Case Law No. 54/2022/AL regarding the determination of custody for a child under 36 months old when the mother does not directly care for, nurture, or educate the child

Case Law No. 54/2022/AL

Regarding the determination of custody for a child under 36 months old when the mother does not directly care for, nurture, or educate the child

Approved by the Judicial Council of the Supreme People’s Court on September 7^th, 2022, and published according to Decision No. 323/QD-CA on October 14^th, 2022, by the Chief Justice of the Supreme People’s Court.

Source of the Case Law:

The Cassation Decision No. 01/2019/HNGD-GDT dated February 27^th, 2019, by the High People’s Court in Da Nang regarding the marriage and family case “Divorce, child custody dispute” in Dak Lak Province between the plaintiff, Ms. Pham Thi Kieu K, and the defendant, Mr. Nguyen Huu P.

Content Location in the Case Law:

Paragraph 3 of the “Court’s Opinion” section.

Summary of the Case Law:

– Situation of the Case Law:

In a marriage and family case involving a custody dispute over a child under 36 months old, the mother abandoned the child at a very young age and did not show any interest in caring for, nurturing, or educating the child. The child was cared for and nurtured by the father in a favorable environment and had become accustomed to that living condition and environment.

– Legal Solution:

In this case, the Court must continue to grant custody of the child under 36 months old to the father for direct care and upbringing.

Relevant Legal Provisions:

Clauses 2 and 3 of Article 81 of the 2014 Law on Marriage and Family.

Keywords:

“Custody of a child under 36 months old”; “Divorce”; “Child custody dispute”.

CASE DETAILS

Ms. Pham Thi Kieu K and Mr. Nguyen Huu P married voluntarily and registered their marriage on July 27^th, 2016, at the People’s Committee of E Commune, K District, Dak Lak Province. However, after a period of marriage, conflicts arose due to personality incompatibilities and frequent disagreements in life, leading Ms. K to return to her parents’ home around March 2017. Given the severe marital discord, the impossibility of prolonging the shared life, and the failure to achieve the marriage’s purpose, Ms. Pham Thi Kieu K and Mr. Nguyen Huu P mutually consented to divorce.

– Regarding the common child:

The couple acknowledges having one common child, Nguyen Dac T, born on November 30^th, 2016. When T was four months old, Ms. K left to live with her parents, leaving T in the care of Mr. P. Both parties now request custody of the common child, with Ms. K asking Mr. P for child support, while Mr. P does not request child support from Ms. K.

– Regarding common property:

The couple acknowledges having no common property and no common debts, hence do not request the Court to resolve these issues.

In the First Instance Marriage and Family Law Judgment No. 02/2018/HNGD-ST dated March 5^th, 2018, the People’s Court of Krong Pak District, Dak Lak Province:

Pursuant to Clause 1 of Article 28, Point a Clause 1 of Article 35, Point a Clause 1 of Article 39, Article 147, Article 212, and Article 213 of the 2015 Civil Procedure Code; Articles 51, 55, 58, 81, 82, 83, 110, 116, and 117 of the 2014 Law on Marriage and Family; and Clause 5 of Article 27 of Resolution 326/2016/UBTVQH14 dated December 30^th, 2016, of the National Assembly Standing Committee on court fee rates, exemptions, reductions, payments, management, and use, decided:

– Regarding marital relationship:

Recognize the mutual consent for divorce between Ms. Pham Thi Kieu K and Mr. Nguyen Huu P.

– Regarding the common child:

Assign custody of Nguyen Dac T, born on November 30, 2016, to Mr. Nguyen Huu P for direct care, upbringing, and education until T reaches 18 years old. Ms. Pham Thi Kieu K retains the right to visit and care for the child without any obstruction.

– Regarding child support:

Acknowledge Ms. Pham Thi Kieu K’s voluntary agreement to provide monthly child support of VND 1,000,000 for Nguyen Dac T until he turns 18.

– Regarding common property and debts:

As the parties did not request resolution on these matters, the Court did not address them.

Additionally, the first instance judgment included provisions on court fees, enforcement obligations, and notification of appeal rights per legal regulations.

– On March 8^th, 2018, Ms. Pham Thi Kieu K appealed, seeking custody of the common child and not requesting child support from Mr. Nguyen Huu P.

