BASIS FOR DETERMINING THE APPLICABLE LAW TO CHILD CUSTODY IN CASES WITH FOREIGN ELEMENTS
1. Provisions of the 2015 Civil Code on applicable law
The 2015 Civil Code (CC 2015) serves as the central legislative instrument governing conflict-of-law issues.
a) General principle
Article 664 of the CC 2015 stipulates:
“Civil relations involving foreign elements shall be determined in accordance with Vietnamese law, unless otherwise provided by Vietnamese law or by international treaties to which the Socialist Republic of Viet Nam is a party.”
b) Applicable law to marriage and family relations
Article 122 of the LMF 2014 provides:
“The settlement of marriage and family relations involving foreign elements shall comply with this Law and the law on private international law.”
However, the LMF 2014 does not specifically prescribe the applicable law for child custody. Accordingly, the relevant provisions of the CC 2015 must be applied.
Article 673 of the CC 2015 (relations between parents and children) provides:
“The rights and obligations between parents and children shall be determined in accordance with the law of the country where the child has his or her habitual residence.”
This provision constitutes a key legal basis demonstrating that Vietnamese law prioritizes the law of the child’s place of residence rather than the law of nationality.
IV. ANALYSIS OF TWO APPROACHES: LAW OF NATIONALITY OR LAW OF PLACE OF RESIDENCE?
1. Application of the law of the child’s nationality
a) Advantages
- Closely connected to the child’s stable personal status;
- Consistent with the traditional approach of many classical legal systems;
- Easier to determine where the child lacks a stable place of residence.
b) Limitations
- The law of nationality may fail to reflect the child’s actual living conditions;
- It may overlook the educational, cultural, and social environment to which the child is attached;
- It may inadequately safeguard the principle of the “best interests of the child.”
2. Application of the law of the child’s place of residence
a) Legal basis
As analyzed above, Article 673 of the CC 2015 designates the child’s habitual residence as the connecting factor for determining the applicable law.
b) Advantages
- Reflects the child’s actual living conditions;
- Facilitates evidence collection and assessment of the caregiving environment;
- Aligns with international standards on child protection.
c) Limitations
- The concept of “habitual residence” may be difficult to determine in practice;
- It may be abused where one parent unilaterally relocates the child abroad.
V. PRACTICAL ASSESSMENT AND RECOMMENDATIONS
1. General assessment
Vietnamese law has made significant progress by selecting the law of the child’s place of residence as the applicable law governing parent–child relations involving foreign elements. This approach reflects a shift from a “nationality-centered” perspective to a “child-centered” approach.
Nevertheless, practical application remains challenging due to:
- The absence of specific guidance on determining the child’s habitual residence;
- The lack of effective mechanisms to address the unlawful removal of children abroad.
2. Recommendations
- Promulgate unified guidelines on criteria for determining the child’s habitual residence;
- Strengthen international judicial cooperation in child custody disputes;
- Further internalize international standards on child protection in cross-border family relations.
VI. CONCLUSION
Child custody in divorce cases involving foreign elements represents a典型领域 of private international law, where national legal sovereignty intersects with the imperative to protect human rights. Based on an analysis of current Vietnamese law, it can be affirmed that applying the law of the child’s place of residence is more appropriate than applying the law of nationality, as this approach better safeguards the child’s rights and interests in all respects—particularly those of a vulnerable subject requiring special protection.
However, for this principle to be effectively implemented in practice, Vietnamese law must continue to refine its implementing regulations and mechanisms for international cooperation, ensuring that in all cases, the best interests of the child remain the paramount consideration in resolving child custody disputes in divorce cases involving foreign elements.
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Khuong Ngoc Lan