15th January 2010.By Sebastian H. Brousseau, LLB, BSc, Managing director of Isaan Lawyers.With the help of Mr. Terdpong Fuangfoovongrath and Miss Uraiporn Namprakhai, Thai attorneys.
Isaan Lawyers has recently dealt with made cases involving custody, with Thai or Foreign parents, concerning a divorce or for legitimization of the Father's rights over a child. Information about custody in English is rare. We hope that this article will help you to understand the legal side of custody in Thailand. This article is about THAI LAW. Custody in other countries will have different rules.
The following text is aimed to give you general information about custody of children in Thailand. We have included clauses of the Thai Commercial and Civil Code and Supreme Court judgments. Don’t hesitate to communicate with us should you have any further questions or inquiries.
We start this article explaining custody of children in Thailand by defining some of the terms used in such cases, notably "parental powers'", "custody" and "visitation rights", because people often confuse them. Not all jurisdictions use the same terms in the same way and, therefore, we must use terms as they are found in Thai Civil law or in judgments from the Thai Courts.
In Common Law (Australia, UK, USA, etc.), the term "custody" could be confused with "parental powers". But under Thai law, there are other terms, like "guardian" or "controller of property", that could apply.
Parental powers are the rights AND obligations exercised exclusively by the parents to raise a child. A parent or both parents having parental powers will have the right to make all the decisions concerning a child, including, for example, choices regarding religion or education. In return, parents have an obligation to provide physical, moral and emotional health to the child. Parental powers in Civil Law are WIDER than terms like 'custody'. We will see later that under Civil Law, 'custody' may apply only in matters where the parents are parents are physically present but under Civil Law, the parent or parents can be away from a child and still have ‘parental powers” (or ‘parental authority’).
The term "parental powers" appears in several clauses of the Commercial and Civil Code of Thailand (CCCT), including clauses 1549, 1551, etc. Clause 1567 explains some meanings of this term:
"A person exercising parental power has the right:
1. to determine the child's place of residence
2. to punish the child in a reasonable manner for disciplinary purposes;
3. to require the child to do such work as may be reasonable to his ability and condition in life;
4. to demand the return of the child from any person who unlawfully detains him.
According to clause 1571 CCCT, the term ‘parental powers’ includes the management of the property and the child.
‘Parental powers’ also have limitations. According to clause 1574 CCCT, a person exercising ‘parental power’ cannot enter into some juristic acts, often related to immovable property, like mortgaging a property, creating a usufruct, superficies, or hiring of property (renting) without the permission of the Court.
Clause 1556 of CCCT mentions that only one parent should exercise the ‘parental powers’ under the following cases:
1. The Mother or the Father is deceased;
2. It is uncertain whether the Mother or the Father is living or deceased;
3. The Mother or the Father has been adjudged incompetent or quasi-incompetent
4. The Mother or the Father is placed in a hospital by reason of mental infirmity
5. The parental power has been granted to the Mother or the Father by an order of the Court (example, a divorce judgment)
6. The Mother and Father have come to such agreement as provided by the law that it can be made.
And clause 1568 (CCCT) states that "where a person who already has a child marries another person, the parental power over such child is exercised by the former person." In other words, marriage does not grant the spouse any rights over the children of their new Husband or Wife.
Example of a birth certificate, modified.
In Thailand, "Children are bound to maintain their parents" (Clause 1563 CCCT) and "parents are bound to maintain their children and to provide proper education during their minority.” (Clause 1564 CCCT).
Parental obligations or responsibilities can continue even after their children become adults: " When children are sui juris (adult), parents are bound to maintain them only when they are infirm and unable to earn their living (Clause 1564 CCCT in fine).
Do note that the majority in Thailand is reached at 20 years of age. (Section 19 CCCT).
Custody normally refers to the charge and control that a person has over an item or property. A child is not an object, and under Thai Law "custody" refers to the physical 'guardianship' of the child.
But look how Common Law explains "custody":
"In Hewer v Bryant, a 1970 English case, quoted in Read v Read (Alberta, Canada), the British Court used these words: "In its wider meaning, the word custody is used as if it were almost the equivalent of guardianship in the fullest sense whether the guardianship is by nature, by nurture, by testamentary disposition, or by order of a court.
