Question: My husband and I are divorced. The Court ruled that I have the right to directly rear the child, while the father is responsible for child support and has weekend visitation rights. Last week, my ex-husband took advantage of his visitation rights to pick up our child and then intentionally withheld him, cut off communication, and changed his residence to prevent me from accessing the child. Currently, although I have found his location, he adamantly refuses to return the child and has declared that he will file a lawsuit to request a change of the person directly rearing the child. May I ask if my ex-husband has the right to request a change in child custody? What should I do to reclaim my child?
Answer
Based on Article 82 of the Law on Marriage and Family 2014, after a divorce, the parent who does not directly rear the child has the following rights and obligations:
- The parent not directly rearing the child has the obligation to respect the child’s right to live with the person directly rearing the child.
- The parent not directly rearing the child has the obligation to provide child support.
- After a divorce, the parent not directly rearing the child has the right and obligation to visit the child without being obstructed by anyone.
- If the parent not directly rearing the child abuses the visitation to obstructor adversely affect the looking after, care, nourishment, and education of the child, the person directly rearing the child has the right to request the Court to restrict the visitation rights of that person.
At the same time, Article 83 of the Law on Marriage and Family 2014 also stipulates that the parent directly rearing the child has the right to request the person not directly rearing the child to perform the obligations prescribed in Article 82 as mentioned above and to request the person not directly rearing the child and other family members to respect his/her right to rear the child.
Based on the information provided, it appears that your ex-husband's actions of unilaterally retaining the child, changing the residence, and cutting off contact constitute an abuse of visitation rights and a serious violation of the obligation to respect your custody rights. This constitutes grounds for the Court to consider restricting the father's visitation rights in the future upon your request. Furthermore, the act of obstructing the right to care for and rear a child may be subject to an administrative fine ranging from VND 5,000,000 to VND 10,000,000 under point c clause 1 Article 40 of Decree 282/2025/ND-CP.
Regarding the issue of requesting a change of the person directly rearing the child after divorce, Article 84 of the Law on Marriage and Family 2014 stipulates that a change of the person directly rearing a child shall be settled when there is one of the following grounds:
- The parents agree on the change of the person directly rearing the child in the interests of the child;
- The person directly rearing the child no longer fully qualifies to directly look after, care for, nourish, and educate the child.
In addition, the change of the person directly rearing a child must take into account the aspirations of the child if the child is 07 years old or older.
Therefore, if your ex-husband wishes to request a change in custody, he must have grounds to prove that you no longer have sufficient capacity regarding income, housing, or ethics, while also considering the aspirations of the child. The fact that the ex-husband has better economic conditions is not the sole basis for depriving one of custody
In summary, in this case, you should first prioritize negotiation and mediation to resolve the issue in order to minimize potential disputes and ensure the best interests of your child.
If your ex-husband continues to be uncooperative and persists in obstructing your care and upbringing of the child, you should consider taking the following steps:
(i) Prepare a notarized record documenting the acts of obstruction against your care of the child, to serve as lawful evidence;
(ii) Submit a petition/complaint together with relevant documents and evidence proving that you have been obstructed in the process of caring for the child to the competent commune/ward People’s Committee, requesting the handling of administrative violations for acts of obstructing child custody rights in accordance with Clause 1, Article 54 of Decree No. 282/2025/NĐ-CP;
(iii) At the same time, if such obstructive acts occur repeatedly and adversely affect the lawful rights and interests of the child, you may file a petition with the Court requesting the issuance of a decision to restrict the father’s visitation rights in accordance with the law..
Consultancy: Marriage and family services
