Question:
My lover is a foreigner. While we were together, he and I decided to live in the same house without registering our marriage. After a while, we had a child together and filed a marriage certificate. give birth to a child. When my child was 12 months old, he took advantage of my absence and took my child away without my knowledge. So, between me and him, who has custody of the child and is it illegal for him to take the child without my permission?
Anwser:
1. Husband and wife relation
Pursuant to clause 1 Article 14 of the Law on Marriage and Family 2014: “A man and woman eligible for getting married under this Law who cohabit as husband and wife without registering their marriage have no rights and obligations between husband and wife. Rights and obligations toward their children, property, obligations and contracts between the partners must comply with Articles 15 and 16 of this Law.”
Pursuant to Article 15 of the Law on Marriage and Family 2014: “Rights and obligations between a man and woman cohabiting as husband and wife and their children must comply this Law’s provisions on rights and obligations of parents and children.”
Pursuant to clause 7 Article 3 of the Law on Marriage and Family 2014: “Cohabitation as husband and wife means a man and a woman’s organization of their living together and consideration of themselves as husband and wife”.
According to the information provided by the Client, the two people have lived together without marriage registration, therefore, no marital rights and obligations arise. However, during their cohabitation, they have a common child who is now 12 months old. Therefore, both individuals now have rights and obligations regarding their common child.
2. Rights and obligations in raising the common child
2.1. According to Law on Marriage and Family
Pursuant to Article 71 of the Law on Marriage and Family 2014: “Father and mother have equal obligation and right to jointly care for and raise their minor children or adult children who have lost their civil act capacity or have-no working capacity and no property to support themselves”. Accordingly, father and mother have equal right and obligation to jointly care for and raise their minor children.
Pursuant to Article 81 of the Law on Marriage and Family 2014
1. After a divorce, parents still have rights and obligations to look after, care for, raise and educate minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves in accordance with this Law, the Civil Code and other relevant laws.
2. Husband and wife shall reach agreement on the person who directly raises their children and on his and her obligations and rights toward their children after divorce. If they fail to reach agreement, the court shall appoint either of them to directly raise the children, taking into account the children’s benefits in all aspects. If a child is full 7 years or older, his/ her desire shall be considered.
3. A child under 36 months of age shall be directly raised by the mother, unless the mother cannot afford to directly look after, care for, raise and educate the child or otherwise agreed by the parents in the interests of the child.
According to the information provided by the Client, currently, the two people are no longer living together, so resulting in the emergence of the obligation to raise and support their common child. According to legal regulations in the event of a divorce decision (meaning they no longer live together), the custody of the child will be prioritized through mutual agreement between both parties. In cases where no agreement is reached, the court may decide to assign custody to one of the parents. If the child is 7 years or older, their wishes will be considered. If the child is under 36 months old, custody will be directly given to the mother; however, if the mother is not qualified to directly care for, nurture, and educate the child or if there is another mutual agreement, then custody may be awarded to the father. Additionally, the court will consider the character, morality, and economic status of both the mother and father to determine who is best suited to have direct custody of the child.
Furthermore, pursuant to clause 2 Article 82 of the Law on Marriage and Family 2014, it is specified that: "2. The parent who does not directly raise a child shall support this child." Following this article, either the father or mother is fully entitled to visit the child without any interference, unless the Court imposes restrictions on parent’s rights toward a minor child
2.2. Law on Prevention and combat against domestic violence
Pursuant to Article 3 of the Law on Prevention and combat against domestic violence 2022:
“1. Domestic violence acts include:
e) Preventing family members from meeting their family members, having legal, healthy social relationships, or committing acts of isolating and putting constant psychological pressure;
g) Preventing the performance of rights and obligations in the family relations between grandparents and grandchildren; between father, mother, and child; between husband and wife; between brothers and sisters;”
Moreover, according to this article, preventing the exercise of rights and obligations in family relationships between grandparents and grandchildren; between parents and children; between brothers and sisters; is considered an act of domestic violence.
Pursuant to Article 56 of the Decree144/2021/NĐ-CP: “A fine of between VND 5.000.000 and 10.000.000 shall be imposed for acts to prevent visitation and care rights between grandparents and grandchildren; between parents and children, except for cases where the parental visitation rights are limited under the decision of the court; between husband and wife; between brothers and sisters together.”
Accordingly, if it is not a court decision restricting visitation and care for the child after divorce, but rather one parent, either the father or the mother, prevent the visitation and care, they may be fined from 5,000,000 VND to 10,000,000 VND for such preventing behavior.
2.3. Criminal Code
Pursuant to clause 1 Article 153 of the Criminal Code 2015, amendment 2017: “1. Any person who uses violence, threatens to use violence, deceives, or employs other tricks to deliver a person under 16 years old to someone else shall face a penalty of 03 to 07 years.”
According to the information provided, if the father is currently taking the child abroad without informing the wife and intends to keep the child for himself, he may be subject to a penalty ranging from 03 to 07 years for the crime of abduction of a person under 16 years old.
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