22 December 2021
In addition to common assets division, children custody is a most concerned issue to parents when divorcing. Many people believe that children do not have the right to choose a parental custodian and that only parents have the right to decide. However, a Court might collect children’s opinion to determine who they want to live with in divorce cases.
Through this article, BLawyers Vietnam would like to present children’s decision right in the parental divorce.
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Considering children’s desire in the parental divorce
The rights and obligations of parents include the care, nurse, and education of their children, regardless of whether their marital relationship is still active or ended. As a result, even after a divorce, parents must continue to care for, raise, and educate their children.
Based on the children’s interests, parents have the right to discuss and agree on who will directly raise and educate the child after the divorce. If the parents’ agreement is not reasonable, does not protect the children’s interests in all aspects, or the parties are unable to reach an agreement, the Court will decide to assign the children to one party to raise the child based on many factors. Gaining the opinions of minor children aged 7 years or older is a compulsory procedure. Representatives from state management agencies in charge of family and state management agencies in charge of children may be invited if necessary.
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Form of fulfillment children’s desire
To the Court to consider the children’s desire, the children must be full 7 years old or older and must submit a written request to the Court to present his/her desire to the Court for consideration and settlement.
The Court collects opinion of children with full 7 years old or older in writing (by a declaration, self-declaration, handwritten, or typing version) with the children’s and parents’ signatures or fingerprints. Before settling the divorce case, the Court will collect children’s opinion at its headquarters. In some actual cases, the Court collects the children’s opinions in writing then at the request of one of the parties involved, the Court invites the children to present their desire right at the trial.
Before settling a case in the local where the Family and Juvenile Court has been established, such Court will collect the children’s opinion at the Children’s Room.
Children opinion collection and other legal proceedings involving children must be friendly and appropriate to the juvenile’s psychology, age, maturity, and cognitive ability, protect their legitimate rights and interests and keep personal secrets.
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Are children’s desire decisive?
Considering the desire of children with full 7 years old or older is one of the factors considered by the Court in determining who has the right to directly raise the children. This demonstrates regard for the children’s rights and interests.
The children’s opinions are frequently directional and referencing, and they are considered by the Court when deciding. In addition to the children’s desire, the Court must consider several other factors, including the children’s living situation, income, time available to care for the children, and the actual circumstances of the person who will be directly raising the children after the divorce. In all aspects, determining who has the right to directly raise children after a divorce must be based on the children’s best interests.
If the children refuse to stay with, the parents can still win custody of the children if they can show the Court that they meet the conditions and are better able to raise the children in all ways while ensuring the children’s best interests.
In short, it is critical to collect the opinions of children when resolving disputes over child custody during divorce. The Court must consider the children’s desire to ensure the children’s benefit.
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