Precedent No. 54/2022/AL was adopted by the Council of Justices of the Supreme People’s Court on September 7, 2022, and published under Decision No. 323/QD-CA dated October 14, 2022, by the Chief Justice of the Supreme People’s Court.
1. What is a precedent?
Precedents are arguments and rulings in legally effective judgments or decisions of the Court regarding a specific case, selected by the Council of Justices of the Supreme People’s Court and published by the Chief Justice of the Supreme People’s Court as precedents for Courts to study and apply in adjudication. (Article 1 of Resolution 04/2019/NQ-HDTP)
A selected precedent must meet the following criteria:
– Contain details that clarify legal provisions where there are different interpretations, analyze and explain legal issues and events, and point out principles, handling methods, and legal norms to be applied in a specific case, or demonstrate equity toward issues not yet specifically regulated by law;
– Possess standard characteristics;
– Have guiding value for the uniform application of law in adjudication.
2. Precedent No. 54/2022/AL on determining the right to raise a child under 36 months of age in cases where the mother does not directly care for, nurture, or educate the child
2.1. Source of the precedent
Cassation Decision No. 01/2019/HNGD-GDT dated February 27, 2019, of 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.
Location of the precedent content:
Paragraph 3 of the “Court’s Assessment” section.
2.2. Overview of the precedent content
– Precedent situation:
In a marriage and family case involving a dispute over the right to raise a child under 36 months of age; the mother voluntarily left when the child was very young, showing no concern for looking after, caring for, nurturing, or educating the child; the child has been nurtured and cared for by the father under good conditions and has become accustomed to that living condition and environment.
– Legal solution:
In this case, the Court must continue to assign the child under 36 months of age to the father for direct nurturing and care.
Legal provisions related to the precedent:
Clauses 2 and 3, Article 81 of the Law on Marriage and Family of Vietnam 2014.
Keywords of the precedent:
“Right to raise a child under 36 months old”; “Divorce”; “Child custody dispute”.
CASE CONTENT
Ms. Pham Thi Kieu K and Mr. Nguyen Huu P married voluntarily, with their marriage registered on July 27, 2016, at the People’s Committee of E Commune, K District, Dak Lak Province. However, after some time, conflicts arose due to incompatible personalities and frequent disagreements in life; consequently, Ms. K left to live at her parents’ house around March 2017. Now, considering that the marital conflict has become serious, communal life cannot be sustained, and the purpose of the marriage has not been achieved, Ms. Pham Thi Kieu K and Mr. Nguyen Huu P mutually agree to divorce.
– Regarding common children: Both parties confirm having one common child, Nguyen Dac T, born on November 30, 2016. When T was 4 months old, Ms. K left for her parents’ house, leaving T for Mr. P to raise. Now, both request to raise the child; Ms. K requests Mr. P to provide child support, while Mr. P does not request Ms. K to provide child support.
– Regarding common assets: Both confirm there are no common assets or debts, and thus do not request the Court to resolve these matters.
In the First-instance Marriage and Family Judgment No. 02/2018/HNGD-ST dated March 5, 2018, the People’s Court of Krong Pac District, Dak Lak Province:
Based on Clause 1 Article 28, Point a Clause 1 Article 35, Point a Clause 1 Article 39, Article 147, Article 212, and Article 213 of the Civil Procedure Code 2015; Articles 51, 55, 58, 81, 82, 83, 110, 116, and Article 117 of the Law on Marriage and Family 2014; Clause 5 Article 27 of Resolution 326/2016/UBTVQH14 dated December 30, 2016, of the National Assembly Standing Committee on the collection, exemption, reduction, payment, management, and use of court fees and charges, decided:
– Regarding the marital relationship: Recognize the consensual divorce between Ms. Pham Thi Kieu K and Mr. Nguyen Huu P.
– Regarding common children: Assign Nguyen Dac T, born on November 30, 2016, to Mr. Nguyen Huu P to directly look after, care for, nurture, and educate until T reaches 18 years of age. Ms. Pham Thi Kieu K has the right to visit and care for the common child, and no one has the right to prevent this.
– Regarding child support: Record that Ms. Pham Thi Kieu K voluntarily provides a monthly support of 1,000,000 VND to raise Nguyen Dac T, born on November 30, 2016, until T reaches 18 years of age.
– Regarding common assets and debts: The parties did not request resolution, so the Court does not resolve them.
