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In Thai child custody can become very complicated. We have added some of the example in judgments handed down in Thailand. Note that parental powers in Thailand are a bit different in Thailand compared to you home country. Firstly if the parents are not married then the father normally does not have parental power. Lastly the full parental powers will rest with the mother of the child. There are however a number of issues which have been explained below.
Likewise in Thailand we tend to have a few other issues outside of the parental power issues. The most common issue is that of visitation rights. Thai child legitimation and parental power are the next most common issues. There is are a few examples used below to explain how the Civil and Commercial Code in Thailand is used and interpreted in the country.
Most divorces in Thailand would be an administrative divorce. This is where both parties getting a divorce make an agreement on child custody, child maintenance as well as visitation rights and times. During a judicial divorce the court will normally decide this. Child custody in Thailand can be changed but there will need to be special circumstances to bring this about. Where the parent does not take care of the child or where there is criminal activity. This is where they will remove child custody from the parent.
Note also that Thailand is a signatory to the Hague Convention on Civil Aspects of International Child Abduction. There is an article on this on the website. See what the process is for the return of a child that has been abducted by another parent and left for another country.
Firstly Section 1571 outlines the scope of parental power. This includes the management of the child’s property. Note that it management of the property is important and needs the same responsibility as taking care of the child. Likewise also see the annulment of marriage in Thailand for addition information.
The following individuals are considered incompetent or quasi-incompetent:
The following circumstances result in the termination of guardianship:
The guardian may be removed from the post under the following circumstances:
Section 1536
Note that Section 1536 establishes that if a child is born to a woman during wedlock. This or within three hundred and ten days after the marriage’s termination. Thus the child is presumed to be the legitimate offspring of either the husband or the man who was formerly the husband.
Section 1546
Likewise this states that a child born to a woman who is not married to a man. Will be considered legitimate unless otherwise specified by law.
The provisions of section 1536, which stipulate that a child born of a woman while she is a man’s wife or within three hundred and ten days from the date of the termination of the marriage, well be presumed to be the legitimate child of the man who is the husband or used to be the husband. This refers to a child born of a woman while she is a wife, and both men and women have already registered their marriage. Therefore, it is assumed that the child is the legitimate child of the man who is the husband or used to be the husband if the child was born within three hundred and ten days from the legal termination of the marriage of the man and woman who registered the marriage. Judgment of the Supreme Court No. 3670/2529
This section stipulates that if the person exercising parental power is declared incompetent or quasi-incompetent. This or misuses their parental authority concerning the child’s well-being. Likewise engages in serious misconduct. The Court has the authority to, either at its own discretion or upon the request of a close relative of the child or the Public Prosecutor, order the partial or complete removal of parental power.
The issue of determining the grounds for the withdrawal of parental powers. That are not explicitly covered arises when the custodian of the child is not temporarily released, as per Section 1582 of the Civil and Commercial Code. This section specifies that misconduct can be a valid reason for the withdrawal of parental powers. Additionally, the Supreme Court’s judgment No. 2563/254442 shed light on the concept of “evil behavior,” where a person exercising parental power is sentenced to imprisonment for selling drugs, leaving them unable to care for the child for a certain period.
Such behavior refers to actions or conduct that reasonably leads to potential harm or damage to the physical or mental health of a minor child. Also exposing them to risky situations without proper legal guardianship. It is crucial to consider such misconduct when it affects the child’s well-being.
Moreover, when discussing judgments related to integrity or a defendant in a criminal case. The presumption of innocence (until a final verdict is reached) should be observed. It is essential to recognize that individuals accused of offenses and sentenced to imprisonment based on the law are not automatically deemed unfit for parental responsibility. The assumption of innocence remains until a definitive legal decision is made regarding the case. Judgment of the Supreme Court No. 2563/2542
The parents get divorced and the mother has child custody. She decides to give consent to a third person to adopt the child. The question was does she require the permission of the biological father or not. The court ruling below gives you insight into this. Speak to our family lawyer if you are going to adopt a child in Thailand.
When the parents divorced by agreeing to grant custody of the minor child to the mother, the father’s parental authority was consequently relinquished under the Civil and Commercial Code, Sections 1520 and 1566 (6). As a result, the sole parental power now rests with the mother. Therefore, the mother has the authority to give consent for a third person to adopt the minor child independently, without the need to seek court approval on behalf of the father again. Judgment of the Supreme Court No. 2601/2536
The parents live abroad and still have full parental power. Nobody can apply for guardianship for the children in Thailand. Likewise they still have parental power and a guardian cannot be appointed.
