Every year our family lawyers at our Bangkok law office receive several enquiries of both: uncontested and contested divorce and many times the cases involve also legal representation to obtain sole custody in Thailand. The obtention of sole custody is sometimes a challenge for H&P lawyers but we are able to successfully obtain this by court order when we are able to implement certain legal strategies in litigation.
In Thailand the Central Juvenile and Family Court is the one that can grant the divorce, alimony and give sole custody to one of the parents. Under Thai Law, the sole custody is the maximum parental powers that can be granted to one of the spouses like other sole legal powers in other jurisdictions.
The Civil and Commercial Code Section 1566 provides that a child is subject to parental power as long as the child is not sui juris.
The parental power is exercised by the father or the mother, except in some cases stipulated by law and confirmed by Thai jurisprudence such as:
(1) the mother or the father is dead
(2) It is uncertain whether the mother or the father is living or dead
(3) the mother or the father has been adjudged incompetent or quasi-incompetent
(4) the mother or the father is placed in a hospital by reason of mental infirmity
(5) the parental power has been granted to the mother or the father by an order of the court
(6) the mother or the father have come to such agreement as provided by the law that it can be made.
On the other hand, the Thai Civil and Commercial Code Section 1567 provides that “…A person exercising parental power (natural guardian) has the right:
(1) to determine the child’s place of residence
(2) to punish the child in a reasonable manner for disciplinary purposes
(3) to require the child to do such work as may be reasonable to his ability and condition in life
(4) to demand the return of the child from any person who unlawfully detains him.
The Civil and Commercial Code Section 1574 provides that “…A person exercising parental power cannot enter into any of the following juristic acts with regard to the property of the minor except with permission of the Court;
(1) selling, exchanging, sale with right of redemption, letting out property on hire-purchase, mortgaging, releasing mortgage to mortgagor or transferring the right of mortgage on immovable property or on mortgageable movable property;
(2) extinguishing the whole or a part of real right of the minor on immovable property;
(3) creating servitude, right of inhabitation, right of superficies, usufruct or any charge on immovable property;
(4) disposing of the whole or a part of the claim the purpose of which is to create real right on immovable property or on mortgageable property, or the claim the purpose of which is to have a real right on such property of the minor relieved;
(5) letting immovable property for more than three years;
(6) creating any commitments the purpose of which is to achieve the objective as provided in (1), (2) and (3);
(7) making a loan of money;
(8) making a gift, except out of the income of the minor on the minor’s behalf for charitable, social or moral purposes, and suitable to the minor’s condition in life;
(9) accepting a gift subject to any condition or charge, or refusing a gift;
(10) giving guarantee by any means whatsoever which may cause the minor to be compelled to perform an obligation or to enter into other juristic act, as requiring the minor to perform an obligation to other person or on behalf of other person;
(11) making benefit out of the property other than those provided in Section 1598/4 (1), (2) or (3)
(12) making a compromise;
(13) submitting a dispute to arbitration.
Based on the opinion of our H&P Thai lawyers and Foreign Legal Consultants the custodial person under Thai Law can exercise a legal right. The custodial person includes the father and mother, having the duty to jointly take care their child until the child reaches an age of majority under section 1566 of the Civil and Commercial Code.
However, in case the father or mother has misconduct behavior or does not properly care the child. Another spouse has the right to request the court for termination of parental rights so that it could have sole custody over the child under section 1566(5) of the Civil and Commercial Code.
If you need a legal consultation with a family lawyer in Thailand, please contact our Thai lawyers and foreign legal consultants at [email protected]
