By Lawyer Nguyen Nhu Hai – UniLaw LLC

Attorney for Grandparents Rights

Grandparents often serve as the bedrock of the Vietnamese family structure, providing wisdom, care, and emotional stability. However, legal disputes regarding their rights—ranging from visitation and custody to inheritance and property management for grandchildren—can be complex and emotionally taxing. At Unilaw, we understand that protecting these rights is not just about legal statutes; it is about preserving the bond between generations. This comprehensive guide explores the legal landscape for grandparents in Vietnam, providing clarity on how to navigate the court system to ensure the best interests of both the elderly and their descendants.

The Legal Struggle of a Grandmother Acting for Her Grandchildren: A Real-Life Case Study

To understand the practical application of grandparents’ rights, we look at a significant case involving a grandmother, Mrs. Phung Thi H, and her attempt to secure a financial future for her two minor grandchildren, Hoang Gia H2 (born in 2011) and Hoang Gia P3 (born in 2014). Mrs. H entered into a capital transfer agreement to become a member of Company V, contributing 5,000,000,000 VND. She explicitly stated in a “Confirmation Letter” dated January 14, 2019, that the entire amount she used to contribute capital and register as a member of Company V actually belonged to her two grandchildren. She clarified that her standing as a member was purely formal because the children were too young to meet the legal requirements for managing a business, and she was acting on their behalf.

However, internal family conflicts arose. The children’s father, Mr. Hoang Trong N, who was also the Chairman and legal representative of Company V, eventually challenged Mrs. H’s status. The company sought to void the transfer agreements and remove her from the member list. The legal battle centered on whether a grandmother could unilaterally act as a representative for minor grandchildren in high-value business transactions when the parents were still alive and had not legally delegated such authority. The court of first instance and the High People’s Court both analyzed the case through the lens of the Law on Enterprises and the Civil Code.

The Court’s final judgment was a difficult one for the grandmother. The court declared the capital transfer contracts between Mrs. H and the former members void. The primary reasoning was that at the time of the transaction, the grandchildren were minors and, according to the Law on Enterprises, were not permitted to establish or manage a business in Vietnam. Furthermore, the court found that Mrs. H did not meet the criteria to be established as a legal representative for the children under Article 136 of the Civil Code 2015, as their parents were still alive and held the primary right of representation. Consequently, Mrs. H’s membership in Company V was revoked, and the capital structure had to be adjusted. This case underscores the vital importance of formalizing representation and understanding the limits of a grandparent’s authority in business matters involving minors.

Rights and Obligations of Grandparents under the Law on Marriage and Family

The primary source of rights for grandparents in Vietnam is the Law on Marriage and Family 2014. It establishes the foundational principle that family members must respect and care for one another. Specifically, Article 103 outlines the general duties within the extended family.

Article 103. Rights and obligations between other family members

“1. Family members have the right and obligation to care for, look after, help and respect each other. The lawful personal and property rights and interests of family members as prescribed in this Law, the Civil Code and other relevant laws shall be protected by law.”

This means that the law recognizes a mutual duty of care among all family members, ensuring that grandparents are not isolated and that their contribution to the family is legally acknowledged.

“2. In case of living together, family members have the obligation to participate in family work and labor to generate income; contribute efforts, money or other assets to maintain the common life of the family in accordance with their actual capabilities.”

This provision clarifies that when grandparents live with their children and grandchildren, they are expected to contribute to the household, but this contribution is balanced against their physical and financial capacity.

More specifically, Article 104 of the Law on Marriage and Family 2014 details the unique bond between grandparents and grandchildren.

Article 104. Rights and obligations of paternal grandparents, maternal grandparents and grandchildren

“1. Paternal grandparents and maternal grandparents have the right and obligation to look after, care for and educate their grandchildren, live exemplary lives and set good examples for their grandchildren; in case a grandchild is a minor or an adult who lacks civil act capacity or is unable to work and has no assets to support him/herself and has no caregiver as prescribed in Article 105 of this Law, the paternal grandparents or maternal grandparents have the obligation to nurture the grandchild.”

Essentially, this law gives grandparents both the right and the responsibility to be involved in their grandchildren’s upbringing. If the parents are unable to care for the children, the grandparents are next in line to take over that responsibility, ensuring the child stays within the family circle.

“2. Grandchildren have the obligation to respect, care for and support their paternal and maternal grandparents; in case the paternal or maternal grandparents have no children to nurture them, adult grandchildren have the obligation to nurture them.”

This creates a “two-way street” of legal responsibility, where adult grandchildren must provide for their grandparents if the middle generation (the parents) is absent or unable to help.

Guardianship: When Grandparents Must Step in as Legal Protectors

When parents are deceased, missing, or lose their civil act capacity, the law often looks to grandparents to serve as official guardians. This is a critical area where an attorney for grandparents rights is essential to navigate the Civil Code 2015. Article 46 of the Civil Code defines guardianship as the act of an individual or organization caring for and protecting the interests of a minor or a person with limited capacity.

