Ratchada Law Firm

Child custody disputes between parents can arise in the course of a divorce case, or between unmarried parents. According to Thailand law, both parents of a child have full custodial rights. However, legal issues often surround the finding of paternity. In other words, Thailand law requires that a father be the “legal” parent, as well as the biological parent, to have father’s rights.

Father’s Rights

Father’s rights are established as a finding of legal paternity. Legal paternity differs from mere biological fatherhood. Many cases have, as a main issue, the establishment of legal paternity. Cases can be filed by a biological father seeking father’s rights, or by a mother, seeking child support and other duties from the biological father.

Best Interest

Child custody cases are handled in Thailand Family courts. The main consideration used by the courts in determining custody is what is in the best interest of the child. Accordingly the behavior of the parents and child development issues are analyzed closely by the Thai court.

The Role of Social Worker Analysis

The Observation and Protection Center has been established by the family courts of Thailand to allow for a preliminary social worker evaluation of the parents and the child involved in a child custody dispute. The report of the OPC is forwarded to the Family Court to assist with determination of the child custody issues.

Thailand Child Custody Attorneys

Chaninat and Leeds’ family law lawyers  have decades of courtroom and counseling experience in  family law matters, including child custody, child support, property and asset disputes, divorce, separation, guardianship  and revocation of custody, and parental rights cases. Our primary objective in all child custody cases is to win cases and defend our client’s interests. However, given the sensitive nature of child custody cases, we also understand the importance of compassion, understanding and patience. Therefore, our role is dual: we are defenders of our clients and also sympathetic counselors and problem solvers. The following issues are just examples of the issues that can arise in a custody case:

The issue of child support frequently arises in divorces and disputes between non-married litigants. Most often, the mother of a child will be suing the biological father for child support. However, it is also possible for a father with custodial rights of a child to seek child support from the mother of the child. If the mother and father can agree to child support this agreement can be drafted in writing to form part of the settlement agreement, often included in Thailand divorce proceedings. If the Parties can agree to such terms it’s possible to register a divorce agreement with a government district office as a simple procedure as part of a divorce case. However, even if the mother and father are not married, it is still possible to reach a settlement agreement or to file a court complaint depending on the circumstances. If the Parties cannot agree to the terms of child support, a complaint can be filed with the court demanding child support. Cases are decided by judges in the Central Juvenile and Family Courts of Thailand. The Family Court will take into consideration various factors in arriving at a child support schedule. However, the issue a court must first decide would be whether, pursuant to applicable law, a duty to pay child support exists. If there is such a duty, the court will then consider relative incomes of the Parties, the expenses of the children and other factors to determine an amount for child support.

Thailand Child abduction or “child kidnapping” cases typically occur during a child custody dispute, when one parent flees a legal jurisdiction with a child to avoid the jurisdiction of a particular court. International law and Thailand family law may come into play when a child is abducted from a foreign country and taken to Thailand or when a child is taken from Thailand to a foreign country, or when a child is abducted by a parent within Thailand.

Q: What should I do if my child is abducted and taken to Thailand?

A: The first thing a parent must do if a child has been abducted is to contact a qualified Thailand family law attorney and make a police report. A qualified attorney will assist with filing the necessary complaints with legal authorities. Based on the circumstances of each case, a family attorney may file a police report with the relevant embassy in Thailand, or file a formal request pursuant to the Hague Treaty. A Thai Family Law Attorney can file a court complaint with the Thailand family court. If criminal charges are involved, a criminal complaint may also be required.

Q: Can the Hague Convention on Child Abduction be used in Thailand?

A: The Hague Convention on the Civil Aspects of International Child Abduction provides a procedure for parents who have had their children abducted by the other parent. The Hague Treaty on Child Abduction is executed through the governments of treaty member countries, but normally requires an attorney to file the appropriate documents with the government authority responsible for the retrieval of the child. Thailand has formally acceded to the Hague Convention on Child Abduction.  Thailand has also promulgated its own domestic law to provide for enforcement of the Hague Convention and its terms within the Thailand legal system. This means that currently an aggrieved parent can request the Thailand Courts or the Attorney General Office of Thailand to take action pursuant to tehHague Treaty ob Child Abduction.

Q: What is the procedure for retrieving a child who has been taken to Thailand?

