Divorce with young children is not a decision for the spouses alone — the law places the best interests of the child above all in every ruling on custody and support. Here are 5 key legal notes under the Law on Marriage and Family 2014 and Resolution 01/2024/NQ-HDTP of the Judicial Council of the Supreme People’s Court.
1. Parental agreement comes first — the court decides only when there is no agreement
Article 81.2 of the Law on Marriage and Family 2014 provides that the spouses agree on who will directly raise the child and on each party’s obligations and rights after divorce. Only when they cannot reach an agreement does the court decide to entrust the child to one party for direct care, based on the best interests of the child in all respects. Reaching a reasonable agreement from the outset therefore not only reduces conflict but also gives parents more control over their child’s living arrangements. Resolution 01/2024/NQ-HDTP provides detailed guidance on Article 81, specifying the criteria for assessing “the best interests of the child in all respects”, such as emotional attachment, physical and mental safety, and the child’s living conditions.
2. Three decisive age thresholds for child custody
The law sets three key age milestones when deciding child custody after divorce:
- A child under 36 months of age is entrusted to the mother for direct care, except where the mother is not qualified to directly look after, care for, nurture and educate the child, or where the parents have another agreement consistent with the child’s interests (Article 81.3). Note that the law uses the threshold “under 36 months of age”, with two clear exceptions — it is not “always the mother, no exceptions”.
- For a child aged full 7 years or older, the child’s wishes must be considered (Article 81.2). “Consider” does not mean “decide as the child wishes” — the court still decides based on the best interests of the child in all respects, but must listen to and weigh the child’s wishes.
- After divorce, parents retain the rights and obligations to look after, care for, nurture and educate their minor children (Article 81.1).
3. Not having direct custody does not end parental rights and obligations
The parent who does not directly raise the child retains full rights and obligations under Article 82: the obligation to respect the child’s right to live with the directly-raising parent; the obligation to provide support for the child; and the right and obligation to visit the child, which no one may obstruct. Conversely, the directly-raising parent must not obstruct the other party in visiting, caring for, nurturing and educating the child (Article 83). If the visiting party abuses visitation to obstruct or adversely affect the care, nurturing and education of the child, the directly-raising parent may request the court to restrict visitation rights (Article 82.3). Three distinct regimes should not be confused: changing the directly-raising parent (Article 84), restricting visitation rights (Article 82.3), and the separate regime on restricting parental rights over minor children.
4. Support levels are agreed — the law sets no floor or ceiling
Article 110 provides that parents have the obligation to support their minor children where they do not live with the child, or live with the child but breach their nurturing obligations. As to the level of support, Article 116 provides that the level is agreed by the parties based on the income and actual capacity of the obligor and the essential needs of the supported person — the law sets no specific floor or ceiling. Any “usual support level” figures are only practical references, not statutory rules. Where there are legitimate reasons, the support level may be changed. Support methods are also flexible: monthly, quarterly, semi-annual, annual instalments, or a lump sum (Article 117); the parties may agree to change the method or temporarily suspend support where the obligor faces economic hardship and cannot perform. Support obligations terminate in the cases listed in Article 118, such as when the supported person reaches adulthood and is capable of working or has property to support themselves. Note: one should not state absolutely that “support ends at 18” — Article 110 still covers adult children who lack working capacity and have no property to support themselves.
5. The directly-raising parent can be changed when circumstances change
A custody decision after divorce is not set in stone. Article 84 allows the court to change the directly-raising parent upon request by the father, mother, or individuals and organizations (relatives; state family-management agencies; state child-management agencies; the Women’s Union). Grounds for change include: the parents agree on a change consistent with the child’s interests; or the directly-raising parent is no longer qualified to directly look after, care for, nurture and educate the child. When changing custody, the court must still consider the wishes of a child aged full 7 years or older (Article 84.3). Where neither parent is qualified, the court entrusts the child to a guardian under the Civil Code (Article 84.4).
FAQ
Must a child under 36 months always be raised by the mother?
As a rule the child is entrusted to the mother for direct care, but there are two exceptions: the mother is not qualified, or the parents have another agreement consistent with the child’s interests (Article 81.3).
Must the court follow the wishes of a child aged full 7 or older?
The law only requires the child’s wishes to be “considered” (Article 81.2, Article 84.3). The wishes are a factor that must be weighed, but the final decision is still based on the best interests of the child in all respects.
Can the non-custodial parent refuse to pay support?
No. The support obligation is a legal duty (Article 82.2, Article 110) that cannot be replaced by another obligation or transferred to another person. The supported person, parents, guardians, relatives and certain agencies and organizations all have the right to request performance of the support obligation (Article 119).
References
- Law on Marriage and Family 2014 (52/2014/QH13): Article 81 (looking after, caring for, nurturing and educating children after divorce), Article 82 (obligations and rights of the parent not directly raising the child), Article 83 (obligations and rights of the directly-raising parent), Article 84 (changing the directly-raising parent after divorce), Article 110 (support obligations), Article 116 (support levels), Article 117 (support methods), Article 118 (termination of support obligations), Article 119 (persons entitled to request performance of support obligations).
- Resolution 01/2024/NQ-HDTP of the Judicial Council of the Supreme People’s Court: guiding the application of Article 81 of the Law on Marriage and Family 2014.
The legal content of this article is reviewed by FLAT’s AI Legal Council and submitted to the owner for approval; it is not an opinion of a licensed lawyer and does not replace legal advice for specific cases.
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