The appellate court conducted a hearing in the absence of Mr. Nguyen Huu P, as he was duly summoned twice but failed to appear without reason. During the appellate hearing, Ms. K maintained her initial claims and appeal content.

In the Appellate Marriage and Family Law Judgment No. 11/2018/HNGD-PT dated June 7, 2018, the People’s Court of Dak Lak Province decided:

To accept Ms. Pham Thi Kieu K’s appeal; amend the First Instance Family Law Judgment No. 02/2018/HNGD-ST dated March 5^th, 2018, of the People’s Court of Krong Pak District.

Pursuant to Clause 1 of Article 28, Point a of Clause 1 of Article 35, Point a of Clause 1 of Article 39, Clause 4 of Article 147, Article 212, and Article 213 of the 2015 Civil Procedure Code; Articles 51, 55, 58, 81, 82, 83, 110, 116, and 117 of the 2014 Law on Marriage and Family; and Point a of Clause 5 of Article 27 of Resolution 326/2016/UBTVQH14 dated December 30^th, 2016, of the National Assembly Standing Committee on court fee rates, exemptions, reductions, payments, management, and use, the court decided:

– Regarding the marital relationship: Acknowledging the mutual consent for divorce between Ms. Pham Thi Kieu K and Mr. Nguyen Huu P.

– Regarding the common child: Assigning custody of Nguyen Dac T, born on November 30^th, 2016, to Ms. Pham Thi Kieu K for direct care, upbringing, and education until T reaches 18 years old. Mr. Nguyen Huu P retains the right to visit and care for the child without any obstruction.

– Regarding child support: Ms. Pham Thi Kieu K does not require Mr. Nguyen Huu P to provide child support.

– Regarding common property and debts: As the parties did not request resolution on these matters, the Court did not address them.

On July 6^th, 2018, Mr. Nguyen Huu P submitted a “Petition for Cassation Review,” asserting that the appellate court did not serve the notice of the appellate hearing or the appellate judgment. He only became aware of the change in custody arrangements through the enforcement decision, which he claimed was a procedural violation. He disagreed with the appellate court’s decision to grant custody to Ms. K and requested to retain custody as per the first instance judgment.

In Cassation Review Decision No. 114/2018/QDKNGDT-VKS-DS dated October 10^th, 2018, the Chief Prosecutor of the High People’s Procuracy in Da Nang requested the Judicial Council of the High People’s Court in Da Nang to conduct a cassation review, annul the Appellate Marriage and Family Law Judgment No. 11/2018/HNGD-PT dated June 7,th 2018, of the People’s Court of Dak Lak Province, and remand the case for a new appellate hearing in accordance with the law.

During the cassation review hearing, the representative of the High People’s Procuracy in Da Nang amended the petition’s content, requesting the Judicial Council to annul the appellate marriage and family law judgment and uphold the first instance marriage and family law judgment.

COURT’S OPINION:

[1] Regarding procedural matters: Concerning the scope of appellate review: After the first instance trial, Ms. Pham Thi Kieu K only appealed the “common child” part of the First Instance Marriage Family Law Judgment. The appellate judgment’s reasoning also only considered the “common child” part, but the decision part of the appellate judgment addressed the “marital relationship, common property, and common debts,” which is inconsistent with Article 293 of the 2015 Civil Procedure Code.

[2] Regarding the presence of the parties: Based on the case file, it is noted that before the hearing, the appellate court had served the notices and decisions on the appellate hearing to Mr. Nguyen Huu P via postal service (as evidenced by delivery receipts – documents No. 83, 84, 86).

Mr. Nguyen Huu P did not receive these procedural documents due to a mistake by the K District post office (in Document No. 23/BDH.KRP dated September 25^th, 2018, the post office confirmed that postman Nguyen Thanh T1 mistakenly delivered the documents to another person with the same name P in H Hamlet – document No. 102). Therefore, the appellate court’s decision to proceed with the hearing in the absence of Mr. Nguyen Huu P was in accordance with Point b of Clause 2 of Article 227 and Clause 3 of Article 296 of the Civil Procedure Code.

[3] Regarding the substance of the case:

Regarding child custody: During the case resolution, both Ms. Pham Thi Kieu K and Mr. Nguyen Huu P expressed their wish to have custody of Nguyen Dac T, born on November 30^th, 2016. Clause 3 of Article 81 of the 2014 Law on Marriage and Family stipulates: “A child under 36 months old shall be given to the mother for direct care, except where the mother is not capable of directly caring for, nurturing, and educating the child or if the parents have another agreement in the best interests of the child.”

