Question 49: In principle, if the child is under 36 months old at the time of divorce, the mother shall have custody of the child. However, is the mother entitled to transfer custody of the child to the father if she does not want custody since she is unable to care for, nurture, and educate the child? Or may the father be granted custody by proving the mother’s inability to care for, nurture, and educate the child?

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The Law on Marriage and Family 2014 stipulates the special principle that children under 36 months old are brought to their mothers for the sake of better protection for their rights. In general, parents negotiate by themselves first to decide who shall have custody of the child, if an agreement cannot be reached, the Court will determine accordingly with all aspects of the child’s interests. In case the mother meets the above conditions but does not want to be bear such responsibility, she must negotiate with the father in the interest of the child in all aspects. If she is not eligible to directly look after, care for, nurture and educate the child, the father will be entitled to direct custody of the child but must still ensure all aspects of the child’s interests[2].

After all, the core principle is that the law, when determining the custodial parent, is based on the safeguard of all aspects of the children’s interests. Therefore, even if any child is under 36 months old, the mother still must have basic necessities such as accommodation, sufficient income, enough time to look after, take care of and raise the child, etc. The mother will be prioritised by the Court for sole custody of all children under 36 months old in order to ensure the normal development of the children’s physique and mental abilities. The Court will consider bringing a child under 36 months old to the father only when both parents agree or when the father can prove that the mother is unfit to be granted custody of the child.


[2] Article 81.3 of the Law on Marriage and Family 2014.

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