Foreign-element marriage
In every foreign-element marriage and family case, disputes over common children — who raises them directly, how much maintenance, how visitation works — are always the most sensitive and hardest to enforce. Unlike property, which can be converted into money, enforcing a child-related decision across borders depends on cooperation between countries, international treaties, and the law of the host country. This article analyses Vietnam’s legal framework for child custody in foreign-element cases: principles for entrusting children, maintenance, visitation, changing the direct custodian, and the peculiar challenges of cross-border enforcement.
The paramount principle: the best interests of the child
Article 81 of the 2014 Law on Marriage and Family sets the principle governing every decision on children upon parental divorce: looking after, caring for, raising, and educating the children after divorce is entrusted to one party for direct implementation on the basis of ensuring the child’s best interests in all respects. “Best interests in all respects” includes material conditions (housing, schooling, healthcare), emotional conditions (a stable living environment, affection), and the child’s comprehensive development. This principle applies equally to domestic cases and foreign-element cases resolved in Vietnam.
The foreign element does not change the principle, but changes how courts assess it: the ability to ensure the child’s best interests is examined in a cross-border context — for example, the party living abroad may offer better material conditions, but the child would have to completely change their living environment, language, and school; or the party in Vietnam is close to relatives but has more limited economic means. Courts weigh the whole picture; there is no formula of “the richer party gets custody”. In cross-border cases, courts also pay special attention to the feasibility of the plan: a custody arrangement that looks good on paper but cannot actually be enforced will not be chosen. For the service framework for foreigners and overseas Vietnamese, see legal services for foreigners & overseas Vietnamese.
Entrusting children in foreign-element divorce
When parents cannot agree, the court decides which party directly raises the child based on the child’s best interests in all respects. Factors courts consider include: each party’s economic conditions, housing, and actual caregiving time; the emotional bond between the child and each party; who has directly cared for the child so far; the stability of the child’s living and schooling environment; and — in foreign-element cases — the concrete plan of the party seeking custody regarding residence, schooling, healthcare, and maintaining the child’s relationship with the other party and their family.
Practice shows Vietnamese courts are cautious about the option of “taking the child to live abroad” when the other party remains in Vietnam: sudden environmental change and the risk of obstructing the other party’s visitation rights count significantly against it. The party proposing to take the child abroad needs a detailed, convincing plan: specific residence, school, health insurance, and arrangements for maintaining regular contact and visitation with the other party. Conversely, the party in Vietnam who wants to keep the child must also demonstrate actual caregiving capacity — they cannot rely solely on the argument that “the child must stay in Vietnam”.
Children under 36 months and the wishes of children aged 7 and above
Two special age rules apply uniformly, including in foreign-element cases. First, children under 36 months of age are entrusted to the mother for direct care, except where the mother is not qualified to directly look after, care for, raise, and educate the child, or where the parents have another agreement consistent with the child’s interests. “Not qualified” is understood as the mother lacking practical capability in health, finances, or time, or engaging in conduct adversely affecting the child — courts assess based on specific evidence, not presumption.
Second, for children aged 7 and above, the court must consider the child’s wishes before deciding which party directly raises them. In foreign-element cases, taking the child’s opinion must be done carefully: ensuring the child expresses views voluntarily, uninfluenced by either party, with the court weighing the wishes within the child’s overall best interests — the child’s wishes are important but not the sole deciding factor. For children already accustomed to living in one country, the wish to continue a stable environment is usually taken seriously by the court.
Child maintenance with foreign elements
Article 129 provides specifically on maintenance obligations with foreign elements: maintenance obligations follow the law of the country where the person claiming maintenance resides; where the claimant has no residence in Vietnam, the law of the country of which the claimant is a citizen applies. This has major practical significance: the maintenance level is determined according to the cost-of-living standard where the child actually lives — a child living abroad with high costs requires a commensurate maintenance level; the Vietnamese standard cannot simply be applied.
The non-custodial party must maintain the child until adulthood (18), or longer if the adult child has lost civil act capacity, is unable to work, and has no property to support themselves. The maintenance level is agreed by the parties; absent agreement, the court decides based on the obligor’s income, actual capacity, and the child’s essential needs. In foreign-element cases, proving the income of the party abroad (pay slips, bank statements, foreign tax returns — duly legalised) is the key step to determining a fair maintenance level.
Visitation rights and the duty to facilitate
The non-custodial party has the right to visit the child, which no one may obstruct — this is a statutory right, independent of whether that party fully performs their maintenance obligation (the two obligations are separate). In foreign-element cases, visitation rights need far more specification than in domestic cases: how many in-person visits per year, how long each; electronic visitation (video calls) and frequency; who bears travel costs; whether the child may return home to visit the other party during summer holidays.
Dispute practice shows that generic visitation clauses (“may visit the child”) are the source of most post-divorce conflicts in cross-border cases. The custodial party takes the child abroad and then cites various reasons to limit visitation; the other party has no effective enforcement mechanism. The lesson: from the agreement stage or the court’s decision, demand detailed visitation provisions — a concrete schedule, mechanisms for handling obstruction, and clear sanctions. A detailed agreement is not a lack of trust; it protects the rights of both parties and of the child.
