RIGHTS AND OBLIGATIONS OF PARENTS TOWARD THEIR CHILDREN AFTER DIVORCE
When resolving a divorce, the Court will usually address the child custody issue concurrently with the divorce of the husband and wife. After a competent Court issues a decision on the divorce between the husband and wife, the personal rights and obligations between husband and wife also certainly terminate. However, divorce does not terminate the personal relationship between father, mother and child. After divorce, parents still have the rights and obligations to look after, care for, raise, and educate their minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves according to the law. In this article, TNTP will analyze the rights and obligations of parents towards their children after divorce.
1. The responsibility of caring for, nurturing, and educating the child after divorce
The Court will decide who directly raises the child and determine the obligations and rights of each party toward the child in the event that the husband and wife cannot reach an agreement in resolving the divorce request. The court decides to entrust the child to either the wife or husband for raising on the basis of ensuring the child’s rights and interests in all aspects. This is because, when the marital relationship ends, the rights and obligations of parents towards their children must still be ensured.
Article 81 of the 2014 Law on Marriage and Family provides detailed regulations regarding the looking after, caring for, raising and educating of children after divorce. Accordingly, after divorce, parents still have rights and obligations to look after, care for, raise and educate minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves in accordance with this Law, the Civil Code and other relevant laws.
Besides that, spouses are legally allowed to make a custody agreement. In some cases, the spouses cannot agree. The Court will determine who has custody of the child based on the children’s best interest; If children are seven years old or older, the children’s aspirations must be considered.
Additionally, spouses are legally allowed to freely negotiate on who will directly raise the child, and the obligations and rights of each party after divorce regarding the child. In cases where an agreement cannot be reached, the Court shall appoint either of them to directly raise the children, taking into account the children’s benefits in all aspects. If a child is full 7 years or older, his/ her desire shall be considered.
Note: A child under 36 months of age shall be directly raised by the mother, unless the mother cannot afford to directly look after, care for, raise and educate the child or otherwise agreed by the parents in the interests of the child.
2. Rights and obligations of parents who directly raise children after divorce
Determining who will directly raise the children will not exempt the other spouse from other obligations towards the children. Article 83 of the 2014 Law on Marriage and Family stipulates in detail the obligations and rights of the parent directly raising children toward the person not directly raise children after divorce.
Accordingly, the parent directly raising a child has the right to request the person not directly raising this child to fulfill the obligations prescribed in Article 82 of this Law and request this person and family members to respect his/her right to raise the child.
In addition, the parent directly raising children and family members have the obligation to create conditions and may not obstruct the person who not directly raising the child from visiting, caring for, raising and educating the child.
3. Obligations and rights of the parent who does not directly raise children after divorce
Article 82 of the 2014 Law on Marriage and Family regulates the rights and obligations of parents who do not directly raise children after divorce. Accordingly, parents who do not directly raise the child have the obligation to respect the child’s right to live with the person who directly raises the child. In addition, to ensure that children have adequate living and development conditions, parents who do not directly raise the children also have the obligation to visit and provide support for the child.
After divorce, family life is no longer complete and cannot be repaired. Therefore, most parents understand the emotional needs of their children and strive to create conditions for mutual support in nurturing and caring for their offspring. However, there are also cases where parents have a fierce conflict with each other, so they take advantage of his/her visit to and care for the child to obstruct or adversely affect the looking after, care for, raising and education of this child.
Legislators foresaw this issue early on, hence provisions limiting visitation rights have been recorded to safeguard the child’s right to care and education after the parents’ divorce. When there is evidence indicating that the person not directly raising the child has abused visitation, obstructed or negatively affected the child’s upbringing, the person directly raising the child has the right to request the Court to to restrict the visitation rights of that individual.
Accordingly, the Court can issue a decision disallowing a parent to look after, care for and educate a child or manage the child’s own property or act as the child’s representative at law for between 1 and 5 years when there is a basis indicating that the parents fall into specific cases, as follows:
– He/she is convicted of one of the crimes of intentionally infringing upon the life, health, dignity or honor of this child or commits acts of seriously breaching the obligations to look after, care for, raise and educate children;
– He/she disperses property of the child;
– He/she leads a depraved life;
– He/she incites or forces the child to act against law or social ethics.
4. Change the person directly raising the child after divorce
Article 84 of the 2014 Law on Marriage and Family specifically regulates cases of changing the person directly raising children after divorce. Accordingly, when there are grounds to show that the parent who is directly raising the child is no longer has the conditions to look after, care for, raise, and educate the child, or when the parents has an agreement to change the person directly raising the child for the betterment of the child’s interests, the Court can issue a decision to change the person directly raising the child in case of request from the father, mother, next of kin, state management agency on family and children or the Women’s Union.
When seeing that both parents fail to have sufficient conditions to directly raise a child, a Court shall decide to assign this child to a guardian in accordance with the Civil Code.
Note: In case where a child is fully 7 years old or older and desires to be raised and live with one parent, the Court must consider changing the person directly raising the child to align with the child’s wishes.
Above is our legal sharing on the rights and obligations of parents toward their children after divorce. Hope this article is helpful to you.
Sincerely,
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