On the Application of Law in Trial

In the case of child visitation, the subject has the right to request the Court to limit the right to visit the child, but there is no provision on the time limit for limiting the right to visit the child. This omission will make it difficult for the Court and the parties to apply the law on limiting the right to visit the child. Therefore, the Law on Marriage and Family needs to supplement the provision on the time limit for limiting the right to visit the child to a certain period of time, which can be from one to five years depending on the level of impact of the abuse of the right to visit the child.

Fifth , similar to obstructing the right to visit children, the act of abusing the right to visit children to obstruct or negatively affect the care, upbringing and education of the child by the person directly raising the child should be subject to administrative sanctions. In case the violator has been punished but still re-offends, the person directly raising the child has the right to request the Court to restrict the right to visit children.

In addition, it is common for people who do not directly raise their children to take them home to visit but then refuse to hand them over to the person who has custody of the children. Such is the case of Ms. Phan Thi Loi (Phuoc Thanh commune, Cu Chi district, Ho Chi Minh City). The People's Court of Cu Chi district held a first-instance trial of the divorce case between Ms. Phan Thi Loi and her husband. Regarding the common child, the court acknowledged the agreement, giving her the right to continue raising the child, and her husband had to provide child support. According to the court, the child is still young and needs the care of the mother and also needs to be given to the mother to stabilize her psychology. The first-instance judgment was not appealed or protested, so it is effective. Four years after the divorce, everything is still going smoothly, and the relationship between the two sides has not changed. However, Ms. Loi said that in early June 2012, as usual, she let her child go to her paternal home to visit, but nearly a week after she returned to pick her child up, she was firmly prevented by her ex-husband's family. They said that now the child was grown up, so they wanted to keep him to continue raising him. They also did not let her see the child while the child expressed his wish to only live with his mother.

In this case, Ms. Loi will be extremely confused when resolving the matter because current Vietnamese law does not have any regulations regulating this issue. Some opinions say that in this case, Ms. Loi's husband can be prosecuted for failing to comply with the judgment. However, the judgment has been in effect for more than four years and her husband has fulfilled his obligation to hand over the child, meaning the judgment has been enforced, so there is no basis to prosecute him for failing to comply with the judgment. Other opinions say that this behavior constitutes the crime of child appropriation under Article 120 of the 1999 Penal Code, but handling Ms. Loi's husband's behavior under the provisions of this Article is too harsh because this is a violation of the marriage and family regime, so administrative measures should be given priority. However, current legal documents do not have any regulations on administrative sanctions for this behavior. This is a major loophole in Vietnamese law in the field of marriage and family. Therefore, Vietnamese law needs to supplement regulations on administrative sanctions for the act of holding a child by a person who does not directly raise the child without the consent of the person who directly raises the child. At the same time, the Penal Code should also add this crime to Chapter XV (the chapter on crimes against the marriage and family regime).

Fourth, about child support.

Maybe you are interested!

In practice, in most cases after divorce, the issue of alimony does not guarantee the rights of the child after the divorce. Not to mention that the alimony after divorce is a "bad debt" in some cases; even in cases where the person with the obligation to pay alimony performs the alimony in accordance with the provisions of the judgment declared by the court, it still does not meet the "essential needs of the person receiving alimony". Let me cite a few specific cases: Case 1: Mr. L and Ms. X were granted a divorce by the court, the court ruled that Ms. X would have custody of the child; child B was 4 years old at that time and Mr. L was forced to pay a monthly child support of 8 kg of rice equivalent to

30,000 VND from April 1993 until child B turns 18 years old. Second case: Mr. K and Ms. C were granted a divorce by the court, the court ruled that Ms. C would be given custody of the child.

child; Y was 12 years old at that time and forced Mr. K to pay child support every month

150,000 VND from June 2002 until Y turns 18 years old.

