Question: My girlfriend (a foreign national) and I live together in Vietnam without registering our marriage, and we currently have an 18-month-old child together. Due to conflicts, we have decided to separate. Currently, the father’s information section on the child’s Birth Certificate is left blank, and my girlfriend plans to take the child back to her home country. Can I request direct custody of the child or prevent the child from being taken abroad? Where should I complete the paternity recognition procedure, is DNA testing mandatory, and if the custody dispute goes to Court, what criteria will the Court rely on to decide?
Answer:
-Pursuant to Articles 14 and 15 of the Law on Marriage and Family 2014, cohabitation as husband and wife without marriage registration does not generate rights and obligations between the partners, but parental rights and obligations toward the child remain equal to those born within a registered marriage. However, under Clause 1, Article 88 of the Law on Marriage and Family 2014, a child is only automatically presumed to be the common child if born during the marriage period. Where parents are unmarried, the legal father-child relationship only officially arises from the time of completing the paternity registration at the civil registry authority or being established by a legally effective Court judgment/decision. While the father’s section on the Birth Certificate remains blank, the father lacks standing to demand direct custody or legally prevent the child from leaving the country
– Regarding jurisdiction for paternity recognition, Article 101 of the Law on Marriage and Family 2014 distinguishes: non-disputed cases fall under the jurisdiction of civil registry authorities; disputed cases or cases where the person to be recognized has passed away fall under the Court’s jurisdiction. Under Decree 120/2025/ND-CP (effective from July 1, 2025), jurisdiction over non-disputed foreign-element paternity registrations has been fully delegated to the Communal People’s Committee of the residence of either party. In disputed cases, jurisdiction belongs to the Family and Juvenile Court under the Regional People’s Court pursuant to the Civil Procedure Code (as amended by Law No. 85/2025/QH15).
– Regarding evidence proving the father-child relationship in civil registry procedures, DNA testing is not mandatory in all cases. Pursuant to Article 14 of Circular 04/2020/TT-BTP, if both parties agree without dispute, they may choose to submit a written pledge regarding the parent-child relationship with at least two witnesses in lieu of DNA test results. However, if the matter must be resolved in Court due to a dispute, the DNA examination result will serve as the most vital source of evidence for the Court to establish biological ties.
– Regarding direct custody of a child under 36 months of age, Clause 3, Article 81 of the Law on Marriage and Family 2014 stipulates that a child under 36 months of age is directly awarded to the mother, unless the mother is unqualified to directly care for, raise, and educate the child or the parents have a different agreement suitable for the child’s best interests. Guiding regulations (Resolution 01/2024/NQ-HDTP) define a mother as “unqualified” if she falls under one of the following: suffering from a fatal/severe illness rendering her incapable of self-care; monthly income below half of the regional minimum wage with no other assets; or lacking the minimum necessary time to directly care for the child.
– Regarding child support obligations and foreign-element considerations, the parent not directly raising the child is obligated to pay child support for minor children under Article 110 of the Law on Marriage and Family 2014. Under Resolution 01/2024/NQ-HDTP, the support amount ordered by the Court shall not be lower than half of the regional minimum wage per child per month. Furthermore, all personal documents issued by foreign authorities (such as passports or identity certificates) must be consularly legalized or Apostilled (under Decree 293/2026/ND-CP) and notarized/translated into Vietnamese prior to use in Vietnam.
Conclusion:
– The standard process to protect parental and child rights comprises 04 steps: (1) Determine whether the case is consensual or disputed to select the proper authority (Communal People’s Committee or Regional People’s Court); (2) Gather evidence proving paternity (DNA test results or a joint written pledge with witnesses); (3) Complete consular legalization/Apostille and notarized translations for foreign personal documents; (4) Submit the application for paternity registration combined with Birth Certificate supplementation, or file a lawsuit requesting the Court to determine paternity while concurrently resolving child custody and support.
If you require detailed legal advice on paternity recognition procedures, child custody disputes, child support, or legal representation for foreign-element matters in Vietnam, please contact SB Law for timely and effective support from our specialized legal team.
