Child custody is a very sensitive topic for expatriate families in Thailand. The law dictates that parents have a duty to provide children with a safe and healthy environment.
However, this does not always go smoothly for parents. Disputes often arise in the course of divorce proceedings. It is also possible that one parent will dispute their parental rights although not seeking a divorce.
Custody is an important aspect of child law that determines a person's rights and responsibilities with regard to a child. The concept of custody is different in each country and culture, but generally the Court will decide which parent should have sole or joint parental power.
In Thailand, fathers who have children out of wedlock cannot obtain any parental powers unless they are able to prove that the child is theirs by registering an application for legitimation with the local district office and obtaining consent from the mother. If the father has no such proof, he will not be entitled to any parental duties, including financial support for his child.
A married couple may also have an agreement in which they share custody and parental power. In cases of divorce by mutual consent, the court will usually recognise such an agreement and grant full and joint custody to both parents until the child reaches majority (section 19 CCCT). Visitation rights can be arranged either by the parties or by the court.
A father can obtain custody of a child born out of wedlock in Thailand through the procedure of legitimation. This is done by petitioning a family court to recognize him as the father. Once legitimation is granted, he will be entitled to custody and parental power.
Custody is similar to guardianship in Thai law. However, unlike Common Law where the term “custody” is used in the fullest sense of the word to mean control over an object or property, under Thai law it is a more general term that refers to physical ’guardianship’ of the child.
When a married couple goes through a divorce process with children involved, they can come up with a settlement on how custody and visitation will be shared. This is done through a divorce agreement and is usually registered at the same time as the divorce itself. However, when it comes to a non-married couple or an unmarried father wishing to get custody of his child, the matter is decided by a judge after the divorce.
The mother and father of a child have full custody rights in Thailand, whether they are married or not. However, if the father wishes to exercise partial or full custody rights then he must legally establish paternity. This is accomplished by registering a father's filiation with the child through government registration or by court order.
For a married couple who divorce by mutual consent or uncontested then they may enter into a written agreement that outlines the terms of their divorce including their child custody. This should be signed by two witnesses and registered with the district office when the divorce is filed.
If a custodial parent fails to pay child support then the aggrieved spouse can file at the legal execution department to enforce the debt. Unfortunately Thailand is not a signatory to the Hague Convention on the International Recovery of Child Support and other Forms of Family Maintenance. This means the non-custodial spouse will have limited options to recover the debt abroad.
In Thailand Mothers and Fathers have equal chances of gaining custody of children born out of wedlock. However, for the father to be able to claim parental rights over the child he has to go through a two step process first he has to register the child's legitimisation with the local district office and secondly apply for joint custody of the child. Unless he does this the child will remain illegitimate despite the fact that his name is on the birth certificate.
During the court case the judge will consider the best interests of the child. This could lead to a decision that is different from the parents.
The Thai courts have a three level structure with the Court of First Instance, the Courts of Appeal and the Supreme Court (Dika). All levels are presided over by judges. They are conservative and dignified and expect a high degree of respect from their peers and the public.
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