Child Custody

According to Thai civil and commercial law, child custody or parental authority is exercised by the father, mother or a third party who is the legal guardian of the child until the child reaches the age legal which is twenty years. A person exercising parental authority has the following rights:

The holders of parental authority vary whether the parents are married or not. Indeed, if the parents are married, the holders of parental authority are both parents with full custody of the child. On the other hand, if the parents are not married and the father has not recognized filiation with the child, only the mother has parental authority and custody of the child.

When a child is born during marriage, it is presumed to be the legitimate child of the husband. Likewise if the child is born 310 days after marriage, the former husband is presumed to be the father of the child. Concerning the mother, the child is automatically presumed to be the legitimate child of the mother. Therefore, the child born during marriage is considered a legitimate child of the wife and husband. There is indeed a presumption of paternity for any child born during marriage, the husband is presumed to be the father of the child.

In this case, both married parents have full custody of the child and thus exercise joint parental authority. As soon as the spouses wish to divorce, the question of the distribution of custody of the children will arise. It can take place in two ways:

1. If the parents divorce in Thailand by mutual consent or uncontested divorce, and the divorce involves custody of the children in Thailand, the parents may enter into a divorce agreement regarding how custody will be shared between them. In addition, the agreement may also include child visitation and child support. However, for the custody agreement to be valid, it must be signed by two witnesses and registered with the district office at the time of registration of the divorce. In the absence of such an agreement or if an agreement cannot be reached, the matter is decided by the court.

2. If the divorce is granted by the court or if the divorce is contested, the judge in charge of the divorce case will decide on the distribution of custody of the child; otherwise, the judge may appoint a third person as guardian in place of the parents if this order is in the interest and for the happiness of the child. In principle, he or she distributes the custody of the child equally between the parents unless the judge considers it appropriate to deprive one of the spouses of parental authority because of his or her behaviour if he or she has committed a fault or has abused his or her parental power. The decision to withdraw parental authority may be made at the time of the pronouncement of the divorce or at a later date.

The question of the distribution of the custody of the child for a married couple will be settled at the time of the divorce by a divorce agreement if the divorce is carried out by mutual consent or by a decision of the judge once the divorce has been brought before Thai courts.

It should be noted that Article 1546 of the Thai Civil and Commercial Code states that “a child born to a woman who is not married to a man is considered to be the legitimate child of that woman”. A contrario reading of this article, the child is not recognized as the father’s legitimate child. For this purpose, only the mother has parental authority and custody of the child. The father has no rights over a child born out of wedlock.

In order for the father to obtain child custody, he must first be recognized as the legitimate father of the child. It is necessary that this one exercises an action in legitimation to establish the bond of filiation existing between him and his child. When the child is born during marriage, the husband is presumed to be the father of the child. The presumption of paternity is ruled out if the child was born out of wedlock, the father must recognize the child by voluntary action or by marriage.

Indeed, Article 1547 of the Thai Civil and Commercial Code provides three possibilities for establishing parentage between father and child:

The application for registration is one of the means for the father to have filiation with his child recognized. The procedure is provided for in article 1548 of the Thai Civil and Commercial Code. It is a non-contentious procedure but requires the consent of both the mother and the child.

If the child and the mother do not appear before the clerk to give their consent, the clerk notifies the child and the mother of the father’s application for registration. If the child or the mother does not raise any objection or does not give their consent within sixty days of the notification, it is presumed that the child or the mother does not give his or her consent. The time limit is extended to 180 days when the child and mother have stayed outside Thailand.

Thus, the silence kept by the mother and the child does not constitute acceptance and is assimilated to a refusal to establish the parent-child relationship between the father and the child. In this case, the registration for legitimization cannot be made with the clerk and the father must then take legal action in order to provoke a court judgment recognizing filiation.

Any interested person may, within three months from the moment when the registration of the legitimation is brought to his knowledge, ask the court to annul the registration on the grounds that the person on whose initiative the legitimation was registered is not the father of the child. In any event, such action may not be brought after the expiry of a period of ten years from the date of registration.

The juvenile court will decide on the custody of the child. The decision is not final. If you are not satisfied with the court’s decision, you can appeal it within one month from the date the decision was made to the court of appeal.

Article 1542 of the Thai Civil and Commercial Code provides for the possibility for the husband to disavow the child in court if he can demonstrate that he cannot be the father. This action must be brought within one year of the birth of the child. It is no longer possible to bring a disallowance action if the child is over ten years old.

Likewise, the action for disavowal of a child cannot be brought by the husband if it appears that he has registered the birth of the child in the birth register as his legitimate child or that he has accepted. to have it entered in the birth register.

Disallowance action is strictly regulated making it difficult to implement such action.

Article 1582 of the Thai Civil and Commercial Code provides for several cases where the judge can withdraw parental authority from one of the two parents:

In the event of bankruptcy or possible danger to the minor’s property through mismanagement, the judge can withdraw the right to manage the property from the parent exercising parental authority. This is less than the total withdrawal of parental authority.

The judge who has withdrawn parental authority from one of the parents or from both parents must appoint a guardian in charge of exercising parental authority over the child.

In the event that the person exercising parental authority has been deprived of part of parental authority, the Court may appoint a guardian to exercise the part of parental authority, or may, in the event that the deprivation of parental authority management right of the person exercising parental authority has been carried out, appoint the guardian for the management of property.

The guardian is appointed by court order at the request of a parent of the minor, the prosecutor or the person whose name has been specified in the will by the last surviving parent.

Not being a signatory to the Hague Convention on the Recognition of Foreign Judgments, Thailand does not recognize foreign judgments on custody of children. It is necessary to obtain a Thai judgment.