Parents and Children – Custody and Parenting Law in Thailand

By Joe Lynch, Accredited Australian Family Law Specialist 

Lanna Lawyers, Chiang Mai, Thailand

Email: lynchlaw.net.au@gmail,com

http://thailandintrigue.blogspot.com/

Jurisdiction and Forum                                      

This article deals primarily with the Thai law relating to parents and children and disputes concerning parenting issues.  The focus is on relationships where one party is a Thai national and the other is a foreigner.  In those circumstances, it is crucial that professional legal advice be sought as to what country or countries have jurisdiction to deal with the issues in dispute and as to which country is the most appropriate forum if both countries have jurisdiction.  There are significant differences in the laws in different countries and there may be tactical and/or practical advantages of choosing a particular jurisdiction or forum having regard to both parenting issues and also property settlement.  The relevant Thai law in relation to conflict of laws involving family law issues is contained in the Thai Conflict of Laws Act Division V sections 18 to 36.

Common Law Principles

In countries such as Australia, the United States, England and Canada the law relating to parents and children has evolved from the Common Law.  In those countries the traditional terms used were Guardianship, Custody and Access.  Guardianship referred to the right of a parent to have responsibility for long-term issues concerning a child's welfare, including issues relating to health, education and religion.  Custody referred to the right to have day-to-day responsibility for the care of a child.  Access referred to the visitation rights of a child to see or spend time with his or her parent where the child was in the custody of the other parent.

In most countries the common law has been replaced with statutory codes setting out the respective rights and obligations of parents and children.  The focus has changed from that of parental rights to parental responsibility and in most codes the focus is now on children's rights.  The terms that are broadly used are now those of parental responsibility, involving responsibility for both day to day and long-term care of a child and the right of a child to know and be cared for by each of his or her parents.  The concept of access came to be referred to as visitation rights, access, and contact and, in some jurisdictions, as spending time with a parent.  In most jurisdictions the statutory codes also empower the Courts to make orders on specific issues involving children, such as, healthcare, education and the like.  A universal concept in all family law codes is the paramouncy of the principle of making determinations on parenting issues that are in the best interests of the child.

In Thailand the Common Law principles do not apply and there is a statutory code contained in the Thai Civil and Commercial Code relating to the relationship between parents and children.  Specifically, sections 1536 to 1584/1 set out the law relating to the parent and child relationships.

Thai Law relating to Parents and Children

Parental Powers

The primary concept in relation to parents and children under Thai law is that of Parental or Parenting Powers.  Parenting Powers are the rights exercised exclusively by parents to care for and be responsible for a child.  There is no specific definition of parenting powers although this expression appears in many of the sections of the Code relating to parents and children.  For example, there are references to “parenting powers” in sections 1549, 1551 and 1567 of the Code.

Section 1567 provides that "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.

Section 1571 provides that the term ‘parental powers’ includes the management of the property of the child.

Parenting powers also have limitations.  Section 1574 provides that a person exercising ‘parental powers’ cannot enter into some juristic acts, often related to immovable property, like mortgaging property, creating a usufruct interest, superficies interest, or hiring (leasing)  of property without the permission of the Court.

Section 1556 provides that that only one parent shall exercise the ‘parental powers’ in 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.

Section 1568 provides "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.

Parental Obligations and Responsibilities

Under Thai law, "Children are bound to maintain their parents" (Section 1563) and "parents are bound to maintain their children and to provide proper education during their minority.” (Section 1564).

Parental obligations or responsibilities can continue even after 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 (section 1564).  In Thailand i20 years of age is the age of majority (section 19).

In whom are Parental Powers Vested?

In most Western countries, both parents of a child have equal rights and responsibilities. Under Thai Law, this is not necessarily the case.  Under Section 1546, when a child is born and the mother is not married to the father, the mother is the sole person who exercises parental powers over the child to the exclusion of the father.

This is the case notwithstanding that the father may be described on the child’s birth certificate as the father or that the father can prove, for example, by DNA testing that he is the biological father.

There are three exceptions to this referred to in section 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 of the Court.

The first exception is self-explanatory.

The second exception is more complex: Both parents must agree in writing that the father is the legitimate father, however, the local authorities (Amphur or Khet in Bangkok) will normally require the child to have reached the age of reason, seven or eight years, and be old enough to understand and accept what is happening.

