Child Custody Under Thai law

Aside from divorce, child custody proceedings under Thai law may arise where it is alleged that a parent or guardian is not fit or should not be allowed to exercise parental power. Specifically, Section 1582 of the Civil and Commercial Code provides that where a parent or guardian is “adjudged incompetent or quasi-incompetent, or abuses his or her parental power as regards the child’s person, or is guilty of gross misconduct, the Court may…order the deprivation of the parental power either partly or wholly”. Furthermore, as explained in the following illustration, Thai Supreme Court Decision No. 2114/2542, the decisive factor in determining child custody is the evidence presented before the Court, especially the testimony of the child whose custody is in dispute. If anyone should challenge a parent’s custody of their child, the burden of proof placed on that person will be particularly heavy.

See also the procedures in obtaining Child Custody in Thailand.

The facts before the Court were in dispute. Mother and Father had two children, Daughter, who was four years old, and Son, who was two years old. Around November of 1991, Father brought Daughter to stay with Grandmother. At a later time, Father was mysteriously shot to death. After her husband’s death, Mother demanded that Grandmother return Daughter to her which Grandmother refused to do. Mother filed a lawsuit against Grandmother to demand return of Daughter according to Section 1567(4) of the Code. Grandmother countered that Mother should be deprived of parental power according to Section 1582 of the Code on the grounds that Mother was guilty of gross misconduct, that Father was planning to divorce her anyway, that Father wanted Grandmother to have custody, and that Mother played a role in Father’s murder; all of which Mother denied. At trial, Grandmother failed to bring Daughter to give testimony before the Court claiming that Daughter could not do so because she was scared of Mother. In ruling in favor of Mother, the Court held that there is a legal presumption that by nature mothers love their children, and if anyone should challenge that presumption their evidence must be strongly convincing, the most critical piece of evidence being the testimony of the child whose custody is in question. Therefore, the Court’s inability to examine Daughter’s testimony was fatal to Grandmother’s case. Furthermore, the Court dismissed the rest of Grandmother’s witnesses as follows:

• Two people testified on behalf of Grandmother that at a certain time they witnessed Daughter scared to go see Mother. The Court dismissed this evidence on the grounds that in that particular instance, Mother and Father were having an argument over custody of the children. That incident alone cannot prove that Mother was an abusive parent or guilty of gross misconduct.
• A senior police officer testified on behalf of Grandmother that Father’s killer was actually Mother’s relative and that the killer’s surname was the same as Mother’s maiden name. The Court dismissed this evidence holding that it was not enough to prove that Mother played a role in Father’s murder nor to prove that she was guilty of gross misconduct.
• A woman testified on behalf of Grandmother that Daughter had told her that she was afraid of going home because there were times when Mother would hit her and lock her in the bathroom. The Court dismissed this evidence as hearsay.

Finally, the Court also added that at trial, Grandmother was not able to present any evidence that Mother was an abusive or incompetent parent towards Son. The Court assumed that, unless proved otherwise, Mother would be as good a parent towards Daughter as towards Son. As evident by the above case, public policy in Thailand strongly favors maintaining the relationship between parent and child whenever possible. If one should ever find oneself in the tragic situation of having to challenge a parent’s custody of his or her child outside of a divorce proceeding, the assistance of competent legal counsel is absolutely necessary.

 

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¹ In Thailand, surnames were introduced only recently in the early 20th century; therefore, two people with the same surname are most likely related.

Category: Family Law