This article is going to Child Custody in Thai Family law. However, before we go to that point. There are few major things to understand.
Firstly, Who is a Child in Thai Law?
The Civil and Commercial Code (CCC), Section 19 stipulates that ‘A person, on completion of twenty years of age ceases to be a minor and becomes sui juris’.Therefore, in Thai Law a person who under completion of twenty years old is a child.
Secondly, Who has a Child Custody rights?
Section 1566 of CCC stipulates that ‘A child is subject to parental power as long as he is not a sui juris’. Surely, the parents.
Thirdly, How Child Custody works in Case of Divorce?I
In case of divorce the Section 1522 stipulates that ‘in case of divorce by the Court Judgment or in case the agreement of divorce contains no provisions concerning the maintenance of the child, the Court shall determine it’.
Finally, How does the Thai Court determine the Child Custody?
In order to understand this matter, if we have a look at the last sentence of the Section 1521 of the CCC. It stipulates that ‘appointing a new guardian takes into consideration the happiness and interest of the child’. It means ‘the Happiness and Welfare of the child as the first and paramount consideration’. This is the same with the Children Act 1989 of England, Section 1 (3) which consists of 8 principles. (Family Law B.E.2525; Prasobsook Boondech)
To give an illustration of these 8 principles, let’s have a look at how the Thai Family Supreme Court applied the 8 principles to the matter of the determination of child custody.
1- Young Children Need Mothers
The infant shall be under parental power of the mother better than the father who has a new wife. Supreme Court Judgement No. 303/2488.
2- Continuity of Care
Even the finances of the father are better than the mother’s. But if the father is able to stay with the child only on weekends. Therefore the parental power of the child shall belong to the mother. Supreme Court Judgement No. 3035/2533.
3- Keeping Children Together
Firstly, brother and sister were together with the mother. Secondly, the father is always out and comes home late at night. Therefore the parental power of the child shall belong to the mother. Supreme Court Judgement No. 9130/2539.
4- Wishes and Feelings of the Child
It is not only the 14 years old girl who used to see the father fight with the mother regarding another father’s women. But also she wishes to stay with her mother. Importantly when considering the happiness and welfare of the girl. In conclusion the girl should be under the parental power of the mother. Supreme Court Judgement No. 1454/2545. With this in mind, in practice, wishes of children under 8 years old may not be considered.
5- Capacity to Provide the Child Education, Religion and Intellectual Development
The father used to bash the Mother. As well as he likes to drink and smoke. Mother who is a teacher, well-behaved should have more capacity to give a child the Education and Development than the father. Therefore, the mother should have parental power. Supreme Court Judgement No.5484/2538.
6- Capacity to Provide Accommodation and Medical Care
The Farther is low-income and unable to support the wife and the Child. Therefore, the child should be under the parental power of the mother. Supreme Court Judgement No.819/2546.
7- Existing Environment
Even the father is well-behaved but as a government official who is always relocating work locations to different provinces. The child should be under the parental power of the mother. Supreme Court Judgement No. 116/2547.
8- Love and Affection and Emotionalities
Supreme Court Judgement No. 4062/2533 Mother married with her new husband and works at night and gives a child under care of her brother in another Provincial. The child should be under the parental power of the father.
However, if it appears that the father or the mother has the child custody or parental power. Being 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. When appointing a new guardian the Court will take this into consideration. The happiness and interest of the child (S1521 of CCC).
Moreover, Section 1564 of CCC stipulates that ‘Parents are bound to maintain their children and to provide appropriate education for their minority’. And Section 1584 stipulates that ‘A person who has been deprived partly or wholly of custody power is not thereby relieved from the duty of law to maintain the minor’.
All things considered, except for the point 1, society evolution makes that the Father and the Mother are equal in the beginning. The Court won’t consider the sex of the Parent to fix the Child Custody power.
In addition, in the following case. the competent official must undertake to provide assistance and protection to the child.
- Where a child’s guardian is not in a state to take care. Or raise, discipline and develop the child. Regardless of the reason.
- A child’s guardian acts in a manner which is likely to be harmful to the child’s safety. Or obstructive to his or her growth or development, or provides unlawful care.
- Any other compelling reason for the benefit of assisting or protecting the child against harm.
That According to Section 28 of the Child Protection Act B.E. 2546.
If you have any questions regarding Child Custody or Parental Power in Phuket. Or you need help from a Law Firm who offers full legal service, feel free to contact us. See our professional Thai legal Service in Family Law
Nuansnit Chuntawong, Master in Law, Thai Attorney and Notarial Services Attorney