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QUESTION:

Dear lawyer, may I ask you: My husband and I have been married for 2 years and we have also had a 16-month-old baby girl together. We have not registered for married and neither have we register for our child's birth. My husband has no intention in showing his will of supporting financially for our child. Both of us now want to divorce. He takes all the money, the house and motorbike, I only want to take my kid with me. If the father wants to sue me, would I have the right to raise my baby and proceed the legal procedure to change my baby's last name following mine?

ANSWER:
Greetings from MEDLAW, thank you for sending your question to us, based on the information you provided, we would like to advise as follows:

Pursuant to Article 81 of the Law on Marriage and Family 2014 about Looking after, care for, raising and education of children after divorce:

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.

Pursuant to point a, clause 1, Article 4 Decree 123/2015/NĐ-CP on Birth registration and death registration contents:

1. Birth registration contents shall being determined as prescribed in Clause 1 Article 14 of the Law on civil status the following regulations:
2. a) The child’s full name; race shall be determined subject to agreement of the parents as prescribed in civil law and specified in the application form for birth registration; if the parents do not or fail to reach an agreement, common practice shall prevail;

Regarding to your question, if you and your husband do not have a marriage registration, the custody of children upon divorce shall be resolved as if there was a marriage registration as prescribed in Clause 3, Article 81 Law on Marriage and Family 2014. Accordingly, you and your husband will reach an agreement on the child custody in advance, if no agreement could be reached, the child under 36-month-old shall be assigned to the mother - who is you - to be raised. 

Regarding to the child's family name, it is determined according to point a, clause 1, Article 4 Decree 123/2015/NĐ-CP, which will be agreed by the child's parents in advance. If no agreement were to reached, the baby's last name will be determined based on the custom where the baby was born. If the custom is that the child's family name is named after the father, the child will take the father's name, if you want your child to have your last name, you will still have to reach an agreement with your husband. On the contrary, if it is customary where the child's family name is named after the mother's last name, the child shall take the mother's. 

The content upon is our answer to your question. If you ever need free legal consultancy service, please message us on the Fanpage or contact us through the hotline (84–28) 2253 7956 or website www.medlaw.vn.