A: In order to retrieve a child that has been abducted by a parent in Thailand, the parent who is seeking the return of the child must established custody rights of the child in Thailand Family Courts. A court order of sole custody can then be used by the aggrieved parent to obtain the return of the child. Such action can be enforced by Thailand court and police officials. Depending on the circumstances, a police complaint may also be necessary.  For international cases of Child Abduction, the procedure as provided by the the Thailand Child Abduction Act may be used

Our lawyers specialize in Thailand marriage law and arranging legal administrative marriages for foreigners in Thailand Marrying in Thailand can be a wonderful and memorable experience. Many visiting foreigners choose to marry in Thailand because of its abundance of romantic islands and upcountry resorts. For others, it is a matter of practicality. International Marriages between residing expatriates and their Thai fiancés are also quite common. For some foreign individuals who have difficulties marrying in the country where they reside, Thailand offers a quick and convenient location for a wedding.

How is the marriage process in Thailand carried out?

The marriage process in Thailand is fairly straightforward. For foreigners to get married in Thailand, they must first obtain clearance from their respective embassies. However, do note that different embassies have different procedures for providing this clearance so it might be prudent to contact the appropriate embassy to clarify this with them before attending in person. With the clearance, a foreigner can obtain an affidavit which states the name of the foreigner as well as personal details such as citizenship and legal freedom to marry. This affidavit will have to be translated into Thai and legalized pursuant to Thai law. When all the documents are in place, the administrative marriage can then be performed at the Thai district offices known as ‘amphur‘ or ‘khet‘.

Why is Thailand a good place to get married for an individual with a foreign spouse?

In Thailand, it is legal for foreigners to marry either Thai citizens or other foreign nationals provided that requirements are met. A legal Thai marriage is normally internationally recognized. For individuals with transnational issues, where one or both spouses are from different countries, Thailand is a very convenient location to register a marriage. Another advantage of getting married in Thailand is the variety of picturesque locations such as world class beach resorts, where a formal or religious ceremony can be performed following the legal administrative marriage.

Are there other advantages to marrying in Thailand?

For persons interested in prenuptial agreements, particularly those with an international angle to them, Thailand’s legal system is generally more likely to uphold the enforceability of a prenuptial agreement than other western jurisdictions provided that the prenuptial agreement is registered pursuant to Thailand law.

How long does an administrative marriage in Thailand take?

Including the time involved in procuring affidavits from the appropriate embassy, having those documents translated and legalized, and having the marriage performed at a local amphur, the process can be completed in as short as 3-4 days. If there are complications such as delays with paperwork at an embassy, or different requirements for certain nations’ embassies, the process could take slightly longer than usual.

Why should I hire a law firm to help with my marriage registration?

It is helpful to retain the services of a lawyer with international to supervise the marriage registration. A law office can help co-ordinate the procurement of official documents from the embassy and have them translated and legalized quickly with minimum problems. Familiarity with the formalities of a Thai marriage, access to qualified translators, and an understanding of the legalization process can reduce the risk of delays or complications. For a US national with a Thai spouse, a good law firm with an expertise in international law issues can even help you to secure a marriage visa to bring your Thai spouse back to the United States for marriage.

Can’t we do the paperwork ourselves?

Does a Thailand marriage require a prenuptial agreement?

Although litigation can be an unpredictable process and the laws of different countries may vary, an individual with significant assets, or even an individual who is merely careful about his/her financial future, may find it beneficial to have a prenuptial agreement. In the event of a divorce, a prenuptial agreement can assist with dividing the marital assets. In the absence of a prenuptial agreement, rights in a divorce court proceeding may be decided according to the existing law and the discretion of a trial court judge and may not be in your favor.

What is the difference between Thailand prenuptial agreement and that of a Western jurisdiction?

The main difference is that, according to Thai law, a prenuptial agreement is null and void unless it is officially registered in Thailand before the marriage. In the US and other western countries, it is generally a private agreement between parties and is not registered with the government.I am a foreign national and want to bring my Thai fiancée to my home country. What type of lawyer should I hire for the prenuptial agreement? You should hire a skilled international lawyer competent in the laws of both Thailand and western nations with practical experience in divorce litigation of both jurisdictions. A Thailand law firm with divorce attorneys experienced in international jurisdiction issues will have the ability and knowledge to draft a prenuptial agreement that can best meet your objectives.

Does it matter if I get married in Thailand or my home country?

Yes. There are issues concerning conflicts of law and the applicability of those laws. In the event of a divorce, where the marriage was registered will have an effect on which jurisdiction the divorce proceedings are heard. In general, your assets will be better protected if your marriage and prenuptial agreement are registered in Thailand because the divorce proceedings are more likely to be held in a Thai court. Prenuptial agreements are not registered in Western countries.

Which types of property division can I specify in a Thailand prenuptial agreement?