The Court's regulations on the level of alimony are based on the income level and market prices at the time of the trial. When divorcing, most children are still very young, in some cases 14; 15 years later, they will be 18 years old. The level of alimony is "unchangeable" while the market is volatile and prices are skyrocketing. The level of alimony has become a burden for those who directly raise children after divorce. In addition, in many cases, the person with the obligation to pay alimony does not voluntarily fulfill the obligation to pay alimony. The enforcement agency and the agency that pays the salary and wages to the person with the obligation to pay alimony do not deduct the alimony to transfer to the person receiving alimony as prescribed in Clauses 2-3, Article 20 of Decree No. 70/2001/ND-CP mentioned above, so the burden falls on the person who directly raises the child after divorce; There was a case where Ms. L., when she divorced, the Court assigned her to raise her young child directly, the older child lived with the father, when the father got married, her older child "ran straight back to live with the mother"... No mother would refuse her child in that case. Six years after the divorce, she did not receive any child support from her husband, she filed a petition with the enforcement agency but it was not resolved, she went to the City Civil Judgment Enforcement Steering Committee for intervention. According to her statement: Since the divorce, she has not received the child support according to the court's verdict, this time she had to ask for help because after having her appendix removed, her health has declined, her finances are exhausted and she cannot cover her daily expenses... it is worth mentioning that her husband is the one working at the law enforcement agency. It takes "five or seven times" to meet the person with the obligation to provide support, persuade and persuade, and ask the head of the agency to intervene according to Article 20 of Decree No. 70/2001/ND-CP to "demand" the support money. Very few agencies and organizations implement Clause 3 of Article 20 of Decree No. 70/2001/ND-CP. They refuse to cooperate with the judicial agency and avoid salary deductions according to the law.

regulations because they are afraid of conflict, thinking that it is not their obligation. Therefore, the implementation of regulations on alimony is still difficult.

Because the regulations on alimony are still general, there are no specific regulations on the level of child support after divorce, the court bases its decision on the specific circumstances of each divorce case. However, because of the phrase "depending on the actual ability" of the person receiving alimony, the level of alimony varies from place to place in each divorce case.

Behind the divorce judgment is the fate of each person, so to ensure the "essential needs" in life so that children after divorce "develop physically and mentally", the State needs to specify the level of alimony. Accordingly, the law should stipulate the level of alimony calculated as a percentage of the income of the person who must provide alimony or take the minimum wage at each time as a framework to regulate the level of alimony. Even if the person who must perform the alimony obligation is not a salaried employee, their children still need to be guaranteed a minimum standard of living. When there is a change in the salary level, the enforcement agency will apply it at each time of enforcement to ensure the rights of the person receiving alimony and avoid disadvantages for the person directly raising the child after the divorce.

Fifth, about the timing of child support.

Article 56 of the 2000 Law on Marriage and Family stipulates the maintenance of the person who does not directly raise the child after divorce. The problem is that when a couple divorces, the father or mother does not directly raise the child according to the provisions of this law, and the parents cannot agree on the time to start providing child support, how will the Court resolve it? Currently, there is no legal document regulating or guiding this issue. This has led to the Court not being consistent and inappropriate when resolving the issue of child support, and not ensuring the rights of the child in many cases. In practice, the Court believes that the time to start providing child support is

On the day of the verdict, some courts declare the starting date of child support as the date the verdict takes legal effect, or do not declare when the person with the obligation to pay child support must fulfill that obligation.

There are many opinions that it is unnecessary to stipulate the time when child support begins because support is a factor that comes from emotions, parents always want their children to have a full life, so they think that without regulations, they will voluntarily and consciously fulfill their responsibilities. But in reality, recent years have proven the opposite. After divorce, the father or mother did not voluntarily fulfill their child support obligations until the civil enforcement agency issued a decision to enforce, forcing them to fulfill their responsibilities, then the support was implemented, and in many cases, they still avoided it. The father or mother's failure to fulfill their child support obligations can be due to a number of subjective and objective reasons.

Therefore, the Law on Marriage and Family and its guiding documents need to provide more specific regulations on the starting time of alimony. This will be the basis for the Courts during the trial to make accurate judgments on the starting time of child support to protect the rights of the children, especially in cases where the father or mother does not voluntarily fulfill the obligation to provide child support. The civil enforcement agency also has the basis and basis to determine to force the person who must provide alimony to perform his/her obligation. Specifically, the guiding document for the implementation of the Law on Marriage and Family needs to provide specific regulations as follows:

The time when the father or mother who does not directly raise the child upon divorce must pay child support is the day this person does not live with the child and does not fulfill the obligation to raise the child. If this date cannot be determined, the time when the father or mother who does not directly raise the child upon divorce must pay child support is the date the first instance judgment takes effect, in case the parties cannot agree on child support.

Sixth, suspension of child support

Article 54 of the 2000 Law on Marriage and Family stipulates:

... The parties may agree to change the method of support or temporarily suspend support in the event that the person with the support obligation falls into economic difficulty and is unable to fulfill the support obligation. If no agreement is reached, the Court shall be requested to resolve the matter [28].