If the child is younger and there is an attempt to register the father's rights at the amphur, the applicant is often told that it is necessary to obtain a Court Order before it is possible to legalise the rights of the father.  Once a court order is obtained and the appeal time, 30 days, has expired it is then possible have the father recorded as the legal father on record thus giving him parental powers. 

In order to come within the third exception is necessary to commence an action in a Thai court to “legitimise a child under a Thai law".

Unmarried parents can make a simple agreement between them in relation to their respective rights and responsibilities in relation to a child but the agreement will not be enforceable by Law.  In Supreme Court case 7473/2537the plaintiff and the defendant cohabited as husband and wife but did not register their marriage. They had one child together, namely, Yor.  However, under Thai law, the plaintiff was not the legitimate father of Yor and had no rights or obligations in respect of the child.  The mother and the father made an agreement that Yor live alternately 2 weeks with each parent. The Supreme Court found that the mother had full and sole parental powers. The Court determined that the agreement could not be enforced pursuant sections 850 following sections of the Thai Civil and Commercial Code. Therefore, the plaintiff was not able to require the defendant to comply with the agreement. If the father of a child who is not married to the mother wants to acquire rights over a child by law, he must do so in accordance with section 1547 of the Thai Commercial and Civil Code.

If the parents of a child are married in Thailand they both have full parental powers.  If they decide to send the child to the United States to study with an uncle then the uncle will have day-to-day responsibility for the child but the Thai parents remain responsible for making decisions concerning the child and exercising or other parental powers.  Accordingly under section 1567 the parents could at any time in the exercise of parental powers require the child to be returned to Thailand.  Of course, an issue as to jurisdiction and forum might arise and it is possible that a court in the United States might have power to determine a dispute between the parents and the uncle under United States law. (See the Hague Convention on the Civil Aspects of International Child Abduction to which both Thailand and the United States are signatories).  This is an example of why the question of jurisdiction and forum should be looked at at an early stage and appropriate advice obtained if there is to be a dispute concerning responsibility for a child or children. 

Disputes between Parents as to Parenting Issues

If the parents of a child who both have full parental powers separate they are able to reach agreement as to the future care arrangements for the child.  If however there is a dispute between them either party is entitled to refer the matter to the Court for determination.  As is the case in most jurisdictions around the world the best interests of the child is the primary consideration in all Court determinations about children. If the parents cannot agree on the matters relating to the care of a child the Thai Court will base its decision on what it the judge determines to be in the best interests of the child.

Section 1520 of the Thai Civil and Commercial Code enshrines the “best interests “principle in providing that a court must make a determination in a dispute concerning the care of a child

"by taking into consideration the happiness and interests of the child."

Of course the best interests of a child may differ from the interests of a parent.

In making a determination as to the allocation of parental powers the Court will also take into account the best interests of the child in determining what time the child is to spend with the parent who does not have the day-to-day care and responsibility for the child.  Such an order is referred to variously as visitation, access and contact rights or simply the right of the child to spend time with a parent.

If agreement is reached as to parenting issues it is crucial that the terms of the agreement and/or Court order be as explicit as possible so as to ensure, firstly, that the  agreement or order is enforceable and, secondly, that disputes do not arise as to the implementation of the agreement or order.

If both parents were married when the child was born, and their names appear on the birth certificate, 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, in theory, ask the police to get the child back. But, in practice, the police will not interfere in family matters and they often tell the parent to take the dispute to the Court. Again, the Court will decide the issue in dispute according to what it determines to be in the best interests of the child.  The Court will also determine as to who should have physical responsibility for the child, what visitation rights the child should have to see the other parent and as to whether maintenance for the child should be paid by one parent to the other.

If parents divorce by mutual agreement, they must specify in their agreement who will exercise parental powers and custody. It could be one or both of them and, If they cannot agree, the Court will decide according to section 1520 which provides:

“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.”

In cases of divorce by judgment of the Court, the Court hearing the divorce case will also make orders in respect of the parental power over each of the children to be exercised by each party. . If it is deemed proper to deprive a parent of parental power under Section 1582, the Court may make an order depriving that parent of parental power 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 mother had registered their divorce and agreed that the mother would have sole "custody" of the child. Therefore, it was an agreement made according to sections 1520 and 1566 paragraph 2 (6) of Civil and Commercial Code. The Court had Court no reason to revoke parental powers of the father. Therefore, upon the death of the mother, the father had full and sole parental powers in accordance with section 1566 paragraph (1) unless the parent powers of the father had been revoked by the court.