Under Thai law, you may be able to specify the properties involved and separate them into two categories joint property and individual property. You can also specify how finances will be managed during the marriage. However, restrictions on child support are generally not allowed.

General Considerations for Divorce in Thailand Generally speaking, if you or your spouse is currently residing in Thailand you can file for a divorce under Thai law. If the divorce is jointly requested, the divorce proceedings should be relatively simple. If one of the parties is unwilling or unable to proceed in the divorce proceedings, the legal process of filing for a divorce in Thailand then becomes more complicated. Due to the variety of factors that can be involved it is usually necessary to enlist the services of a lawyer to guide you through this process. How do I get a Thailand divorce if both my spouse and I consent to the divorce?If you previously registered your marriage at a local district office (Khet or Amphur) you may register for an administrative Thailand divorce. Performing an administrative divorce at the local district office requires that you and your spouse do not have any disagreements over child custody or property (“an uncontested divorce”). If there are assets to be divided or issues regarding custody of children then it is advisable to have a Thailand divorce lawyer instructed in this type of administrative divorce. It is also sensible to draft a divorce agreement in advance. When registering the divorce, officials may ask questions about future plans, the financial situation, and children (if any) before they ask you to complete the Thailand divorce forms detailing the terms of divorce and other matters. The divorce papers must be certified by two witnesses.

What if my spouse does not consent to a divorce?

If your wife or husband will not agree to a divorce then a divorce “for cause” must be lodged with the Court. Grounds for divorce must be asserted and you must make a personal appearance in court. In Thailand grounds for divorce include:

* A 3 year period of separation

* One spouse has deserted the other for over one year

* The husband has taken another woman as his wife

* The wife has committed adultery

* One spouse is guilty of misconduct (criminal or otherwise)

* One spouse has been imprisoned for more than one year

* One spouse has physically or mentally harmed the other

* Lack of marital support

* One spouse has had incurable insanity for at least 3 years

* One spouse has broken the bond of good behavior

* One spouse has an incurable communicable disease

* One spouse has a physical disability so as to be unable to cohabitate as husband and wife.

What if either my spouse or I is living overseas?

If the divorce is uncontested, both parties will still need to appear at the Amphur office to register the divorce.A contested divorce however requires a judgment from the Court. If you are now living abroad, a lawyer can file a divorce claim on your behalf.  However, you must appear in person when the divorce claim is heard by the court. If your spouse is not present or will not return to Thailand to contest the divorce, you may still be able to proceed provided that he or she has received adequate notice of the divorce action. Service must be applied through a Thai court if your spouse is not in Thailand and substitute service, (such as by publication) may be allowed in certain circumstances.  If your spouse does not respond to service from the court, the divorce case may by default.

How are property and outstanding debts divided in the event of divorce?

Thailand is a “Community Property” jurisdiction. When a couple divorces in Thailand, separate property (sin suan tua), namely assets and property acquired before marriage, generally remains the property of the owner. Assets and property acquired during marriage are commonly considered community property with both spouses having ownership rights.  The rules regarding division of property are complex and the Thai Courts will divide the property according to the law and individual facts of the case. Debts incurred during the marriage, whether they are household, medical, or educational, are normally the responsibility of both parties.

What if I have a prenuptial agreement?

Prenuptial agreements are allowed in Thailand provided they meet the procedural requirements of Thai law. A properly executed prenuptial agreement is usually considered a valid legal agreement in other international jurisdictions.  In order for a prenuptial agreement to be valid it must have been signed by both parties, as well as two witnesses, and must be registered with the local district office prior to the marriage.

The process of adopting children in Thailand varies depending on the nationality of the adoptive parents as well as the age and needs requirements of the child.  The Thailand government is very protective of Thai orphans and the adoption process reflects the government’s efforts to ensure orphans are adopted by qualified parents.

Thai Adoption Process

Adoption in Thailand is dealt with exclusively by the Child Adoption Center of the Department of Welfare (DPW).  There are no legally authorized private adoption agencies that adopt Thai children to foreign parents. However, there are non-government agencies that work directly withthe DPW and are licensed to recommend placement of children with international adoptive parents. Nevertheless,  all applications are processed by the DPW.  The process for adopting children from Thailand can vary depending on the agency or lawyer that facilitates the process from Thailand and the laws of the adoptive parents’ home country.  One important consideration is the process of acquiring visas for the adopted child for the adoptive parents’ home country.