"I use the words fullest sense because guardianship may be limited to give control over the person or only over the administration of the assets of an infant.
"Adopting the convenient phraseology of counsel, such a guardianship embraces a bundle of rights or, to be more exact, a bundle of powers which continues until a male infant attains (the age of majority) or a female infant marries. These include the power to control education, the choice of religion and the administration of the infant's property. They include entitlement to veto the issuance of a passport and to withhold consent to marriage. They include, also, both the physical control of the infant's personal property until the infant attains years of discretion...." (From Duhaime.org)
So, in Common Law, the term custody is similar to "Parental Powers" in Civil Law. But, under Thai laws, as the following example makes clear, the two terms differ in application.
Father "X" and Mother "Y" are married in Thailand and have a child named "Z". They both have full parental powers. They decide to send "Z" to America, to study with his uncle. So, the uncle will have physical custody of the child. But the Thai parents, in Thailand, are still the ones making all the decisions concerning the child. There can be an agreement (verbal or written) to delegate to the uncle certain rights and/or obligation. But the uncle doesn't have parental powers. He only has physical custody of the child but not parental powers. According to clause 1567 in fine, the person exercising parental powers could ask the child to return to Thailand.
This expression is easier to describe. It refers simply to the rights that someone has regarding contact – or ‘visitation’ - with a child. In a divorce, where one parent is awarded full and sole custody and/or parental powers, the other, non-custodian parent is normally given certain visitation rights, by agreement or by the Court.
Both parents making an agreement about visitation rights should try to be as precise as they can. So, for example, if it is stated that a parent will be granted visitation rights once per month, the agreement should also include details such as where and when the child can be taken, for how long, and when and where they must be returned, etc.
In the past, we have seen agreements where a parent has 'abused' the agreement because the terms were not sufficiently exact. In forming the agreement, it is important to think about various notices and delays or anything else that it would be helpful to include.
Clause 1585 defines "Guardianship under Thai Law":
"A person who is not sui juris (the Latin term for being an "adult") and has no parents, or whose parents have been deprived of their parental powers, may be provided with a guardian during minority."
So, the guardian could replace a parent and be granted authority to exercise parental powers. In a Last Will and Testament in Thailand, you can also appoint a "controller of property". The controller of property is someone who will manage the assets given to a child until the child reaches majority, according to sections 1686 and CCCT (Book VI - Succession). The controller of property can be someone other than the parents, the guardian, custodian, or curator. (clause 1687 CCCT).
The best interests of the child is the main criteria for all decisions taken about children. If the parents can't agree on the matters of education, custody or religion, the Thai court will base its decision on what it judges to be the best interests of the child.
This concept is also used in many countries. You can see it clearly in section 1520 in fine of the CCCT:
"by taking into consideration the happiness and interests of the child."
The interests of the child could different from the interests of a parent.
In most Western countries, the Mother and Father of the child get equal rights and obligations. Under Thai Law, this isn't the case. According to section 1546 of CCCT, when a child is born and the mother is NOT married to the father, the father has no LEGAL RIGHTS over the child. Only the mother has rights (and obligations) over the child.
A person could be named on the birth certificate as the father, but his rights are NOT legalized under Thai law. Even with a DNA test, he could be the father on the birth certificate and be the biological father, but he won't be the LEGALIZED FATHER.
There are 3 exceptions mentioned in article 1547:
1. If there is a subsequent marriage between the parents
2. If there is a registration made at the amphur
3. If there is a judgment by the Court.
Exception one is easily understood.
Exception Two is more complex: Both parents must consent that the Father is the legitimate Father and the local authorities (Amphur or Khet in Bangkok) will normally require the child to be old enough to understand and accept this situation.
In Thailand, each registration office is different and they often do not apply the same rules. However, they will normally legalize the Father ONLY when the child is over 7 years-old, able to sign his name, able to consent, and all parties will have to give their consent to the local registration office.
