Con dưới 36 tháng tuổi: Ai được nuôi sau khi ly hôn và cần chuẩn bị gì khi Tòa yêu cầu nộp chứng cứ? (Luật sư Lê Bình Phương phân tích)Children Under 36 Months Old: Who Gets Custody After Divorce, and What to Prepare When the Court Requests Evidence? (Analysis by Lawyer Lê Bình Phương)

Reference translation for convenience. The Vietnamese version is the authoritative text.

Overview

In my advisory practice, one of the most common situations I encounter is both spouses wanting custody of the child after divorce, with neither willing to give way. In that case, the court must be the one to decide. The court usually requires both sides to submit documents and evidence to prove who is better placed to directly raise the child.

Many people who receive the court’s notice requesting evidence become anxious, not knowing what to do, and may not even know that the law already has a clear priority rule — one that may well be on their side.

This article analyses in detail the case where the child is still under 36 months old: what the law provides, the criteria the court assesses, and what the mother needs to prepare when she receives the court’s notice.

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Relevant Legal Provisions

The principle of priority in awarding custody to the mother when the child is under 36 months old

Article 81, clause 3 of the Law on Marriage and Family 2014 provides: “A child under 36 months old shall be given to the mother to directly raise, except where the mother does not meet the conditions to directly look after, care for, raise, and educate the child, or where the parents have another agreement that is consistent with the child’s interests.”

This is not a discretionary decision of the court, but the law’s default rule. That is, if the child is under 36 months old, the court must award custody to the mother, unless there are grounds not to.

What does “a mother who does not meet the conditions” mean?

Resolution 01/2024/NQ-HĐTP of the Council of Judges of the Supreme People’s Court, in Article 6, clause 3, gives specific guidance on three cases in which the mother is regarded as not meeting the conditions: first, suffering from a fatal disease or another serious illness to the extent of being unable to care for herself; second, having a monthly income lower than half the regional minimum wage at her place of residence and having no other assets; third, not having the minimum time conditions to directly look after, care for, raise, and educate the child.

The Resolution further provides in clause 4: if the father’s conditions are not better than the mother’s conditions under the above criteria, the court still awards custody to the mother.

Criteria for assessing “the child’s interests in all respects”

For children over 36 months old, or in cases of dispute with complex factors, the court relies on Article 6, clause 1 of Resolution 01/2024 for a comprehensive assessment: the parents’ actual conditions and capacity to look after and care for the child; the close bond between the child and each party; the actual concern shown; the stability of the living and educational environment; and the child’s wishes if the child is 7 years old or older.

The obligation to provide evidence

Article 91 of the consolidated Civil Procedure Code 2025 provides that a litigant who requests the court to protect their interests must collect, provide, and submit documents and evidence to prove them. Article 96 provides that if they do not submit, or submit incompletely, without legitimate reason, the court will rely on the evidence already in the file to resolve the matter. Article 97 allows a litigant to ask the court to assist in collecting evidence when they cannot collect it themselves.

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Analysis and Application

In the case of a child still under 36 months old, the most important thing to understand is this: the burden of proof lies not with the mother but with the father. The law has already defaulted to a priority for the mother. The father must prove that the mother does not meet the conditions before the court can even consider awarding custody to him.

However, this does not mean the mother can sit and wait without doing anything. Once the court has issued a notice requesting evidence and fixed a deadline, both sides have an obligation to comply. If the mother does not submit documents and the father submits a complete set, the file in the court’s hands will be one-sided — a risk that can entirely materialise.

Therefore, even though the law is leaning in her favour, the mother still needs to proactively prepare a set of documents proving that she meets the conditions and is in fact raising the child. This is both a right and a procedural obligation.

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Practical Example

Suppose two spouses are in the process of divorce at court. Their child is just 7 months old. Both request to directly raise the child. The court issues a notice requesting submission of documents within 10 days.

The mother lives and works in the city, has a stable income, and is directly caring for the child every day. She meets the conditions under the law but does not know what to submit, and so ignores the notice or submits something perfunctory.

The father is in his home province and submits complete documents on income, housing, and health, with confirmation from the local authority of stable living conditions.

The result: although the law favours the mother, the court may reconsider if the mother’s file is empty and the father can prove that she has no actual conditions to raise the child — for example, because she works night shifts with no one to help look after the child.

This is a situation that can entirely happen and has happened in actual adjudication. Legal entitlements are only protected when the person who holds the right knows how to exercise it through the correct procedure.

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Important Notes

Submit on time and in full. The deadline fixed by the judge is mandatory. If you cannot submit for objective reasons, you must make a written explanation to the court immediately, and not let the deadline pass without any action.

Documents proving that you are in fact raising the child are the most important. The child’s vaccination record, medical record, invoices for milk, diapers, and medicine, and photographs of the mother and child’s daily life — this is the group of evidence that directly shows who is in fact caring for the child, not just on paper.

Do not confuse “sending support money” with “directly raising the child”. Adjudication practice shows that the court has stripped a mother of custody because she went abroad as a migrant worker and entrusted the child to the maternal grandparents to raise instead — even though she still sent money in full every month. The court held: sending money is not the same as directly caring for the child. A person who holds custody but cannot perform the duty directly for a long period may have it reconsidered by the court for change under Article 84 of the Law on Marriage and Family 2014.

If you cannot collect the documents, you can ask the court for assistance. Article 97, clause 1, points đ and e of the Civil Procedure Code provides that a litigant has the right to request the court to intervene in collecting evidence when they cannot do so themselves. Do not overlook this right.

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Related Articles

• When the husband may not file a petition for the court to resolve a divorce
• Obstructing visitation after divorce: the line between administrative violation and criminal prosecution
• If the husband commits adultery, does the wife get a larger share of property on divorce?
• Divorce and child custody: an overview of common legal issues

Conclusion

When a child is under 36 months old, Vietnamese law has a provision protecting the mother’s right — that is the rule in Article 81, clause 3 of the Law on Marriage and Family 2014, guided in detail by Resolution 01/2024/NQ-HĐTP. This provision is not a natural advantage but a specific legal right. And a legal right only has meaning when the person who holds it knows how to exercise it properly.

If you are in a custody dispute and the court has issued a notice requesting evidence, act immediately: prepare complete documents, submit on time, and if necessary, turn to a lawyer for support in building the file methodically. In civil proceedings, preparing and providing evidence to the court is one of the extremely important steps to achieving the desired adjudication result.