Winning custody: Determinants from a lawyer's perspective

In divorce cases, child custody disputes are often the most concerning and difficult for parents to agree on. Many people think that as long as they have a higher income, have their own house or be a mother, they will definitely be handed over by the Court. However, the law does not define child custody based on only one individual factor but focuses on the interests of the child in all aspects. So what are the factors that are really meaningful when the Court considers the person who directly raises the child and the person who wants to win custody of the child, what preparation should be made to protect his or her rights?

1. How is child custody after divorce determined?

1.1. Parents can agree on 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. In case the parents agree on the person who directly raises the child, the Court shall consider such agreement on the basis of ensuring the interests of the child.

Therefore, not every divorce case is required to dispute child custody. If the parents can agree on the person who directly raises them, the level of alimony and the guarantee of the visitation rights of the other person, the settlement can be more convenient.

However, if both parents request to directly raise the child, the Court must consider the actual conditions of each party and make a decision based on the interests of the child in all aspects.

1.2. The Court prioritizes the interests of the child in all aspects

When the parents cannot reach an agreement, Clause 2, Article 81 of the Law on Marriage and Family 2014 stipulates that the Court decides to assign the child to a party to directly raise it based on the interests of the child in all aspects. For a child from full 07 years old or older, the Court must consider the child's wishes.

It is worth noting that from July 1, 2024, Article 6 of Resolution 01/2024/NQ-HDTP of the Council of Judges of the Supreme People's Court has provided more specific guidance on the criteria for assessing "children's interests in all aspects". Therefore, when disputing custody of a child, the proof should not focus solely on income or assets, but should demonstrate the overall ability to care for the child, the living environment, the attachment, and the stability that the parent can bring to the child.

1.3. Is the child under 36 months old given priority to the mother?

According to Clause 3, Article 81 of the Law on Marriage and Family 2014, a child under 36 months old 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.

Thus, this regulation does not mean that for a child under 36 months old, the mother is automatically entitled to custody of the child in all cases. Resolution 01/2024/NQ-HDTP has guided cases in which mothers are not eligible, including cases of critical or serious illnesses who are unable to take care of themselves or directly take care of their children; having a monthly income of less than half of the regional minimum wage at their place of residence and having no other assets to take care of and raise their children; or there is no minimum time condition to directly look after, care for, nurture and educate their children.

Therefore, when disputeing custody of a child under 36 months old, it is still important to assess the actual condition of the mother.

2. Factors determining child custody under current law

2.1. Conditions and ability to directly take care of children

One of the important factors is the actual ability of the parent to look after, care for, nurture and educate the child. According to Article 6 of Resolution 01/2024/NQ-HDTP, the Court must also assess the ability to protect children from abuse and exploitation.

This shows that people with higher incomes are unlikely to have been given custody of their children if they do not have direct care conditions or an unsuitable living environment. On the contrary, people with not too high incomes can still be assigned to raise their children if they can prove their ability to take care of them sably and meet their children's needs.

The important issue is not only "how much money" but also who is really able to spend time, care, education and ensure the safety of children in daily life.

2.2. Stability of living environment and education

The Court also considers who to hand over the child to can ensure stability and limit disturbances in the child's living and educational environment. This is one of the criteria directly specified in Article 6 of Resolution 01/2024/NQ-HDTP.

For example, if one party is directly taking care of the child stably, the child is studying in a suitable environment and has attachment to the current residence, then a complete change of living environment may be considered when the Court assesses the child's rights.

Therefore, when wanting to win custody of the child, the parent needs to prove not only financial ability but also show that the living, learning and living environment that he or she can ensure for the child is suitable and stable.

2.3. Attachment and care of parents to their children

According to the guidance in Resolution 01/2024/NQ-HDTP, the Court considers the attachment and closeness of the child to the parent and the level of care of the parent for the child.

In fact, this factor can be expressed through the process of who regularly takes care of the child, takes the child to school, takes care of the child when he is sick, coordinates with the school, participates in the child's activities and meets the needs of daily life.

Therefore, if a party only focuses on proving that it has assets or high income but cannot prove the actual process of taking care of children, financial advantage is unlikely to determine the outcome of the dispute.

2.4. Ability to maintain the child's relationship with the other parent

The child's rights not only lie in who to live with, but also the right to maintain a relationship with a parent who does not directly raise the child. This is also a criterion required by Resolution 01/2024/NQ-HDTP to be considered.

After the divorce, the person who does not directly raise the child still has the right and obligation to visit the child and no one may obstruct the exercise of this right according to Article 82 of the Law on Marriage and Family 2014. At the same time, the person who does not directly raise the child is obliged to support the child in accordance with the law.

Therefore, if one party prevents the child from meeting and maintaining a relationship with the other parent, this may be a disadvantageous issue when the Court comprehensively assesses the child's interests.

2.5. Aspirations of children aged full 07 years or older

For children aged full 07 years or older, the Court must consider the child's wishes. However, it is necessary to understand correctly that the child's aspirations do not mean that the child chooses someone is definitely entrusted to that person to raise.

Resolution 01/2024/NQ-HDTP stipulates that the collection of children's opinions must be friendly, suitable for the child's psychology, age and maturity; do not consult in front of parents to avoid creating psychological pressure and do not force, pressure or stress children.

In addition to the desire to live with the father or mother, the Court also considers the child's desire to live with the brother or sister, if any, to ensure the child's psychological and emotional stability.

3. Misconceptions when disputing custody

3.1. If you have a higher income, you will definitely be able to raise children

This is one of the popular notions but not entirely true. Financial ability is a factor to consider, but it is not the only factor that determines who directly raises the child.

If one party has a very high income but travels frequently for work, does not have time to directly take care of the child, or cannot prove a suitable living environment, then the financial advantage may not be enough to decide custody of the child.

