Question 47: During the marriage period, if a spouse brings the common child(ren) to live in a different place without the other’s prior consent, can that person bring the child(ren) back to the house where they are living by himself or herself, or through a third party?

Husband and wife are equal[4] to each other in all aspects of the family, including the care and nurturance for children, as well as their education. Based on that constitutional right, the Law on Marriage and Family stipulates that the spouses have equal rights to look after, care for, nurture, educate the children, and protect their legitimate rights and interests[5]. Therefore, if a spouse takes a child to a different place or hinders the other’s effort to care for, nurture and educate their children, it is a violation of the spouses’ rights and obligations towards the family[6], affecting the children’s mental health and living quality.

However, the current Law on Marriage and Family does not have specific regulations for settlement in case a spouse takes his or her child to a different place without the prior consent of the other. In practice, when this situation occurs, the other spouse can by himself or herself, or by requesting a third party, e.g. relatives, the State management agencies on families and children, the local authorities for their help in finding where the child is living with the spouses to discuss the best approach for taking care of, nurturing, and ensuring the development and legitimate rights of their children, according to the children’s desire instead of forcing them to do something against their will. In case the parents are unable to resolve their dispute over child care issues and wish to terminate their marriage relationship, they may file a petition to request a divorce on the basis that the rights and obligations of the spouses have been seriously violated by the other side. Therefore, divorce is inevitable, and issues regarding child custody and support must be settled in order to ensure the safeguard of the spouses respective rights as well as that of their children.

[4] Article 36.1 of the Constitution 2013.

[5] Articles 69.2, 71.1, 72.1 of Law on Marriage and Family 2014.

[6] Article 19 of the Law on Marriage and Family 2014.

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