Question 51: Who will have custody over the child during the time waiting for a decision from the Court? Can either parent prevent the other from having custody of their children? Which circumstance is it allowed and if allowed, what shall such parent do?

While waiting for the Court to resolve the divorce case, the two spouses are still legally recognised as spouses[2]. Therefore, both the spouses are equal in rights and obligations to care, nurture, and educate their children. If either spouse wishes to have sole custody of the children during this time, he or she may negotiate to decide who shall be the most eligible for caring, nurturing and educating their children, for the sake of proving the best conditions for the development of the children, in terms of material and mental health conditions, while also taking the children’s desire into account.

However, in cases where a spouse files a request to the Court to settle a divorce because of the other spouse’s violence against their children, making the children a victim of domestic violence, while waiting for the Court to settle a divorce, that person can prevent the abusive parent from having custody over the children by requesting for support from the Court and competent State authority.

According to the current law, the Court can issue a decision to apply measures prohibiting the abusive parent from having contact with the victim of domestic violence within a maximum period of 04 months while the petition for divorce is being processed if following conditions are met[4]:

  • There is a written request from the victim of domestic violence, his or her guardian or legal representative or from a competent agency or organisation; in case of a request from the competent agency or organisation, the consent of the victim of internal violence is compulsory;
  • The act of domestic violence harms or threatens to harm the victim’s life and health; and
  • The abuser and the victim live in different places during the time of prohibition.

Therefore, if the above conditions are met, a spouse who is directly looking after, caring for, nurturing and educating the children can file a request to the Court to issue a ban so that the abusive parent cannot contact the victim while waiting for a Court to issue decision regarding resolving the divorce.

The ordinary waiting time for the Court’s decision might be tempered with if it is considered to be necessary to quickly and urgently prevent the abusive parent from committing acts of domestic violence against the children. The other spouse can request the support from the President of the People’s Committee of the ward or commune where the domestic violence occurred for prompt intervention. The person in charge will issue a decision to ban the abuser from contacting with the children[6]. However, the effective duration of this decision is only 03 days so this only applies to urgent situations. In order to prevent the abuser from furthering the commission of domestic violence throughout the proceeding of the divorce case, the spouse who is directly looking after, caring for, nurturing and educating the children should seek the intervention and support from the Court.

[2] Article 57.1 of the Law on Marriage and Family 2014.

[4] Article 21.1 of the Law on Prevention of Domestic Violence 2007 and Article 129 of the Civil Proceedings Code 2015.

[6] Article 20 of the Law on Prevention of Domestic Violence 2007.

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