On the contrary, people with moderate incomes but stable jobs, time to take care of their children, a suitable living environment and good attachment to their children can still be considered by the Court to directly raise their children.

3.2. As a mother, you can definitely raise your child

The law has provisions that give priority to mothers who directly raise children under 36 months old under statutory conditions, but there is no general provision that in all cases of divorce, the mother is automatically entitled to custody of the child. For children aged full 36 months or older, the Court must consider the interests of the child in all aspects based on the specific conditions of the father and mother.

Therefore, the mother who wants to win custody of the child still needs to prepare evidence to prove her actual conditions and the ability to ensure the child's rights.

3.3. If a child from full 07 years old wants to live with, that person will definitely be raised

The child's aspiration from full 07 years old is an important factor but not the only basis. The court still has to assess the child's overall conditions of care, attachment, living environment, education, stability and other rights.

Parents should also not influence, force or guide their children to make choices that are beneficial to them. Putting pressure on children can have a negative impact on the child's psychology and is not in accordance with the requirements for consultation guided in Resolution 01/2024/NQ-HDTP.

4. What do I need to prepare when I want to win custody of my child?

4.1. Proving conditions for child care and nurturing

People who want to directly raise their children need to prepare documents that can prove their actual conditions such as work, income, place of residence, time spent with their children and the process of directly caring for their children.

It is important that these documents reflect the actual ability to care, nurture and educate the child, not just prove a high level of income.

4.2. Demonstrate the process of direct childcare

In many cases, who is directly taking care of the child for a long time can become a matter that needs to be clarified. Documents related to the child's learning, health care, daily activities can help clarify the level of care and attachment of the parent to the child.

However, the collection and use of evidence should comply with the provisions of the procedural law. You should not use methods to infringe on the private life, honor or legitimate interests of the other person because you want to win custody of the child.

4.3. Prove that the living environment is suitable for your child

A stable place to live, suitable learning conditions and a safe living environment are issues that should be considered when assessing the child's rights.

If the person who wants to raise the child plans to change the place of residence, change school or take the child to a completely new environment, it is also necessary to consider the level of disturbance for the child. This is a particularly noteworthy issue because Resolution 01/2024/NQ-HDTP requires consideration of the factor of stability and limitation of disturbances in the living environment. education of children.

4.4. Do not turn child custody disputes into disputes between parents

The goal of settling child custody is not to determine the "winner" or "loser" in the husband and wife relationship, but to determine the plan to best ensure the interests of the child.

Therefore, constantly speaking ill of the other person in front of the child, preventing the child from meeting the parent or pressuring the child to choose a side can make the dispute more stressful and directly affect the child's psychology.

5. The role of lawyers in child custody disputes

5.1. Properly assess the legal advantages of each party

In custody disputes, lawyers don't just rely on information such as "I have a house," "I have a high income," or "I'm your mother." It is important to place the entire family's circumstances within the criteria that the law requires the Court to consider.

An attorney can review the child's age, current care status, time conditions, job, income, residence, learning environment, attachment between the child and the parents, and other issues that may affect the child's rights. From there, the lawyer helps the client identify the strengths and weaknesses in the custody request and develop an appropriate plan instead of relying only on speculation or oral experience.

5.2. Support for building evidence systems

One of the most important issues in child custody disputes is evidence. An attorney can guide the client to determine what documentation is needed to prove the conditions of care, the ability to nurture, the living environment, and the direct process of caring for the child.

In case one party believes that the other is not eligible for child custody, the lawyer also needs to assess the legality and evidentiary value of the document before putting it in the file. Not all information collected can be used at will in the process of resolving a case.

5.3. Protecting the interests of children during the settlement process

Lawyers also have a role in helping clients approach disputes in the direction of protecting their children's long-term interests. In case the child is full 07 years old or older, the collection of the child's opinion must be carried out in accordance with the psychology, age and level of maturity, without pressuring or coercing the child.

Therefore, a lawyer can advise parents on appropriate behavior, limit influence on children and avoid behaviors that may put children in a situation where they have to choose between parents and fathers.

5.4. Participate in legal proceedings and protect the legitimate interests of clients

When a child custody dispute is brought to the Court, lawyers can assist clients in preparing documents, determining claims, presenting views, providing evidence, and participating in protecting legitimate rights and interests during the proceedings.

In particular, for cases where there are many children in common, children of different ages, parents with similar economic conditions or on the one hand there are problems that affect the ability to directly take care of the child, the development of legal arguments needs to be carried out on a case-by-case basis. Lawyers can help analyze each element instead of applying a common formula to every case.

5.5. Support for settlement after the decision on the person who directly raises the child

The determination of the person who directly raises the child does not terminate the rights and obligations of the other person towards the child. After the divorce, the person who does not directly raise the child still has the right and obligation to visit and take care of the child in accordance with the law; at the same time, they must perform the support obligation if they are required to provide alimony.

In case the actual conditions change, the law also has a mechanism to request the change of the person who directly raises the child according to the provisions of Article 84 of the Law on Marriage and Family. Therefore, lawyers can continue to support when disputes arise about visitation, alimony or request to change the person who directly raises the child.

Conclusion

Winning custody of a child is not just about proving who has better economic conditions, but about proving who is better able to ensure the interests of the child in all aspects in a particular situation. When settling disputes, the Court must consider the overall factors according to Article 81 of the Law on Marriage and Family 2014 and the guidance in Resolution 01/2024/NQ-HDTP. Therefore, it is important to prepare documents, evidences and plans to protect interests from the beginning, especially for cases where both parents request to directly raise the child.

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(Written by: Doan Ngoc Khanh; Date written: 06/8/2026)

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