Additionally, the first-instance judgment decided on court fees, rights, and obligations regarding judgment enforcement and notified the right to appeal according to legal regulations.
– On March 8, 2018, Ms. Pham Thi Kieu K appealed to be granted custody of the common child and did not request Mr. Nguyen Huu P to provide child support.
The appellate court tried the case in the absence of Mr. Nguyen Huu P, citing: The Court had served the summons for the appellate trial twice properly, but Mr. P was absent without a reason. At the appellate trial, Ms. K maintained her requests in the lawsuit petition and the appeal.
In the Appellate Marriage and Family Judgment No. 11/2018/HNGD-PT dated June 7, 2018, the People’s Court of Dak Lak Province decided:
Accept Ms. Pham Thi Kieu K’s appeal; amend the First-instance Marriage and Family Judgment No. 02/2018/HNGD-ST dated March 5, 2018, of the People’s Court of Krong Pac District.
Based on Clause 1 Article 28, Point a Clause 1 Article 35, Point a Clause 1 Article 39, Clause 4 Article 147, Article 212, and Article 213 of the Civil Procedure Code 2015; Articles 51, 55, 58, 81, 82, 83, 110, 116, and Article 117 of the Law on Marriage and Family 2014; Point a Clause 5 Article 27 of Resolution 326/2016/UBTVQH14 dated December 30, 2016, of the National Assembly Standing Committee on court fees and charges, ruled:
– Regarding the marital relationship: Recognize the consensual divorce between Ms. Pham Thi Kieu K and Mr. Nguyen Huu P.
– Regarding common children: Assign Nguyen Dac T, born on November 30, 2016, to Ms. Pham Thi Kieu K to directly look after, care for, nurture, and educate until T reaches 18 years of age. Mr. Nguyen Huu P has the right to visit and care for the common child, and no one has the right to prevent this.
– Regarding child support: Ms. Pham Thi Kieu K does not request Mr. Nguyen Huu P to provide child support for the common child.
– Regarding common assets and debts: The parties did not request resolution, so the Court does not resolve them.
On July 6, 2018, Mr. Nguyen Huu P submitted an “Application for Cassation Review,” stating: The appellate court did not serve the trial notice or the appellate judgment. Only when there was a decision on judgment enforcement did he know about the change in custody to Ms. K, which he claimed was a procedural violation; he did not agree with the appellate court’s decision and requested to raise the child as decided in the first-instance judgment.
In Cassation Protest Decision No. 114/2018/QDKNGĐT-VKS-DS dated October 10, 2018, the Chief Procurator of the High People’s Procuracy in Da Nang requested the Council of Justices of the High People’s Court in Da Nang to conduct a cassation trial to annul the Appellate Marriage and Family Judgment No. 11/2018/HNGD-PT dated June 7, 2018, of the People’s Court of Dak Lak Province for a retrial in accordance with the law.
At the cassation trial, the representative of the High People’s Procuracy in Da Nang changed the protest content, requesting the Cassation Trial Panel to annul the appellate judgment and uphold the first-instance judgment.
COURT’S ASSESSMENT:
[1] Regarding procedure: Regarding the scope of appellate trial: After the first-instance trial, Ms. Pham Thi Kieu K only appealed the first-instance judgment regarding the “Common Child Section.” The appellate judgment assessment also only considered the “Common Child Section,” but the ruling part of the appellate judgment decided on “Marital relationship, assets, and common debts,” which is incorrect under Article 293 of the Civil Procedure Code 2015.
[2] Regarding the presence of litigants: Based on the documents in the case file: Before the trial, the appellate court served the notices and decisions to bring the case to appellate trial to Mr. Nguyen Huu P via postal services (as shown in the delivery receipts – folios 83, 84, 86). Mr. Nguyen Huu P did not receive the aforementioned procedural documents due to the fault of the Post Office of K District (in Official Dispatch No. 23/BDH.KRP dated September 25, 2018, the Post Office of K District confirmed that Mr. Nguyen Thanh T1, a postman, delivered them to another person also named P in H Village – folio 102). Thus, the appellate court’s decision to try the case in the absence of Mr. Nguyen Huu P was in accordance with Point b Clause 2 Article 227 and Clause 3 Article 296 of the Civil Procedure Code.
