Question 54: Does a third party have the right to request the Court in a divorce case for custody of the child on behalf of his or her parents if they are considered unfit to ensure the child’s health and education if granted custody? And why so?

In a divorce case, personal issues and properties can be said to be a matter of the private affairs of the spouses. Though, in reality they also have material obligations to a third party. However, for the issue of their children, this is no longer their sole problem, it may also widen the problem to the local community or even the whole society.

Under the Law on Marriage and Family, the spouses will agree by themselves on who will directly raise the children. If they cannot reach an agreement, the Court will decide on the account of all aspects of the children’s interest. Other individuals, agencies and organisations are only entitled to request for a change of custodial parent after the divorce[2]. The Law on Marriage and Family does not provide for a third party to acquire child custody in the process of a divorce case even if it is considered that the children’s health and education may be adversely affected by being given to either parent.

If a third party, for example, next of kin, the State management agencies on the family and children or the Women’s Union have grounds to prove that the father and mother have committed serious violations to their obligation to look after, care for, nurture and educate children, they are entitled to request the Court to restrict the rights of the parents over their children who are under 18 years old. However, the child custody will not automatically be assigned to the third party who filed the request to the Court, the children may be assigned to the guardian of the minor children following this order: oldest siblings; next siblings; grandparents; aunts, uncles[4].

[2] Article 84 of the Law on Marriage and Family 2014.

[4] Article 87.2 of the Law on Marriage and Family 2014, and Article 52 of the Civil Code 2015.

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