If the child is younger and there is an attempt to register the Father's rights at the amphur, the applicant is often told to get a judgment from the Court before it will be possible to legalize the rights of a Father. After a Court decision is rendered and, if it is positive, becomes enforceable (after 30 days), it is then possible to use the judgment to legally register the parent’s rights at the amphur.
Exception Three: Re a judgment by the Court, see the section below called "action to legitimate a child under a Thai Court".
Unmarried parents can make a simple agreement between them related to custody but the agreement won't be enforceable by Law. An example is the Supreme Court judgment 7473/2537. In that case, the plaintiff and the defendant cohabited as husband and wife but did not register their marriage. They had one child together, namely; Mr. Yor. According to Thai Law, the plaintiff is NOT the legitimate father of Mr.Yor and has no rights or obligations (duties) over the child. It is clear that the mother has FULL and SOLE parental powers. But the plaintiff and the defendant made a settlement agreement stating that Mr. Yor shall live alternatively 2 weeks with each party. The Supreme Court stated that this agreement cannot be effected pursuant sections 850 and following of Civil and Commercial Code. Therefore, the plaintiff cannot enforce the defendant to comply with such an agreement.
If the Father of a child who is not married to the Mother wants to accquire rights over a child by LAW, he must do it according to section 1547 of the Thai Commercial and Civil Code.
Here are some of the relevant clauses regarding 'parental powers' under Thai law:
“In a case where the man or the woman has made a marriage against section 1452, a child born during such a marriage shall be presumed to be the legitimate child of the Husband who has his last marriage entered into the Marriage Register”
“A child born of a woman who is not married to a man is deemed to be the legitimate child of said woman.”
“A child born of the parents who are not married to each other is legitimated by the subsequent marriage of the parents, or by registration made on application by the Father, or by a judgment of the Court."
“The child born during marriage is deemed to be legitimate, even though the marriage has been subsequently cancelled.”
Now, if both parents were married when the child was born, and their names appear on the birth certificate, then BOTH exercise JOINTLY their parental powers. The Father has the same rights as the Mother. And if one parent takes the child away, the other parent can certainly, in theory, ask the police to get the child back. But, in practice, the police will not interfere in family matters and they might tell the parent to address a request to the Court. Again, the Court will decide according to what it judges to be in the best interests of the child. To be with the mother? To be with the father? Who should have physical custody and should the other parent have visitation rights and / or provide alimony for the child?
If parents divorce with mutual agreement, they should specify in their agreement who will exercise parental powers and custody. It could be one or both of them. If they can't agree, the Court will decide according to section 1520 CCCT:
“In case of divorce by mutual consent, the spouses shall make an agreement in writing for the exercise of parental power over each of the children. In the absence of such agreement or an agreement thereon cannot be reached, the matter shall be decided by the Court.”
Now, if you divorce in Court, without a mutual agreement, section 1520 in fine will apply:
"In case of divorce by judgment of the Court, the Court trying the divorce case shall also order that the parental power over each of the children belong to any party. If, in such trial, it is deemed proper to deprive that spouse of the parental power under Section 1582, the Court may give an order depriving that spouse of the same and appointing a third person as a guardian, by taking into consideration the happiness and best interests of the child."
In Supreme Court case 2563/2544, the Father and the Mother had registered their divorce and agreed that the Mother would have sole "custody" over the child. Therefore, it was an agreement made according to sections 1520 and 1566 paragraph 2 (6) of Civil and Commercial Code. The Court has no reason to revoke parental powers of the Father. Therefore upon the death of the Mother, the Father shall have full and sole parental powers according to 1566 paragraph (1) unless the parent powers of the Father are revoked by the court.
In the Supreme Court case 2076/2497, it is said that you cannot (normally) transfer parental powers. For instance, if the Father either dies or has been declared an illegitimate Father, the Mother has full and sole parental powers. In that case, she won't be unable to transfer such powers to another party. Likewise, another party cannot get these rights unless parental powers are revoked from the Mother or the Court assigns them to a third party.
If the parents have already made an agreement or if a final judgment about divorce allows full and sole parental powers to one of the parents, it will be difficult for a Court to change that. A party will have to show that there are new circumstances or new evidence showing that it is in the best interests of the child to change the present situation.
