Question 52: Can the child request a change of custodial parent while he or she is living with the parent who was granted his or her the custody under the Court’s decision?

The Law on Marriage and Family stipulates that the Court can decide to change the custodial guardian when there is a request from one of the following individuals, agencies, organisations:

  • Parents;
  • Next of kin;
  • State agencies managing matters of family;
  • State agencies managing matters of children; or
  • Women’s Union.

Thereby, the applicable laws do not grant children the right to request for a change of custodial guardian after their parents’ divorce. Current laws stipulate three cases where the children are to be brought up by their parents, including minor children, children who have lost the civil act capacity, and children unable to work and having no property to support themselves[2]. For minor children or children who have lost their civil act capacity, the fact that these children are inadequate or incapable of establishing and exercising civil rights and obligations and the legal proceedings attached by themselves is why they cannot request the Court for a change in their custodial guardian. They may however do so through individuals, agencies, and organisations mentioned above. Moreover, in the process of resolving a divorce, the Court’s decision on who will have custody over the children is based on the desire of children who are 07 years old or older. The practical reason is that children, people suffering from mental illness, or people who cannot perceive and control their own behaviours, often change their minds and make arbitrary decisions. This will lead to a disturbance in the work and life of the parents after divorce, and put more pressure on the Court’s operation and the judgement enforcement agency, while not guaranteeing the principle of ensuring benefits in all aspects of children.

[2] Article 69.2 of the Law on Marriage and Family 2014.

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