Minor children must be under the guardianship of their parents, as stipulated in the Civil and Commercial Code, Section 1566. This rule applies even if the minor’s parents are domiciled in a foreign country. As long as the parental power has not been withdrawn, the court cannot entertain a request for the appointment of a guardian for the minor under the provisions of the Civil and Commercial Code, Section 1585. Judgment of the Supreme Court No. 556/2532
It is not possible for the parents to give guardianship to another without court approval. Even if they consent to this on paper this is not legally enforceable. In Thailand many people leave the children with a family member in the rural areas while they work in Bangkok. Those looking after this children in the rural areas do not have parental power even with consent of the parents.
The plaintiff was the defendant’s wife without marriage registration, and they have one minor child together, a young girl. According to Section 1546, the minor is the legitimate child of the plaintiff, and thus, the plaintiff is the sole legal custodian of the girl. On the other hand, the defendant, as an illegitimate father, has no jurisdiction over the minor.
The plaintiff made a memo stating that the minor was under the custody of the defendant’s sister, but this arrangement holds no legal effect. Legal guardians can only be appointed through a court order or by mutual agreement of the parents under Section 1566 (6). In this case, only the defendant’s sister is mentioned as the custodian, and there is no indication that the plaintiff has waived her parental power over the minor child.
Furthermore, neither the law nor the provisions of the Civil and Commercial Code allow a father or mother to surrender the exercise of parental power to another person. Likewise, since the plaintiff, who is the mother, is still exercising parental power, and the defendant, as an illegitimate father, has no such rights, the defendant has the duty to send the minor to the plaintiff.
Given that the defendant is not the legitimate father and lacks jurisdiction over the minor, any claims by the defendant regarding the exercise of parental rights would not be valid. The defendant has no authority to counterclaim the court’s judgment, as the court has already recognized the plaintiff as the sole user of parental power over the minor child Judgment of the Supreme Court No. 3484/2542
As explained above. In Thailand is it very common for one person usually a family member is left to look after the children in the Thailand. This is very common and everyone knows someone who has been raised by their aunt, uncle or grandparents. This care however does not give them parental power no matter how long they have looked after the child. They also have no right to choose the guardian.
The child, therefore, does not belong to the parents, and they cannot simply transfer ownership to other people. In the event of the father’s death, a child may be considered legitimate or illegitimate, depending on the circumstances. However, it is crucial to note that if the mother has not been deprived of parental power, she remains the one who holds and exercises power over the child. Regardless of how much time and money other people may have invested in the child’s care and sponsorship, it does not grant them the right to be appointed as the child’s guardian. Judgment of the Supreme Court No. 2076/2497
You cannot appoint a guardian while the parents are still alive and have not had their parental custody removed. The case below shows that a divorce by consent where they decided to appoint the mother as sole holder of parental control. This cannot be changed later without a court order.
The plaintiff registered the divorce from the defendant as husband and wife. This was done by mutual agreement, wherein the defendant, who is the mother, was granted parental power over the minor child. This situation falls under the case where both parents have agreed to grant parental power to one of them, as specified in the Civil and Commercial Code Section 1520, paragraph one, in conjunction with Section 1566(6) and Section 1585, paragraph one.
According to the law, a minor’s guardian can only be appointed when the minor has no parents or when the parents have been deprived of parental power. Since the defendant, who is the mother, already exercises parental power over the minor child, the plaintiff cannot appoint a guardian again. As a result, the plaintiff has no right to sue for joint parenthood with the defendant under Section 1590 of the Civil and Commercial Code. Judgment of the Supreme Court No. 4990/2537
The parents are not married and made an agreement regarding the child. This agreement is invalid as the father is the illegitimate father and does not have the right to have made the agreement in the first place. The agreement is void and cannot be enforced.
The defendant and the plaintiff, who lived together as husband and wife without a marriage registration, agreed to separate and jointly made a memorandum of agreement to take care of their minor children. However, the plaintiff is not the legitimate father of the minor child and therefore lacks the rights and duties of a father.
As a result, any disputes regarding the custody of the minor children between the plaintiff and the defendant would not exist. Consequently, a memorandum to settle disputes concerning minor children cannot be made, as it does not qualify as a compromise agreement under the Civil and Commercial Code, Section 850. Hence, the plaintiff cannot sue to compel the defendant to comply with such a memorandum. Judgment of the Supreme Court No. 7473/2537
Section 850 defines a compromise as a contractual agreement where the parties involved resolve a dispute, whether it is an existing one or one that is anticipated, through mutual concessions.
These are the practical examples of child custody in Thailand. Should you have any questions about your situation then speak to our family lawyer in Bangkok or Thai divorce lawyer for more assistance.