In Supreme Court case 2076/2497; the court decided that (normally) parental powers cannot be transferred. 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 would not be unable to transfer such powers to another party.  Similarly, another party cannot acquire these rights unless the parental powers of the mother are revoked or the Court assigns them to a third party.

If the parents have already made an agreement or if a final judgment 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.  This decision is consistent with those of courts in other jurisdictions, for example, the courts in Australia have determined the parenting arrangements cannot be revisited unless there is a significant change in circumstances warranting it.

Section 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 a 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 was the mother, would exercise full and sole parental powers in respect of the child. The agreement was made under section 1520 (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 exercised alternately, for example, a child can live one semester with one parent and then another semester with the other one. An example of that is found in theSupreme 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 in 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 his defence the defendant sought exactly the opposite. The Court found that the plaintiff left the house of the defendant because of arguments and took the child. Afterwards, the defendant brought the child back.  The court determined that the plaintiff had not abandoned the child.  Additionally, the plaintiff contacted  the child's school which, it concluded, showed that the plaintiff loved and cared for the child. The Court did not believe that the plaintiff illegally exercised any parental powers or committed acts of bad behaviour. The Court found that it was in the best interests of the child to spend time with both parents. Therefore, in that case, it was decided that the plaintiff should exercise physical custody in the first semester of each year and the defendant should exercise physical custody in the second semester of each year until the child reached the age of majority.

Action to legitimise a child in a Thai Court

A person named as the father on the birth certificate of a child, but who was not married to the mother at birth can apply to legitimise his rights as father using section 1555. This section provides

“An action for legitimation may be entered only in the following cases:

(1)  Where there is a rape, abduction or illegal confinement of the mother during the period when conception could have taken place;

(2)  Where there has been elopement or seduction of the mother during the period where conception could have been taken place;

(3)  Where there is a document emanation from the father and acknowledging the child as his own;

(4)  Where it appears in the birth register that the child is a son or daughter of the man who notified of the birth, or such notification was made with the knowledge of the man;

(5)  Where there has been open cohabitation of the father and the mother during the period where conception could have been taken place;

(6)  Where the father had sexual intercourse with the mother during the period when conception could have been taken, and there are grounds to believe that he or she is not the child of another man;

(7)  Where there has been a continuous common repute of being a legitimate child.

There status resulting from continuous common 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 or 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 usually six steps for such an action:

1. A petition must be filed with the Court
2. A counsellor will be appointed by the Court to examine and report on the background of both spouses, separately. This report is filed in the Juvenile Division and it is not presented in open Court, and lawyers are normally not permitted to be present.
3. Mediation will then take place between the parties before a trial.  If agreement is reached it is recorded in writing, signed by the judge and then takes effect as a Court Order.
4. If the parties cannot reach agreement the matter proceeds to trial before a judge
5. Upon completion of the hearing the judge will deliver his or her Judgment
6. The Court Order, arrived at by judicial determination or by agreement between the parties is been registered at the Amphur office.

Upon completion of the successful legitimisation hearing each parent will then jointly have full parental powers.  If the relationship has come to an end is then necessary to reach agreement as to arrangements to be made for the child or, alternatively, proceed to a hearing of the parenting dispute.

 There is therefore a two-step process involved:

A) Legitimisation proceedings

B) Determination of parenting issues.

It is possible that both steps are to be completed within the same hearing.  At that time the judge can also make a determination as to visitation rights, payment of child maintenance and other specific parenting issues.

Guardianship

Section 1585 defines "Guardianship under Thai Law" as follows:

"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."

A Guardian can replace a parent and be granted authority to exercise parental powers.  By will in Thailand, a testator can also appoint a "controller of property". The controller of property is a person who is appointed to manage the assets given to a child until the child reaches majority, 20 years of age, according to section 1686 and The Thai Civil and Commercial Code (Book VI - Succession). The controller of property can be someone other than the parents, the guardian, custodian, or curator. (Section 1687).

PARENTAL POWERS UNDER THAI LAW

Here are some of the relevant Sections regarding 'parental powers' under the Thai Civil and Commercial Code:

Section 1538 
“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”

Section 1546
“A child born of a woman who is not married to a man is deemed to be the legitimate child of said woman.”

Section 1547
“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."

Section 1560
“The child born during marriage is deemed to be legitimate, even though the marriage has been subsequently cancelled.”