[3] Regarding content: Regarding the raising of the common child: During the case resolution, both Ms. Pham Thi Kieu K and Mr. Nguyen Huu P expressed their desire to raise Nguyen Dac T, born on November 30, 2016. Clause 3 Article 81 of the Law on Marriage and Family 2014 stipulates: “A child under 36 months of age shall be assigned to the mother for direct raising, except where the mother is ineligible to directly look after, care for, nurture, or educate the child or the parents have a different agreement suitable for the child’s interests.” In this case, solely due to marital conflict, Ms. Pham Thi Kieu K voluntarily returned to live at her parents’ house, leaving T, who was then only 4 months old, for Mr. Nguyen Huu P to raise. In the Verification Minutes dated January 23, 2018 (folios 19, 20, 24), the Village Management Board and the Women’s Union of H Village, E Commune, K District confirmed: “Mr. Nguyen Huu P nurtures and cares for Nguyen Dac T very well. Mr. P has a job at N Trade and Service Co., Ltd., with a stable income, and is fully qualified to raise T.” Although Clause 3 Article 81 of the Law on Marriage and Family 2014 stipulates that “A child under 36 months of age must be assigned to the mother…”, Ms. K had not raised T since he was 4 months old. Currently, T is accustomed to the living environment and is being cared for by Mr. P under the best conditions; transferring T to Ms. K would cause disruption and affect the child’s normal development. During the case resolution, the first-instance court considered the matter comprehensively, and continuing to assign T to Mr. P for direct care and nurturing was grounded. The appellate court’s amendment to assign T to Ms. K was inappropriate and failed to fully consider T’s legal rights and interests in all aspects.
[4] Regarding child support: At the first-instance trial, Mr. Nguyen Huu P did not request support, while Ms. Pham Thi Kieu K stated: “If the Court assigns the child to Mr. P, I voluntarily provide 1,000,000 VND/month.” Ms. Pham Thi Kieu K’s income is 6,000,000 VND/month, so the voluntary support amount is appropriate.
[5] Regarding raising the common child after divorce: If Ms. Pham Thi Kieu K has sufficient grounds to believe that Mr. Nguyen Huu P is no longer qualified to raise the common child or is mistreating the child, she has the right to file a lawsuit requesting the Court to change the person directly raising the child, as well as change the amount and method of child support according to the Law on Marriage and Family.
For these reasons;
DECISION:
Based on Clause 2 Article 343 and Article 344 of the Civil Procedure Code.
1. Accept the Cassation Protest Decision No. 114/2018/QDKNGĐT dated October 10, 2018, of the Chief Procurator of the High People’s Procuracy in Da Nang.
2. Annul the Appellate Marriage and Family Judgment No. 11/2018/HNGD-PT dated June 7, 2018, of the People’s Court of Dak Lak Province and uphold the First-instance Marriage and Family Judgment No. 02/2018/HNGD-ST dated March 5, 2018, of the People’s Court of Krong Pac District, Dak Lak Province.
PRECEDENT CONTENT:
“[3] Regarding content: Regarding the raising of the common child: During the case resolution, both Ms. Pham Thi Kieu K and Mr. Nguyen Huu P expressed their desire to raise Nguyen Dac T, born on November 30, 2016. Clause 3 Article 81 of the Law on Marriage and Family 2014 stipulates: “A child under 36 months of age shall be assigned to the mother for direct raising, except where the mother is ineligible to directly look after, care for, nurture, or educate the child or the parents have a different agreement suitable for the child’s interests.” In this case, solely due to marital conflict, Ms. Pham Thi Kieu K voluntarily returned to live at her parents’ house, leaving T, who was then only 4 months old, for Mr. Nguyen Huu P to raise. In the Verification Minutes dated January 23, 2018 (folios 19, 20, 24), the Village Management Board and the Women’s Union of H Village, E Commune, K District confirmed: “Mr. Nguyen Huu P nurtures and cares for Nguyen Dac T very well. Mr. P has a job at N Trade and Service Co., Ltd., with a stable income, and is fully qualified to raise T.” Although Clause 3 Article 81 of the Law on Marriage and Family 2014 stipulates that “A child under 36 months of age must be assigned to the mother…”, Ms. K had not raised T since he was 4 months old. Currently, T is accustomed to the living environment and is being cared for by Mr. P under the best conditions; transferring T to Ms. K would cause disruption and affect the child’s normal development. During the case resolution, the first-instance court considered the matter comprehensively, and continuing to assign T to Mr. P for direct care and nurturing was grounded. The appellate court’s amendment to assign T to Ms. K was inappropriate and failed to fully consider T’s legal rights and interests in all aspects.”
