Child custody is a key issue that arises for married couples or unmarried parents with children in Thailand. The best interests of the child is the primary consideration in all decisions.
Custody in common law refers to the charge and control that a person has over an item or property. In Thai Law, the term is more closely associated with “guardianship” in its fullest sense.
Sole Custody
In this model, all parental rights and responsibilities fall under the sole control of one parent. This allows them to make pivotal decisions regarding the child’s life, including their primary residence, education, religious upbringing, and moral guidance.
This is the most common arrangement in Thailand. In fact, it is the default position when a married couple divorces or they decide to separate.
For unmarried couples, however, this is not always the case. According to Article 1546 of the Thai Civil and Commercial Code, a father is not recognized as the legitimate father of a child born out of wedlock.
To change this, a father must file for the child’s legitimization in court. This is often done together with custody proceedings. During this process, the court will assess whether the father is suitable to exercise partial or full custody over the child. It will also determine if he is capable of providing financial support. This is important as there is no social welfare department in Thailand to provide financial assistance to single mothers.
Joint Custody
Child custody is one of the most complicated issues that can arise during a divorce case. It encompasses both the legal and physical responsibilities of raising a child. It’s also important to understand that in Thailand, both parents have equal rights to a child.
In cases where both parents want custody, the court will decide what is in the best interests of the child. This will be based on several factors including the child’s age, parent-child relationship, each parent’s financial stability, and any history of abuse or neglect.
In most Western countries, the mother and father get equal rights. However, under Thai law, this is not the case. Unless the father formally legitimizes himself with the local district office, only the mother will have rights to the child (clause 1546 of CCCT). However, this does not stop a father from requesting custody rights if paternity is established by the court. If both parties agree, they can also enter into a settlement agreement with the help of a mediator. This will then be registered with the court as a judgment.
Visitation Rights
A married couple in Thailand can decide by mutual consent or through the court in a divorce to share custody of their child. However, the agreement must be in writing and registered at the district office at the time of registering the divorce. It can also cover other issues such as visitation rights and child support.
For a child born outside of marriage, the mother will normally have sole custody. If a father wishes to exercise custody rights he must first be considered the child’s legitimate father. This is achieved by registering a legitimization of the child at a local district office, and the mother must consent to this.
However, this is a very complex issue and if you are considering having a Thai child with a foreign partner then you should seek legal advice as soon as possible. In general, Thailand family courts will use the ‘best interests of the child’ as a major policy concern in any case involving children.
Biological Father’s Rights
If a child is born to a mother who is not married, the father has no legal rights to the child even if his name is on the birth certificate (clause 1547 of the Civil and Commercial Code). A man must petition for legal paternity or legitimation of the child in order to acquire custody rights.
In a divorce case, a couple can agree to share custody and/or visitation rights in their separation agreement. However, this agreement must be approved by the court.
The judge in a child custody case in Thailand must decide what is in the best interests of the child. This can be influenced by the parents’ wishes, or it may be based on evidence presented to the court such as DNA test results, photographs of the father and mother together, witness statements confirming the father’s role in the pregnancy, and/or evidence that the father has paid for education and maintenance for the mother.