Clause 1521 of the Civil and Commercial Code states:
"If it appears that the person exercising parental power of the guardian under Section 1520 behaves himself or herself improperly or there is a change of circumstances after the appointment, the Court has the power to give an order appointing a new guardian by taking into consideration the happiness and interests of the child."
An example where the Court refused to interfere in an previous agreement can be found in Supreme Court judgment 4990/2537. In that case, the plaintiff and the defendant registered their divorce and agreed that the defendant who is the mother has full and sole parental power over the child. The agreement was made under section 1520 paragraph 1 and 1566 (6) of Civil and Commercial Code. Therefore the mother had been given full and sole parental powers and the court refused to change it and refused to appoint the plaintiff as custodian.
Under Thai Law, physical custody of a child can be done alternatively. For example, a child can spend one semester with one parent and then another semester, with the other one. An example of that is found in the Supreme Court judgment 2593/2533. In that case, the plaintiff and the defendant had registered a divorce by mutual consent but there was no agreement about the parental powers over their 3 year old child. The child was under the care of the defendant, and later on, the defendant remarried. The plaintiff filed a complaint to revoke the parental powers of the defendant and asked the court to grant full and sole parental powers to the plaintiff. In defense, the defendant asked exactly the opposite. The Court stated that the plaintiff left the house of the defendant because of some arguments and took away the child. Afterwards, the defendant took the child back. Hence it shall not be deemed that the plaintiff abandoned the child. On top of that, the plaintiff contacted a school which showed that the plaintiff loved and cared about the child. The Court could not believe that the plaintiff illegally exercised any parental powers or committed acts of bad behavior. The Court believed that it was in the best interests of the child to have contact with both parties. Therefore, in that case, it was decided that the plaintiff should exercise physical custody every first semester of each year and the defendant should exercise physical custody every second semester of each year until the child reached the age of majority.
If you are named as the Father on the birth certificate of the child, but you were not married with the Mother at birth, and you didn't marry her after the birth, you can still legitimize your rights as father using section 1555 of CCCT. This clause mentions:
"An action for legitimization may be entered ONLY in the following cases:
(3) There is a document emanating from the Father and acknowledging the child as his own;"
(4) Where it appears on the Birth Register that the child is a son or daughter of the man who made the notification of the birth, or such notification was made with knowledge of the man
(6) Where the Father had sexual intercourse with the Mother during the period when conception could have taken place, and there are grounds to believe that he or she is not the child of another man;
(7) Where there has been continuous common repute of being a legitimate child.
The status resulting for common continuous repute of being a legitimate child is established by means of facts showing the relationship of Father and child, as evidenced by the child's connection with the family to which he claims to belong, such as the fact that the Father has provided the child's education and maintenance, or that he has allowed the child to use his family name or other facts.
In any case, if the man is found unable to be a father, the case shall be dismissed."
There are normally 6 steps for this kind of action:
1.A petition should be given to the Court
2 A kind of social worker will examine the background of both spouses, separately, to make a report for the Court. This report is filed with what is called the 'juvenile division', it is NOT presented in front of the Court, and lawyers are normally not allowed to be present.
3.A negotiation session between the parties will be the first step in Court before a trial. It's normally done in front of a mediator and if the parties agree, this agreement will be signed by a judge and will have the same value as a judgment.
4.If parties can't agree, there is a trial in front of the judge.
5.The judge will rend a decision.
6.Rights will be registered at the local authority following an agreement or a judgment.
Plaintiffs in such cases must understand that here the issue is the legitimization of a child, or the recognition of your rights. That will grant you joint custody. However, if you want full custody or want to modify the joint custody, there will be a process in 2 steps:
A) Legitimization of your rights, (and once this is done, you can request a..)
B) Decision about the custody.
Depending where you apply, and how it is done, in some places the 2 steps A and B will be combined. Also, if there is a settlement in Court, if parties reach an agreement, the agreement will often recognize parental powers of parents, will define who will get physical custody, add visitation rights and alimony. So, you basically settle all the relevant issues at the same time.
We have done cases where a simple decision of the Court was granting A + B at the same time.