What evidence must be prepared if you want to win custody of a child when divorced?

When divorced, if the husband and wife cannot agree on the person who directly raises the child, the Court will decide based on the interests of the child in all aspects. Therefore, if you want to be assigned to directly raise your child, you need to prepare evidence that you have the right conditions to care, nurture and educate your child, and at the same time ensure stability in the child's life. So if you want to win custody of a child when divorced, what evidence do you need to prepare, how to prove the conditions for child custody to protect your rights and those of your children?

According to Clause 2, Article 81 of the Law on Marriage and Family 2014, if the parents cannot reach an agreement on the person who directly raises the child, the Court shall decide to assign the child to one party based on the child's interests in all aspects; if the child is full 07 years old or older, the Court must consider the child's wishes. Therefore, the preparation of evidence should focus on the actual care conditions and interests of the child, not only based on the income level or wishes of the parents.

1. What is the legal basis for deciding the person who directly raises the child?

According to Article 81 of the Law on Marriage and Family 2014, after divorce, parents still have the right and obligation to look after, care for, nurture and educate their children. If the person who directly raises the child cannot be agreed, the Court shall consider the interests of the child in all aspects to make a decision. The law does not stipulate that people with higher incomes, own houses or have more assets are automatically entitled to custody of their children.

In fact, the review may be related to the child's ability to ensure living, learning, health care, mental condition, direct care time, and living environment. The court may also consider the process of who is the primary caregiver of the child, the degree of attachment of the child to each party, and other specific circumstances that are relevant to the child's interests. These are issues that parents should prepare documents to prove, rather than just presenting them verbally.

For children aged full 07 years or older, their wishes must be considered, but it does not mean that the child's opinion automatically determines the result. The court still has to assess the interests of the child in all aspects on the basis of the facts and evidence of the case.

Particularly for children under 36 months old, Clause 3, Article 81 of the Law on Marriage and Family 2014 stipulates that the child is assigned to the mother to directly raise, unless the mother is not eligible to directly look after, care for, nurture and educate the child or the parents have other agreements in accordance with the interests of the child. Therefore, in the case of a dispute involving a child under 36 months of age, the evidence of the actual conditions of care still makes sense when considering statutory exceptions.

2. Evidence to be prepared to win custody of children upon divorce

2.1. Evidence of income and economic conditions

Parents should prepare documents proving their work, income, and ability to cover their children's essential expenses. Documentation may include employment contracts, income confirmations, payroll statements, salary statements, business operations, or other legal documents that reflect the actual source of income. If there is an irregular source of income, it is necessary to prepare appropriate documents to explain the nature and stability of that income source.

In addition to income, it is possible to provide documents of residence and living conditions such as a lease agreement, housing documents, or documents showing the child's actual place of residence. This evidence helps clarify the child's ability to meet the needs of living, learning and rest. However, it should not be assumed that only proving that having a high income or owning a house is certain to be assigned custody of the child, because the Court must consider the child's interests as a whole.

2.2. Chứng cứ về quá trình trực tiếp chăm sóc, nuôi dưỡng con

This is an important group of evidence to clarify who has been directly taking care of children in daily life. It is possible to prepare documents about transporting children to school, communicating with teachers, participating in parent meetings, taking children for medical examination and treatment, caring for children when they are sick, or performing other regular tasks related to raising and educating children.

Documents that can be used on a case-by-case basis include information exchanged with the school, medical records, bills for learning and care expenses, and photos or messages reflecting the child's care. If there is a person who directly witnesses the care process, the testimony of the witness can also be considered when provided in accordance with the procedural regulations.

It is important to note that the evidence should reflect the actual care process, not just the images or activities performed shortly before the divorce. Demonstrating regular care, responsibility, and the ability to maintain stable care can help the Court more fully assess each party's condition.

2.3. Evidence of time and ability to directly take care of children

A person who has a good income but often travels long distances, works long shifts, or does not have time to directly care for the child may need to clearly explain the parenting plan if they are given custody. Therefore, in addition to work papers, it is recommended to prepare documents and information showing working hours, workplaces, travel distances, and childcare plans in daily activities.

If support is expected from grandparents or relatives, it is necessary to clarify the actual support and how to coordinate care. Family support may be a relevant circumstance, but does not completely replace the parent's direct responsibility for the child. Documentation should help show a plan of care that is feasible, stable, and appropriate for the child's age and needs.

2.4. Evidence of the child's living, learning and health environment

A stable living environment is also an issue that needs to be clarified in child custody disputes. Parents can provide information about where they live, school, travel conditions, who regularly lives with the child, and the child's ability to maintain activities after the parent's divorce. If your child is learning stably or needs special medical care, documentation from the school, medical facility, or relevant documentation can help clarify your child's specific needs.

In case your child has a medical condition that needs to be monitored, needs special support, or is in an important learning stage, it is recommended to prepare medical records, treatment plans, or relevant academic information. The purpose is to prove that the proposed parenting plan can meet the actual needs of the child, not to use the child's health or academic status to unjustifiably disadvantage the other party.

2.5. Evidence of acts affecting the safety and interests of children

If the other party believes that the other party has committed acts of violence, neglects the child, regularly uses stimulants that affect the care, threatens or creates an unsafe environment for the child, the requester needs to collect legal evidence related to each specific incident. Documents may include minutes of competent authorities, medical records, documents from the school, messages, images, audio or video recording data collected and provided in accordance with the law.

