AFTER DIVORCE, WILL THE CHILDREN STAY WITH THE FATHER OR THE MOTHER? - Q&A WITH OTIS

Due to prolonged conflicts and disharmony during our time living together, my husband and I have decided to divorce. We have two children together, a 6-year-old girl and a 12-month-old boy. My husband insists on having custody of our son, claiming that sons should live with their fathers, while daughters should live with their mothers. However, I disagree because our son is still very young and needs his mother's care. I would like to ask a lawyer about the current laws regarding the child custody right after divorce. I sincerely appreciate receiving guidance from a lawyer. Thank you.

Firstly, we would like to thank you for submitting your question to OTIS LAWYERS. Our lawyer provides the following advice in response to your question: 

Legal basis

The Law on Marriage and Family 2014

The child custody right after divorce

According to Article 81 of the Law on Marriage and Family 2014, the spouses will reach an agreement on who will directly care for the child, as well as the rights and obligations of each party towards the child after divorce. In cases where the spouses cannot reach an agreement, the court will decide on the custody of the child based on the child's best interests. If the child is over 7 years old, their wishes should also be taken into consideration. 

For children under 36 months old, primary custody is typically granted to the mother, unless she is deemed unfit to directly care for and educate the child, or if the parents have a different agreement that is in the best interest of the child. 

Determining child custody also depends on the conditions of the parents, including:

– Economic conditions: the ability to provide housing, food, and other essential needs for the child.

– Mental conditions: the absence of domestic violence and ensuring a stable emotional and affectionate environment for the child.

– Other conditions: the ability to spend time with, care for, and educate the child…

The law prioritizes safeguarding the legal rights and best interests of the child, regardless of their gender. 

Advice from the lawyer

In your case, the lawyer provides the following advice:

If both parties can reach a new agreement on who will directly care for the child, the court will recognize their post-divorce custody agreement.

If an agreement cannot be reached, the court will decide based on the following factors:

– The child's wishes if they are over 7 years old.

– For children under 36 months old, primary custody will usually be granted to the mother, provided she is capable of nurturing and caring for the child. 

Therefore, in your case, the court may divide child custody as follows: the 6-year-old daughter will be entrusted to the father's care, and the 12-month-old son will be entrusted to the mother's care.

This is our advice regarding your question. If you have any further inquiries, please contact OTIS LAWYERS for timely and professional guidance and support.

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