When divorced, the custody right of children after divorce is one of the top concerns of couples, especially for children under 36 months old. Pursuant to regulations, the mother will be given priority for the custody of under-36-month-old children. However, in some cases, the father still has custody of children under 36 months of age. So what are those cases? Let’s find out right here with PL & Partners Law Firm.
Article 81.2 and 81.3 of the Law on Marriage and Family 2014 stipulates:
“2. Husband and wife agree on custody, the obligations and rights of each party after the divorce towards the children; in case no agreement can be reached, the Court shall decide to grant custody of the children to one party based on the children‘s interests in all aspects; if the children are from 07 years of age or older, the children‘s wishes must be considered.
3. The mother shall be awarded custody of children under 36 months of age unless the mother is ineligible to directly look after, care for, nurture, and educate the children or the parents have other agreements in accordance with their children’s interests.”
Accordingly, it can be seen that for children under 36 months of age, the mother will be given priority over the father in child custody right, because this is the period when the children desperately need the mother’s caring hand. However, to ensure all aspects of the children’s interests, the law still considers granting custody of children under 36 months of age to the father in the following cases:
First Case: Mutual agreement.
The law still respects and recognizes the agreement of husband and wife upon divorce, which includes the agreement on custody. Therefore, when both parties agree that the father will directly raise children under 36 months of age, the law shall respect that agreement and the father shall have custody of the children. This case is common among couples who divorce in peace, they will decide for themselves who is the one to deliver the best life for their children.
Second Case: There are sufficient proofs that the mother is not eligible to directly raise the children and the father’s ability to custody.
If an agreement cannot be reached, the father will still be considered by the Court to award custody right of the children if there are sufficient grounds to prove that the mother is not eligible to directly look after, care for, nurture, and educate the child, but he is capable of raising children.
Usually, the Court determines that the mother doesn’t have enough conditions to directly look after, care for, raise, and educate her children based on the following factors:
- Material conditions: the mother’s income is unstable, she is unable to meet the children’s essential living needs; she is of no fixed abode, her address and their living environment are unhealthy, and not convenient for children to travel and study; children are not created conditions for learning and entertainment; she is raising, taking care of someone else other than the children, etc.
- Mental conditions: the mother has no time to take care of the children and has no one to help her; she has acts of violence; the mother’s family is too complicated, living together may adversely affect the children’s mental health; etc
In addition, the father must also prove to the Court that he is capable of raising his children, and can ensure all aspects of the children’s interests better than the mother, such as having a stable income, and healthy living environment, spending time for children, having fixed abode, etc.
Thus, after a divorce, the father still has custody of children under 36 months of age in case he can reach an agreement with the mother or the mother herself is not qualified enough to look after, care for, raise and educate the child than the father.
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