Article 52. Natural guardians of minors

The law establishes a clear hierarchy for who becomes a guardian when parents are unavailable. Article 52 of the Civil Code 2015 states:

“The natural guardian of a minor… shall be determined in the following order:

1. The eldest biological brother or sister…

2. In case there is no guardian as prescribed in Clause 1 of this Article, the paternal grandfather, paternal grandmother, maternal grandfather or maternal grandmother shall be the guardian; or these persons shall agree to appoint one or more of them to be the guardian.”

If there are no older siblings capable of doing the job, the law explicitly names the grandparents as the next preferred choice for guardianship. This recognizes that grandparents are usually the most stable and loving alternative to parents.

However, being a “natural” guardian does not mean the process is automatic or without requirements. Article 49 of the Civil Code 2015 sets out the conditions for an individual to serve as a guardian:

“An individual who fully meets the following conditions may act as a guardian:

1. Having full civil act capacity.

2. Having good ethical qualities and necessary conditions to exercise the rights and perform the obligations of a guardian.

3. Not being a person who is being examined for penal liability or a person who has been convicted but whose criminal record has not been remitted for one of the crimes of intentionally infringing upon the life, health, honor, dignity or property of others.

4. Not being a person whose rights over a minor child have been restricted by a court.”

In simple terms, to be a legal guardian for a grandchild, a grandparent must be mentally fit, have a good moral character, and a clean criminal record, especially regarding crimes against people or property.

Protection from Abuse and Domestic Violence

Grandparents are sometimes the victims of domestic disputes, often at the hands of their own children or grandchildren. The Law on Prevention and Control of Domestic Violence 2022 provides robust protections. Article 3 of this law (referenced via Article 59 of the Penal Code section in the sources) and other provisions emphasize that preventing violence against the elderly is a state priority.

Article 9. Rights and responsibilities of domestic violence victims

“1. Domestic violence victims have the following rights:

a) To request competent agencies, organizations and individuals to protect their health, life, honor, dignity, and other lawful rights and interests…

đ) To request the person who committed the domestic violence act to overcome the consequences and compensate for damage to health, honor, dignity and property…”

This means if a grandparent is being mistreated, they have the legal right to ask the government for protection and even sue for compensation for the harm they have suffered.

Furthermore, Administrative penalties for mistreating family members are significant. Article 42 of the relevant decree (referenced in the sources) states that obstructing visitation or care between grandparents and grandchildren can result in a fine:

“A fine of between VND 5,000,000 and VND 10,000,000 shall be imposed for the act of preventing the right to visit and care for each other between grandparents and grandchildren; between husbands and wives; between siblings; between parents and children…”

The law ensures that no one can legally stop a grandparent from seeing their grandchild unless a court has specifically restricted that right for safety reasons.

In extreme cases, mistreatment becomes a criminal matter. Article 185 of the Penal Code 2015 (amended 2017) addresses the crime of ill-treating or persecuting grandparents:

Article 185. Crime of ill-treating or persecuting grandparents, parents, spouses, children, grandchildren or fosterers

“1. Any person who treats cruelly or commits acts of violence infringing upon the body of his/her grandparents, parents… in one of the following cases shall be subject to a warning, non-custodial reform for up to 03 years or imprisonment from 06 months to 03 years:

a) Frequently causing the victim physical or mental pain;

b) Having been administratively sanctioned for this act but still committing it.”

This law protects grandparents from repeat offenders, ensuring that those who cause them physical or emotional suffering face jail time or community service.

Inheritance Rights: Protecting the Family Estate Across Generations

Grandparents also have significant rights and roles in the distribution of an estate. Under the Civil Code 2015, they are recognized as legal heirs. Article 651 defines the “at-law” heirs when there is no will.

Article 651. Heirs at law

“1. Heirs at law are regulated in the following order:

a) The first level of heirs comprises: spouses, biological parents, adoptive parents, biological children and adopted children of the deceased;

b) The second level of heirs comprises: paternal grandparents, maternal grandparents, biological brothers and sisters of the deceased; biological grandchildren of the deceased for whom the deceased is the paternal grandfather, paternal grandmother, maternal grandfather or maternal grandmother;”

If a person passes away without a spouse or children, their grandparents are among the primary group (second level) entitled to inherit their property. Conversely, if a grandparent passes away, their grandchildren can inherit in place of their parents through a process called “substitutionary inheritance.”

Article 652. Substitutionary inheritance

“In case a child of a person leaving an estate died before or at the same time as the person leaving the estate, the grandchildren shall be entitled to the share of the estate that their father or mother would have been entitled to if he/she were still alive…”

This is a vital protection. It ensures that if a parent dies young, the grandchildren still receive their fair share of the grandparents’ property, keeping wealth within the family line.

Consider the case of the estate of Mr. Kim S2 and Mrs. Tao Thi S3 in Soc Trang province. When the grandparents died without a will, their estate—including a house and over 1,000 square meters of land—became the subject of a long-running dispute. One of the grandsons, Mr. Tao Lai L, sued to claim his father’s share of the inheritance because his father had died before the grandparents. The court eventually recognized his right to “substitutionary inheritance” under Article 652, highlighting that grandchildren are legally entitled to the legacy of their ancestors even if the middle generation is gone.

