Child Custody

A child custody negotiation or battle is among the most painful experience that a family can go through. Every member of the family has to conquer the stresses of being in court and if the parents are separating on a bitter circumstance, the arguments and presentations of negative ideas to discredit one party to the other in order to gain custody will eventually give lasting but hurting and often traumatic impressions on the child.

These impressions may eventually affect the child’s personality as he grows up therefore if a separation of the parents is the only available avenue that they will have, it wise that they will deal with the custody issue as subtle and as civilized as they can.

However, custody battles or negotiations are not limited to married couples only. Custody issues are also real to individuals who have born a child out of marriage.

Custodial Rights
The Civil and Commercial Code of Thailand refers to the rights of custody as Parental Power. The parental power is exercised over the child by a qualified adult who is either the child’s:

• Father
• Mother
• Legal Guardian

The person who is granted to have the custodial right on the child has the:

1. Right to determine the residence of the child;
2. Right to instill discipline the child within reasonable terms and conditions;
3. Right to allow the child to work in accordance to his abilities and status;
4. Right to compel the other parent or an adult who is holding the child without custodial rights or someone who is unlawfully detaining the child to return the child to the one with parental powers.
5. Right to manage the properties of the minor child but is restricted from exercising certain actions such as selling, mortgaging and exchanging it with or for another otherwise approved by the court.

Avenues on Obtaining Child Custody
A parent who wants to gain custody over a child can choose between two options, through mutual consent between parties or through a court decision.

1. Agreed by Mutual Consent
   1. Married Couples – If the divorce of the parents were done under mutual agreement, a custody agreement can be entered into by the couple and such agreement can include visitation rights of one parent, child support and the sharing of custody, if possible. But, this written agreement can only become enforceable when if it bears the signature of at least two qualified witnesses and is registered with the district office along with the registration of the divorce.
   2. Unmarried Couples – If the parents of the child are an unmarried couple, automatically, the mother is granted with sole custody over the child.

   On the other hand, the child needs to be registered as a legitimate child of the father at the district office first before the father can claim his parental powers over his custodial duties to his child whether it will be in joint or in sole custody depending on the agreement reached by both parents.
   
   It must also be established that apart from the consent from the mother, the child must also be able to understand and accept the fact that he is the father before the issues of legitimacy of the father over the child is settled.

2. Decided by the Court
   1. Married Couples – It will be the court who will decide which parent will have the custody over the child. A guardian may also be appointed by the court if the court sees him/her as the person who will serve the best interests of the child.
      
      But the court can take away or refused with the custodial rights of a parent if the said parent is found to be incompetent, have committed misconduct or abuse of his/her parental power and duties.
      
      The parent without the custodial rights or a public prosecutor on behalf of the child can file for a petition at the court and the burden to prove that the parent granted with the custodial rights is incompetent or has committed a misconduct or abuse of his/her parental duties rests with petitioners.
   2. Unmarried Couples – The legitimation case and the custody petition can be heard together at court if the father of the child who is born outside of marriage files a legitimation of the child in Thailand. It will be the court which will decide whether to grant the father with partial or whole custodial rights over the child.