Question 59: If the custodial parent does not want to receive child support from the non-custodial parent since he or she believes that his or her own financial situation is sufficient for the children, what does the non-custodial parent have to do in order to compel the custodial parent to receive the child support and use it on caring, nurturing, and educating the children?

Under the applicable laws, after a divorce, the non-custodial parent must pay child support to his or her children according to the parent’s agreement or the Court’s decision. This regulation is set out to be suitable, reasonable and consistent with the ethics and cultural traditions of Vietnam, as even if the parents are divorced, the children still have rights and obligations towards their mother, their father[2], and vice versa. Even after the divorce, the parents still have obligations and rights towards their children under the law if the children cannot support themselves.

Usually, situations where the obligor avoids the fulfillment of his or her support responsibility are found in divorce cases. In these cases, the custodial parent will normally request the judgement enforcement agency to force the non-custodial parent to pay child support or otherwise to face an administrative penalty from the authorities, or even criminal prosecution. The contrary is not rare either, indeed it is not uncommon for the obligor to fulfill the conditions and to willingly pay for child support but for the custodial parent to refuse the payment (often for emotional reasons).

In the above case, the obligor can take the initiative action by submitting a request to the judgement enforcement agency for enforcement of the Court’s decision on child support[5]. After the judgement enforcement agency issues a decision of judgement enforcement, that person may voluntarily pay child support to the judgement enforcement agency. In practice, it occurs that the judgement enforcement agency may summon the custodial parent to hand in the payment. If that person does not go to the judgement enforcement agency to receive the money, the enforcer will coordinate with the local government authority to convince the custodial parent to receive the payment for the purpose of ensuring the best living conditions of the children. In case the custodial parent still does not want the payment, the enforcer will save that amount in the bank as non-term savings. If the custodial parent does not take that amount from the bank account after 05 years from the date of sending the notice for receipt of child support, the enforcer will contribute the amount to the State budget[6].

The authors’ point of view, in this case, is that the custodial parent should receive the child support to ensure the best living conditions and the best mental health development for the children. For the obligor, if the payment of child support is denied, submitting a request for enforcement to the judgement enforcement agency may not be necessary as we analysed above. Instead, the obligor may choose another way by transferring child support directly to the children or by appointing a different person to manage that money for the children[9]. This will be regarded as the personal properties of the children. Children who are 15 years old or older will have the right to make their own decisions on those properties in certain cases prescribed by the Civil Code[10] without the custodial parent’s interference.

[2] Article 39.1 of the Civil Code 2015.

[5] Article 7 of the Law on Civil Judgement Enforcement amended, supplemented by Article 1.5 of the Law 2014 on amendment and supplement to the Law on Civil Judgement Enforcement.

[6] Article 47.5, 126.2 of the Law Civil Judgement Enforcement 2008, amended, supplemented by Article 1.20 of the Law 2014 on amendment and supplement to the Law on Civil Judgement Enforcement, and Article 49 of the Decree No. 62/2015/ND-CP dated 18/07/2015 of the Government, detailing and setting out guideline for enforcement of a number of articles of the Law on Civil Judgement Enforcement.

[9] Article 76.3 of the Law on Marriage and Family 2014.

[10] Article 21.4 of the Civil Code 2015.

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