Special Rights for Overseas Vietnamese Grandparents

Many Vietnamese grandparents live abroad but still hold interests in property or family matters within Vietnam. The Land Law (as cited in source 4) grants specific rights to people of Vietnamese origin residing abroad.

Article 44. Rights and obligations regarding land use of people of Vietnamese origin residing abroad…

“People of Vietnamese origin residing abroad who are permitted to enter Vietnam are entitled to own houses associated with land use rights in Vietnam; have land use rights by receiving the transfer of land use rights in housing development projects.”

This allows “Viet Kieu” grandparents to return to Vietnam, purchase homes, and maintain a physical presence near their families. Even if they do not reside in Vietnam, they can still inherit the value of properties. As per source 4, if they are not eligible to hold the land title directly, they are still “entitled to the value of the house associated with the land use rights”.

How an Attorney for Grandparents Rights Can Assist

Navigating the Vietnamese legal system requires precision. Grandparents face unique challenges, such as difficulties in verifying historical documents or managing cross-border legal requirements. At Unilaw, our attorneys provide specialized services to address these needs:

1. Representing in Custody and Visitation Disputes: When a family breaks apart due to divorce, grandparents often lose contact with grandchildren. We use Article 104 of the LMF to argue for continued visitation rights, ensuring the child maintains a relationship with their extended family.
2. Establishing Formal Guardianship: If a child’s parents are incapacitated, we help grandparents apply for natural guardianship under Article 52 of the Civil Code, handling the registration with the People’s Committee and, if necessary, the Court.
3. Inheritance and Property Disputes: We represent grandparents or grandchildren in complex succession cases, ensuring that substitutionary inheritance rights are respected and that family estates are divided fairly according to levels of heirs.
4. Domestic Violence Protection: For elderly clients facing abuse, we seek immediate “contact prohibition orders” from the court and work with local police to ensure their safety under the Law on Prevention and Control of Domestic Violence.
5. Handling “Overseas” Elements: For families split between Vietnam and countries like Australia, South Korea, or the USA, we manage judicial entrustment, consular legalization of documents, and cross-border service of process.

For example, in a case involving a husband and wife living in Australia who owed a significant debt for fish feed in Vietnam, the court had to struggle with “judicial entrustment” to notify them of the lawsuit. Similarly, grandparents acting for children abroad must ensure every document is translated and notarized correctly. Article 478 of the Code of Civil Procedure 2015 is very specific:

“Vietnamese courts recognize papers and documents created… by foreign authorities… if they have been consularly legalized.”

Without an experienced attorney, a simple mistake in document preparation can lead to a case being dismissed or delayed for years.

The Duty of Support: When Grandchildren Must Pay it Forward

Grandparents’ rights also include the right to financial support (alimony) from their adult grandchildren if they are in need. This is formalized in Article 113 of the Law on Marriage and Family 2014.

Article 113. Support obligations between paternal/maternal grandparents and grandchildren

“2. Adult grandchildren who do not live together with their paternal or maternal grandparents have the obligation to support their grandparents in case the grandparents have no working capacity, have no assets to support themselves and have no other person to support them as prescribed in this Law.”

This ensures that the “nurturing” obligation described in Article 104 is returned when the roles are reversed. If an adult grandchild avoids this duty, the grandparents (or an authorized representative) can request the Court to force them to pay support.

Conclusion

Vietnamese law provides a sturdy framework for grandparents to remain active, protected, and respected members of the family unit. From the right to educate grandchildren to the right to inherit estates and the right to live free from violence, these provisions are designed to uphold traditional values while providing modern legal remedies. However, as seen in the case of Mrs. H and the Company V dispute, good intentions are not enough—proper legal procedures must be followed to make these rights enforceable. Whether you are seeking to see your grandchildren again, claim an inheritance, or protect yourself from mistreatment, Unilaw is here to be your dedicated attorney for grandparents rights.

Protect your legacy. Protect your family. Contact Unilaw today for a professional consultation tailored to your unique family situation.

• Judgment No. 11/2022/KDTM-PT (Grandmother Mrs. H vs. V Co. regarding capital contribution for minor grandchildren) — Enterprise Law 2014, Art. 18, 47, 48, 53, 54; Civil Code 2015, Art. 136, 138.
• Judgment No. 12/2021/DS-ST and 16/KNPT-VKS-DS (Inheritance of Mr. Kim S2 and Tao Thi S3) — Civil Code 2015, Art. 651, 652; Law on Marriage and Family 1959, Art. 25.
• Civil Code 2015 — Articles 46, 49, 52 (Guardianship), 651, 652 (Inheritance).
• Law on Marriage and Family 2014 — Articles 56 (Divorce), 81, 84 (Child Custody), 103, 104 (Extended Family Rights), 113 (Support).
• Law on Prevention and Control of Domestic Violence 2022 — Articles 5, 9, 26 (Protection and Victim Rights).
• Penal Code 2015 — Article 185 (Cruel Treatment of Grandparents).