In this case, due to marital conflicts, Ms. Pham Thi Kieu K left for her parental home when T was only four months old, leaving T in Mr. Nguyen Huu P’s care. According to the Verification Records dated January 23^rd, 2018 (documents No. 19, 20, 24), the village management board and women’s union of H Hamlet, E Commune, K District confirmed: “Mr. Nguyen Huu P is raising and caring for Nguyen Dac T very well. Mr. P is employed at N Trading and Service Co., Ltd., with a stable income, fully capable of raising T.”

Although Clause 3 of Article 81 of the 2014 Law on Marriage and Family stipulates that “A child under 36 months old shall be given to the mother for direct care…”, Ms. K has not cared for T since he was four months old. Currently, T is accustomed to the living conditions and environment with Mr. P, who provides the best care and nurturing; transferring custody to Ms. K would cause disruption and negatively affect T’s normal development.

During the case resolution, the first instance court comprehensively considered the circumstances and justifiably continued to grant custody of T to Mr. P. The appellate court’s decision to transfer custody to Ms. K was inappropriate and did not fully consider T’s legitimate rights and interests in all aspects.

[4] Regarding child support: During the first instance trial, Mr. Nguyen Huu P did not request child support, while Ms. Pham Thi Kieu K stated: “If the court grants custody to Mr. P, I voluntarily provide VND 1,000,000/month for child support.” Ms. K’s income is VND 6,000,000/month, making her voluntary support amount reasonable.

[5] Regarding the custody of the common child after divorce: If Ms. Pham Thi Kieu K has sufficient grounds to believe that Mr. Nguyen Huu P is no longer capable of raising the common child or is mistreating the child, she has the right to file a lawsuit requesting the court to change the custodian, as well as to modify the amount and method of child support in accordance with the Law on Marriage and Family.

In light of the forgoing,

DECISION:

Pursuant to Clause 2 of Article 343 and Article 344 of the Civil Procedure Code:

1. To accept the Cassation Review Decision No. 114/2018/QDKNGDT dated October 10^th, 2018, by the Chief Prosecutor of the High People’s Procuracy in Da Nang.
2. To annul the Appellate Marriage and Family Law Judgment No. 11/2018/HNGD-PT dated June 7^th, 2018, of the People’s Court of Dak Lak Provinceand to uphold the First Instance Marriage and Family Law Judgment No. 02/2018/HNGD-ST dated March 5^th, 2018, of the People’s Court of Krong Pac District, Dak Lak Province.

CONTENT OF THE CASE LAW:

“[3] Regarding the substance of the case: Regarding the custody of the common child: Throughout the case resolution, both Ms. Pham Thi Kieu K and Mr. Nguyen Huu P expressed their wish to have custody of Nguyen Dac T, born on November 30^th, 2016.

Clause 3 of Article 81 of the 2014 Law on Marriage and Family stipulates: “A child under 36 months old shall be given to the mother for direct care, except where the mother is not capable of directly caring for, nurturing, and educating the child or if the parents have another agreement in the best interests of the child.” In this case, due to marital conflicts, Ms. Pham Thi Kieu K left for her parental home when T was only four months old, leaving T in Mr. Nguyen Huu P’s care.

According to the Verification Records dated January 23, 2018 (documents No. 19, 20, 24), the village management board and women’s union of H Hamlet, E Commune, K District confirmed: “Mr. Nguyen Huu P is raising and caring for Nguyen Dac T very well. Mr. P is employed at N Trading and Service Co., Ltd., with a stable income, fully capable of raising T.” Although Clause 3 of Article 81 of the 2014 Law on Marriage and Family stipulates that “A child under 36 months old shall be given to the mother for direct care…”, Ms. K has not cared for T since he was four months old.

Currently, T is accustomed to the living conditions and environment with Mr. P, who provides the best care and nurturing; transferring custody to Ms. K would cause disruption and negatively affect T’s normal development. During the case resolution, the first instance court comprehensively considered the circumstances and justifiably continued to grant custody of T to Mr. P. The appellate court’s decision to transfer custody to Ms. K was inappropriate and did not fully consider T’s legitimate rights and interests in all aspects.”

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