1. Introduction
The increasing prevalence of marriages involving foreign elements has given rise to numerous complex legal issues concerning children. One of the most common situations occurs when parents divorce or no longer live together, reside in different countries, and both wish for the child to live with them.
In such circumstances, determining a child’s place of residence is not merely a matter of choosing where the child lives. It is also closely related to a wide range of legal issues, including:
- The right to directly raise and care for the child;
- Visitation rights;
- Child support obligations;
- The child’s nationality;
- The jurisdiction of courts to resolve disputes;
- Recognition and enforcement of foreign judgments.
2. The Concept of a Minor’s Place of Residence Under Vietnamese Law
Article 12 of the 2020 Law on Residence provides:
“The place of residence of a minor shall be the place of residence of his or her father or mother; where the father and mother have different places of residence, the place of residence of the minor shall be the place of residence of the father or mother with whom the minor regularly lives.”¹
This provision demonstrates that Vietnamese law does not automatically determine a child’s place of residence based on either the father or the mother.
The decisive factor is the place where the child actually and regularly resides.
Therefore, in cases where the father resides in Vietnam and the mother resides abroad, or vice versa, the child’s place of residence is primarily determined based on the child’s actual living situation.
3. The Right to Decide a Child’s Place of Residence While the Marriage Is Still Valid
Article 69 of the 2014 Law on Marriage and Family provides that parents have the obligation to care for, nurture, educate their children, and ensure the best interests of the child.²
Furthermore, Article 71 of the 2014 Law on Marriage and Family stipulates:
“Parents have equal rights and obligations in caring for and raising their children.”³
Accordingly, while the marital relationship remains valid, decisions regarding the child’s place of residence must be based on the mutual agreement of both parents.
If one parent unilaterally takes the child abroad to reside without the consent of the other parent, such conduct may lead to disputes over custody rights or may even be considered international parental child abduction under the laws of certain countries.
4. Determining a Child’s Place of Residence After Divorce
4.1. The Principle of Prioritizing Agreement Between the Parents
Article 81 of the 2014 Law on Marriage and Family provides:
“After divorce, parents shall continue to have the rights and obligations to care for, nurture and educate their minor children.”⁴
Vietnamese law gives priority to the parents’ agreement regarding:
- The person directly raising the child;
- The child’s place of residence;
- Visitation arrangements;
- Child support obligations.
If an agreement is reached, the court will generally record it in the judgment or decision recognizing the consensual divorce.
4.2. Cases Where the Parents Cannot Reach an Agreement
Where the parents fail to reach an agreement, the court will decide which parent will directly raise the child.
Clause 2 Article 81 of the 2014 Law on Marriage and Family provides:
“The court shall decide to assign the child to one parent for direct upbringing based on the child’s best interests in all respects.”⁵
This is the most important principle in disputes involving children.
The court does not prioritize the interests of either parent but instead considers:
- Financial conditions;
- Childcare capacity;
- Educational environment;
- Healthcare conditions;
- The emotional bond between the child and each parent;
- The ability to ensure the child’s comprehensive development.
5. Do Children Have the Right to Decide Their Own Place of Residence?
Clause 3 Article 81 of the 2014 Law on Marriage and Family provides:
“The wishes of a child aged seven years or older must be taken into consideration.”⁶
This means that:
- Children do not have the absolute right to make the final decision themselves;
- However, their opinions constitute an important factor for the court’s consideration.
For example, if the father resides in Australia and the mother resides in Vietnam, and a 12-year-old child wishes to continue living and studying in Vietnam, the court will take that preference into account when determining custody.
6. International Disputes Concerning the Relocation of Children Abroad
In practice, many disputes arise where:
- One parent takes the child abroad;
- Subsequently refuses to allow the other parent access to the child; or
- Refuses to return the child to the country where the child previously resided.
Such cases often involve what is commonly referred to as:
“International parental child abduction.”
Internationally, this issue is governed by the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
The objective of the Convention is to ensure the prompt return of children to their habitual residence prior to their wrongful removal or retention.
Vietnam is currently not a party to this Convention. Consequently, resolving disputes involving children who are taken abroad or brought into Vietnam against the wishes of one parent remains particularly challenging.
7. Jurisdiction Over Disputes When Parents Reside in Different Countries
Under the 2015 Civil Procedure Code, Vietnamese courts have jurisdiction to resolve child custody disputes involving foreign elements in certain circumstances, particularly where:
- The child is a Vietnamese citizen;
- One parent resides in Vietnam; or
- The marital relationship was established or performed in Vietnam.
However, in practice, situations may arise where:
- A Vietnamese court awards custody to the mother;
- While a foreign court recognizes the father’s custody rights.
This may result in conflicts of jurisdiction and difficulties in enforcing judgments.
8. Commentary and Recommendations
Based on the current legal framework, it can be seen that Vietnamese law adopts a child-centered approach, placing the best interests of the child at the core of decision-making.
This approach is consistent with:
- The United Nations; and
- The 1989 United Nations Convention on the Rights of the Child.
Nevertheless, several issues require further improvement.
First, more effective mechanisms for international cooperation in resolving cross-border child custody disputes should be established.
Second, Vietnam should consider the possibility of acceding to international treaties concerning child protection and the prevention of wrongful international child removal.
Third, legal provisions on the recognition and enforcement of foreign judgments relating to child custody should be further refined.
Fourth, greater emphasis should be placed on mechanisms that ensure children’s views are properly heard in family law disputes involving foreign elements.
9. Conclusion
When parents reside in different countries, determining a child’s place of residence should not be based solely on nationality, financial circumstances, or the place of residence of either parent. Rather, it must be guided by the principle of protecting the child’s rights and best interests.
Under Vietnamese law, the residence of a minor is determined based on the place where the child regularly lives with either parent. In the event of a dispute, the court will comprehensively assess factors relating to the child’s physical, emotional, educational, and social development before making a decision.
As marriages involving foreign elements continue to increase, improving the legal framework governing the determination of children’s residence, the recognition of foreign judgments, and the protection of children’s rights in cross-border disputes is essential to ensuring the effective implementation of the law and aligning Vietnam with the trend of international integration.
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1. Lawyer Vu Thi Phuong Thanh, Ha Noi Bar Association
Email: vtpthanh@tlalaw.vn
2. Lawyer Tran My Le, Ha Noi Bar Association
Email: tmle@tlalaw.vn
Khuong Ngoc Lan