Changing the direct custodian
Article 84 allows requesting a change of the direct custodian after divorce on grounds: the current custodian no longer qualifies to directly look after, care for, raise, and educate the child; or the parties agree in a manner consistent with the child’s interests. In foreign-element cases, common grounds for change include: the custodial party moves abroad without a plan ensuring the child’s best interests; the custodial party seriously obstructs the other party’s visitation rights; the custodial party’s economic or health conditions deteriorate; or the child, old enough, expresses the wish to live with the other party.
The procedure for requesting a change of custodian is carried out at the competent court; with foreign elements, jurisdiction and service procedures follow the general provisions of the Civil Procedure Code on foreign-element cases. Note: one party unilaterally taking the child abroad or changing the child’s residence without the other party’s consent (or a court decision) may itself become grounds for the other party to request a change of custodian — a point many people do not foresee when acting unilaterally.
Taking children to live abroad: conditions and risks
After divorce, the custodial party wishing to take the child to settle abroad should note the legal issues. On exit, a child leaving the country needs the consent of the legal representative; in practice, exit procedures for a child may require the other party’s written consent or a court decision — especially where there is a dispute. On entry and residence in the destination country, that country’s visa and residence conditions must be met — a Vietnamese court decision entrusting the child does not automatically entitle the child to enter another country.
The greatest risk is that taking the child abroad against the other party’s will may be assessed as “international child abduction” under the law of the country to which the child is taken — with the consequence of the child’s return under international cooperation mechanisms (the Hague Convention on international child abduction, if both countries are members). Vietnam is a member of the 1980 Hague Convention on the Civil Aspects of International Child Abduction — an important legal instrument for handling cases of unlawful removal of children abroad. Never unilaterally take the child abroad while a dispute is ongoing without a decision of a competent authority.
Enforcing child-related decisions across borders
This is the most difficult part of every foreign-element child case — and the part that needs to be faced honestly. A Vietnamese court judgment on custody or maintenance is only directly enforceable in Vietnam. To enforce it abroad (compelling the party abroad to hand over the child, compelling maintenance obligations), recognition and enforcement proceedings must be carried out in that country — the chance of success depends on international treaties between the two countries, the principle of reciprocity, and the law of the host country. No mechanism guarantees automatic enforcement.
For maintenance obligations, some countries have cooperation mechanisms for collecting and transferring maintenance money through central authorities under international treaties — but their scope is limited and procedures complex. For custody decisions, coercive cross-border enforcement is even harder because it concerns the child’s person and freedom of movement. Practical strategy: prioritise reaching a detailed voluntary agreement between the parties (agreements are more readily respected and easier to enforce than imposed judgments); when litigation is unavoidable, design enforceable claims; and in all cases, put the child’s best interests above the goal of “winning” — a judgment that cannot be enforced and only further fractures the parent–child relationship is a failure for everyone.
FAQs
Can I take my child to settle abroad after being granted custody?
In principle, the custodial party has the right to decide the child’s residence, but note: exit procedures may require the other party’s consent or a court decision where there is a dispute; entry and residence in the destination country must meet that country’s conditions; and the other party’s visitation rights must be ensured through a concrete plan. Never unilaterally take the child while a dispute over the child is ongoing — such conduct may be handled under anti-international-child-abduction mechanisms.
The other party is abroad and refuses to pay maintenance — what can I do?
First, you need a judgment/decision establishing the maintenance obligation. Enforcement abroad depends on the recognition and enforcement mechanism in the country where the obligor resides — under international treaties, the principle of reciprocity, and the law of the host country. Some countries have cooperation mechanisms for collecting maintenance. Talk to a lawyer to assess the realistic enforceability in the relevant country before starting the procedure, as costs and time may be significant.
My child holds two nationalities — which country’s court decides custody?
The child’s nationality is not the sole factor determining jurisdiction. When the divorce is resolved at a Vietnamese court, the common-children issue is resolved in the same case under Vietnamese law. However, if a foreign court has already issued a decision on the child, recognition procedures must be carried out in Vietnam (or vice versa) to avoid two conflicting judgments. Complex cases should involve multi-jurisdiction legal coordination from the start.
The custodial party is obstructing my visitation — how is this handled?
Obstructing visitation rights is a violation of law. You may request the civil judgment enforcement agency to organise enforcement of the visitation decision; in cases of serious, prolonged obstruction, this may be grounds for requesting the court to change the direct custodian under Article 84. Keep evidence of the obstruction (messages, minutes, witnesses) — this is an important basis for requesting intervention by competent authorities.
How is maintenance calculated for a child living abroad?
Under Article 129, maintenance obligations follow the law of the country where the maintenance claimant (the child) resides. The specific level is agreed by the parties; absent agreement, the court decides based on the obligor’s income, actual capacity, and the child’s essential needs — at the cost-of-living standard where the child lives. Where the child lives in a high-cost country, the maintenance level will be commensurate, and evidence of the obligor’s income (duly legalised) is needed to determine it fairly.
Useful links
Talk to a lawyer at FLAT LAW FIRM
Foreign-element child disputes need handling that is both legally sound and humane towards the child. Talk to us when:
- You are in a foreign-element divorce and need a plan for the common children.
- You want to request a change of the direct custodian.
- The other party obstructs visitation or fails to perform maintenance obligations.
- You need to take your child to live abroad lawfully and safely.
- Your child is at risk of, or has been, taken abroad against your will.
The content on this website is for general information only and does not substitute legal advice for specific cases.
Legal regulations, the competence of state authorities, and administrative procedures may vary over time, by locality, and by file. Clients should consult a lawyer before making decisions or transactions.