Thai Adoption Requirements

For potential adoptive parents of a Thai child, there are certain requirements that must be met; a) Adoptive parents must be married, b) both adoptive parents must be at least 25 years of age and c) Significantly older than the child to be adopted, and d) legally qualified to adopt in his/her own country.  Thai law also requires confirmation from an authorized agency in the foreign country that the adoption will be legalized before the DPW will begin the application process.  Adoption Lawyer Thailand Our Thai adoption attorneys can assist with all stages of the adoption process—including initially applying for the adoption as well as facilitating the issuance of visas in the adoptive parents’ home country.  Chaninat and Leeds is a bilingual firm that employs Thai and foreign lawyers; we have recently published an English translation of the Thai Child Adoption Act, the primary legal text onadoption in Thailand, available through selected resellers.

Surrogacy births provide an alternative method for having children. A couple may choose a surrogate to give birth to their child for a number of reasons.  Although medical technology has made great advances in the field of IVF pregnancies and surrogate births, the development  of the law in these areas has unfortunately lagged behind.  The practice of surrogacy can pose complicated legal issues, particularly when the surrogate mother is in a country other than where the intending parents hold citizenship.

Surrogacy in Thailand

Thailand currently has no laws or published case decisions directly relating to the practice ofsurrogacy.  There are agencies and health clinics that openly engage in locating surrogate mothers and egg donors.  Nevertheless, IVF implantation, egg donation and surrogacy are relatively new areas of medicine and Thailand’s Medical Council has taken a cautious and conservative approach.  These practices are still in the legal and medical “grey area”.

Surrogacy Process in Thailand

In general, most clients are concerned with the following issues: a) how to protect their relationship with their child in the event that the surrogate mother chooses to renege on the agreement and claim legal rights to the child and; b) how to obtain legal rights as parents of the newborn and; c) how to obtain a visa and citizenship for the child, if the parents are from a country different than that of the surrogate.

Surrogacy Lawyer Thailand

In Thailand, paternity rights are established either by marriage to the mother, through court action or government registration. In this regard, a man may be the biological father and have established a relationship with his child, but without having met the necessary legal requirements, may lack the legal rights to his child.Paternity Law in Thailand
The rights and responsibilities of the father are stated in BOOK V: Family, Title II: Parent and Child of the Civil and Commercial Code of Thailand.  A child born to parents that are married is considered the legitimate child of the husband.  A child born out of wedlock is, in general, considered the legitimate child of the mother.  Accordingly, a biological mother’s legal rights are automatic but the father’s rights are not. A common misconception is that a father’s name on a birth certificate establishes paternal rights, but this claim is incorrect. Child support can be claimed between husband and wife, or parent and child, to be determined by a court.

Rights of a Foreign Father in Thailand

The law for foreign fathers is basically the same as it applies to paternity rights of a Thai father.  In order to have rights to one’s child, the father must either be married to the mother or file for paternity rights pursuant to the legal process.  One important issue with regard to foreign parents with Thai spouses is establishing citizenship rights of the child in the foreign spouse’s homecountry.  Establishing citizenship is usually a combination of the foreign law and Thai law: each nation will have its own legal requirements.

Proving Paternity in Thailand

A Thailand Courts have the authority to appoint a legal guardian of an individual that may no longer be able to make responsible decisions for their own welfare (the ward). It might be determined that the individual is mentally or physically incapacitated and can longer take care of himself or herself. Guardians are also appointed for minors in cases where parents are no longer able to exercise parental authority. In their role as guardian, the individual appointed by the court may be appointed to enter into all legal decisions for the ward. This includes making all medical decisions related to the ward,managing the ward’s property, ensuring all bills are paid on behalf of the ward and determining where the ward lives. The guardian can also manage the ward’s relation with other individuals and who he or she has contact with, as well as the ward’s personal finances. To file for guardianship, under Thai law an individual typically must be a family member of the person involved. To initiate a guardianship case, there are actually two stages involved. The first includes providing sufficient proof that the ward is incapacitated and can not adequately care for him or herself. The second stage involves the actual appointment of the guardian by the Court. The Court may grant guardianship in a limited capacity. This is referred to as limited guardianship,which allows for the ward to retain some of his or her legal rights while the guardian has somewhat restricted power. In this situation, the ward is usually still able to make some of his or her own decisions, such as managing finances, but perhaps can not adequately care for another aspect of his or her well being such as medical decisions. The court-appointed guardian must regularly provide reports to the Court and his or her guardianship status may be revoked by the court if he or she does not take appropriate care of the ward under Thai law. Our family attorneys have decades of experience in family law and guardianships. We assist in having guardians appointed in Thai Court, as well as asserting the rights of foreign guardians in Thai Courts.