Don't just make general accusations without verifiable information. If an incident occurs, it is necessary to record the time, place, development, witnesses and relevant documents. The proof should be aimed at clarifying how the behavior affects the child's safety, health, psychology or developmental conditions. Conflicts between parents do not automatically mean that one party is not eligible to raise the child; The problem must be assessed on the basis of evidence and the interests of the child.

2.6. Evidence of the child's aspirations

If the child is full 07 years old or older, the Court must consider the child's wishes when deciding on the person who directly raises the child according to Clause 2, Article 81 of the Law on Marriage and Family 2014. Parents can present to the Court their children's wishes and related circumstances, but they should not pressure themselves, guide their children to give testimony of their own accord or create confrontation between the child and the other party.

The collection and assessment of children's aspirations should be carried out in an appropriate way, ensuring the interests of children. The child's wishes are a factor to consider, not the only basis for deciding custody. Therefore, parents still need to prepare other evidence about the child's care, nurturing and living environment.

3. Can messages, images, and audio recordings be used as evidence to gain custody of the child?

Messages, emails, images, videos or electronic data may have evidentiary value if they relate to the issue to be solved and meet the legal requirement for evidence. Articles 93, 94 and 95 of the 2015 Civil Procedure Code stipulate evidence, sources of evidence and the identification of evidence; in which, audible, visible documents and electronic data messages need to meet the corresponding conditions to be considered according to regulations.

Therefore, when using electronic messages or data, it is recommended to retain the complete content, information about the sender, the time, origin, and context of the exchange. Don't just cut together a few sentences or discrete images that take out context. For audio and video recordings, it is necessary to pay attention to the requirements for documents explaining the origin or documents related to audio and video recordings as prescribed in Article 95 of the 2015 Civil Procedure Code.

The collection of evidence must also comply with the law, respect the legitimate rights and interests of others. Do not arbitrarily hack into accounts, hijack devices, or use illegal tricks to obtain information. If it is not possible to collect documents being kept by other agencies, organizations or individuals, the involved parties may request the Court to assist in collecting them when they meet the conditions and procedures under the Civil Procedure Code.

4. What to do if there is not enough evidence or the other party does not cooperate?

Not all evidence is held directly by either parent. In some cases, documents related to study, medical examination, residence or other matters related to the child may be managed by another agency, organization or individual. At that time, the requester should actively request to provide documents as prescribed and save information showing that he has collected but failed to achieve results.

According to the provisions of the Civil Procedure Code 2015 on the obligation to prove and collect evidence, the involved parties request the Court to protect their legitimate rights and interests to provide evidence to support that request. In case it is impossible to collect evidence by themselves, the involved parties may request the Court to collect it according to the statutory conditions and procedures. The proposal should clearly state the issues to be proved, the documents to be collected, the reasons for not being able to collect them by themselves, and information about the agencies, organizations or individuals that are keeping the documents, if known.

When preparing the dossier, it is recommended to arrange the evidence according to each issue to be proved, clearly state the time and origin of the document, and explain the relationship between the document and the conditions for raising children. This preparation makes the presentation to the Court clearer and limits the submission of many documents but does not highlight the important details of the case.

5. The role of lawyers in child custody disputes in divorce

Custody disputes are not only about proving which party has better economic conditions, but also about the actual care process, living environment, developmental needs, and long-term interests of the child. The lawyer can assist in assessing the circumstances of the case according to Article 81 of the Law on Marriage and Family 2014, identifying the issues that need to be proven and reviewing the evidence that the client has. From there, customers can focus on collecting documents that are really related to the ability to take care of their children, rather than just making subjective judgments or unfounded accusations.

The lawyer can also assist in building a system of evidence for each group such as economic conditions, time of direct care, place of residence, the child's education and health care, as well as circumstances that may affect the child's safety. For electronic messages, images, videos, or documents, lawyers can review the origin, retention and conditions of use to limit the risk of evidence being disputed about its authenticity or method of collection. If important documents are held by a third party, the lawyer can guide the implementation of the request for provision or request the Court to assist in collecting them in accordance with the legal process.

In cases where each party has custody of the child and the dispute focuses on who is more suitable, the attorney can help the client present a specific care plan, including where to live, education, living time, health care, and how to maintain the stability of the child after the divorce. If there is evidence of behavior that affects the child, the lawyer can assist in assessing the relevance of each incident, selecting appropriate documents and presenting the problem in the direction of protecting the child's rights, avoiding turning the case into an attack on personal life or unnecessary arguments between parents.

In addition, the lawyer can assist in preparing the presentation of opinions, letters and documents to be submitted to the Court; guiding clients to exercise their procedural rights and obligations; and at the same time participate in protecting legitimate rights and interests according to the scope of assigned work. If the case has special elements such as a young child, a child in need of medical care, parents living in different localities, or evidence is being managed by the other party, an early assessment of these issues helps determine a more appropriate way to handle it.

However, there is no single type of evidence that guarantees that a party will be given custody of the child. The result depends on the entire circumstances of the case, the evidentiary value of the document and the assessment of the child's interests in all aspects in accordance with the law. The role of a lawyer is to assist clients in preparing well-founded documents, clearly presenting and protecting legal rights, but cannot guarantee the outcome of the Court's settlement.

Conclusion: To win custody of the child upon divorce, the parent should prepare evidence of economic conditions, direct care, time spent with the child, place of residence, education, health and other circumstances related to the child's safety. The preparation needs to adhere to the criteria of the child's rights in all aspects according to Article 81 of the Law on Marriage and Family 2014. Evidence must be of clear origin, lawfully collected, and directly related to the issue to be proved to assist the Court in assessing the case comprehensively.

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(Written by: Doan Ngoc Khanh; Date written: 12/10/2026)

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