A Legal Perspective

Today, many from different nationalities and backgrounds live in Thailand and have families here. Sometimes couples separate or divorce. Sometimes they were never married. When this happens, there can be disagreements about who will take care of the child. These disputes about child custody can be difficult to settle and may lead to complicated and lengthy court cases. This can affect what is best for the child.

This article is for parents and people who may become parents in the future. It explains how child custody works under Thai law in the Civil and Commercial Code. 

What is Child Custody?

Before considering who may obtain custody, it is essential to understand how Thai law defines this concept.

In Thai law, child custody is called “Parental Power”. It is both the right and duty of a parent to care for their child and make important decisions for them until the child turns 20 years old.

Parental Power includes:
As stipulated in Section 1567:

• Deciding where the child will live.
• Guiding and correcting the child’s behavior in an appropriate way.
• Giving the child tasks suitable for their age and ability.
• Taking the child back from anyone who keeps them without permission.

It also, as Section 1574 includes, managing the child’s property. This can mean selling, mortgaging, or leasing land or buildings for more than three years, lending money, or making agreements about the property. However, before doing any of these property-related actions, a parent must first ask the court for approval.

Who Has Custody?

By the law, the mother automatically has custody when a child is born. If the parents are legally married, they usually share custody equally.

However, the situation can be different depending on the family’s circumstances. The most common situations are:

• Unmarried couples
• Divorced couples
• Cases where only one parent has custody under the law

1. Unmarried Couples

In situations where the parents are not married, custody is automatically granted to the mother at birth. However, the father may obtain joint custody through one of the following legal processes:

• Registering the marriage: To register the marriage after having a child requires certain documents, including the child’s birth certificate. Once the marriage is registered, the child is legally recognized as the father’s legitimate child, and both parents will then share custody.
• Registering the legitimation of the child: This process requires consent from both the mother and the child. They can give consent by appearing together at the district office before an official, or by providing a written consent letter if they cannot be present. If the mother or the child is unable to give consent, a court order can be used instead.
• Filing a petition with the court: If the mother and/or the child refuse or are unable to give consent for the registration of legitimation, the father may file a petition with the court. The father must provide evidence proving paternity. If the court is satisfied, it will issue an order declaring the child as the legitimate child of the father.

2.             Divorced Couples

When parents are legally married but later divorce, custody must be determined as part of the separation process. This can happen in different ways as stipulated in Section 1520:

• Mutual Agreement: The parents may agree to share custody or to let only one parent have it. This decision will be written in the divorce document at the district office and will have legal effect. Any agreement about child support or visitation can also be included.
• No Agreement: If the parents cannot agree, either one can file a case with the court. The court will decide based on the child’s best interests, based on factors such as the child’s age, emotional needs, each parent’s ability to provide care, and the stability of the home environment.
• Divorce by Court Decision: If the divorce is granted by the court, the judge will also decide custody during the same case. The court may also set conditions for visitation rights, child support, or other arrangements to protect the child’s welfare.

3.             Situations Where One Parent Has Sole Custody under the Law

In certain situations, Section 1566 allows custody to be granted to only one parent. These include:

• Death of a Parent: The surviving parent automatically assumes full custody. No other guardian can replace them if the deceased parent still had custody at the time of death.
• Unknown Whereabouts of a Parent: If one parent disappears and their status is uncertain, the other parent will take sole custody.
• Incapacity of a Parent: If a parent is legally declared incompetent or partially incompetent by the court, custody may be limited or transferred to the other parent.
• Mental Health Hospitalization: If a parent is admitted for a serious mental illness, the other parent will exercise custody.
• Court Decision: The court may assign custody to one parent if it believes it is in the best interests of the child.
• Mutual Parental Agreement: Both parents may agree, under the law, that only one parent will have custody.

Sometimes, a parent may even lose custody if they are not acting in the child’s best interest, which we discuss next.

Revoking Child Custody

As Section 1582, a parent who holds custody, either by agreement or court order, may lose it if they later act in a way that is not good for the child. The court can take away or change who has parental authority. The main goal is always the child’s best interests.

When Parental Authority Can Be Revoked
Parental authority may be revoked if:

• The parent is legally incapable.
• The parent is partially incapable (quasi-incapacitated) by a court order.
• The parent acts improperly toward the child, such as:
  • Leaving the child alone or not taking care of them.
  • Not sending the child to school.
  • Doing illegal or immoral things, like being convicted for drug offenses.

Who Can Ask the Court
A petition can be filed by:

• The court itself, if needed.
• Relatives of the child.
• The public prosecutor.

Right to File a Petition
The parent who does not have authority can ask the court to revoke it. If both parents are unsuitable, other people who care for the child may ask the court to become the child’s guardian. In all cases, the court will always focus on what is best for the child.

And as Section 1584, regardless of how custody is granted, changed, or revoked, Thai law makes one thing clear: a parent’s duty to provide maintenance and support for their child continues.

Navigating child custody issues in Thailand can be complex, and it’s important to understand your legal rights and responsibilities. These matters are often emotional, and having expert legal guidance can make the process much smoother.

Our firm provides professional legal advice on all aspects of Thai family law. We are dedicated to helping clients understand the legal process and to representing their interests effectively. Our goal is to work towards a solution that is in the best interests of you and your child.