According to the above regulations, when a husband or wife encounters economic difficulties, they can agree with each other, or ask the Court to temporarily suspend alimony. This provision of the law on marriage and family aims to ensure that the obligation of parents to provide alimony for their children is more feasible. Life is often not as people wish, no one can predict and be sure that they will never encounter any difficulties in life. The difficulties they encounter may be created by themselves or may be caused by objective factors. For example: Mr. X is doing well with a turtle farm, but unfortunately, a severe flood caused his turtle farm to be lost and he fell into economic difficulties. However, the temporary suspension of alimony directly affects the rights of the person receiving alimony, because the alimony is calculated based on the essential needs of the person receiving alimony. If the temporary suspension of child support occurs while the person directly raising the child is not financially capable of ensuring the child's essential needs, the child's life will be severely affected. Therefore, the temporary suspension of child support should only be suspended in cases where the person with the obligation to provide support falls into economic difficulties due to legitimate objective reasons that make them unable to fulfill their support obligations. Such objective reasons could be floods, droughts, natural disasters, fires, etc. or the person with the obligation to provide support has a serious illness, loses the ability to work, etc. To ensure the rights of the child, the Law should also specifically stipulate the time limit for payment.

The period of temporary suspension of alimony is until the person with the obligation to pay alimony overcomes the economic situation caused by that objective reason. On the other hand, the law should have provisions on providing additional alimony with an amount of property equivalent to the alimony level during the period of temporary suspension of alimony. For example, Mr. X has the obligation to pay alimony for their common child after the divorce of 1,000,000 VND/month. Unfortunately, due to severe flooding that caused his turtle farm to be completely destroyed and he fell into economic difficulties, Mr. X requested the Y District Court to resolve the temporary suspension of alimony. After considering his request, the Y District Court decided to allow Mr. X to temporarily suspend alimony for a period of six months from April 15, 2012 to October 15, 2012. Thus, after October 15, 2012, Mr. X must provide additional support of: 1,000,000 VND x 6 = 6,000,000 VND. These detailed and specific regulations will ensure that the child's legitimate rights and interests are more fully protected in practice.

Seventh, on the limitation of parental rights to children after divorce.

In general, the provisions of the current Vietnamese law on marriage and family on restricting the rights of parents towards their children are quite detailed and specific, ensuring that the rights and interests of their children are comprehensively protected. However, the question is that in addition to the rights and obligations towards minor children, parents also have obligations and rights towards adult children who are disabled, have lost civil act capacity, are unable to work and have no property to support themselves. In the case where the father or mother has been convicted of one of the crimes of intentionally violating the health, dignity, honor or has seriously violated the obligations of looking after, caring for, raising, and educating; destroying property; having a depraved lifestyle, inciting, forcing their children to do illegal and immoral things towards adult children who have lost civil act capacity, are unable to work and have no property to support themselves, will their rights towards these children be restricted?

In order to improve the provisions of the law on marriage and family, ensuring the fairness and humanity of the law, it is necessary to supplement

Supplementing regulations on restricting parental rights over adult children who have lost civil act capacity and are unable to work, in addition to restricting parental rights over minor children.

3.2.2. On the application of law in trials

In addition to the objective difficulties due to general and incomplete regulations, some officials lack legal and social knowledge, and in some cases have not applied the law accurately and comprehensively, and the rights of children are still not guaranteed.

+ The division of property often does not pay attention to the issue of who raises the children to give priority to that person. Although the law has provisions on this issue indirectly through the provisions on the division of property of spouses upon divorce based on the principle of "protecting the rights and legitimate interests of the wife, minor children or adult children who are disabled, have lost civil act capacity, are unable to work and have no property to support themselves" [28, Point b, Clause 2, Article 95]. When dividing property, there are only two parties, the husband and wife, but attention must still be paid to the children who cannot take care of themselves because the children's lives also depend a lot on the property that the person directly raising the children receives. It can be understood that when dividing the common property of spouses, paying attention to the legitimate interests of minor children, disabled adult children, and those who have lost civil act capacity means paying attention to the rights of the person directly raising the children. However, some judges still separate the division of marital property from ensuring the rights of children when their parents divorce. This also has a significant impact on the lives of children after their parents divorce.

+ The issue of who gets to raise the child is often not viewed comprehensively. In reality, the mother often wins the right to directly raise the child because the mother is often the one who cares, looks after, and is closer to the child than the father. This has often become a defining custom in who gets to raise the child: The court often favors the mother. When there is a dispute

Comment