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Child Custody and Child Legitimation in Thailand

By: Magna Carta Law Office

Child custody and legitimation has been a common issue for married couples who sooner or later need to part ways or for couples who do not consider marriage as a preference at all. The answer to the big question of “who shall take the primary child custody or who shall exercise the parental power?” needs to be legally and fairly dealt with.

  • A person exercising parental power has the right:
  • to determine the child’s residence
  • to punish the child in a reasonable manner for disciplinary purposes
  • to require the child to undertake work as may be reasonable for his ability and condition in life
  • to demand the return of the child from any person who unlawfully detains him/her

For married couples, there is no doubt that child custody and parental authority shall be shared by both parents but how shall things go when it comes to an illegitimate child?

The parent who will have the primary child custody after divorce can be decided either by the parents or by the court. If the parents are able to negotiate or make an agreement without the court’s decision, they can keep better control over present and future decisions to be made on behalf of the child. For couples going through a mutual agreement or an uncontested divorce in Thailand, an agreement can be created to specify how the custody will be shared between parents. Both parents may jointly discuss the child’s living situation, visitation rights, daily financial responsibility, educational plans and other important needs of the child.

For unmarried couples, the mother shall have the sole custody of the child unless the father will register the legitimation of the child at the local district office. This procedure of legitimizing the child as his own is necessary before a father can enter into a custody agreement with the mother.

It is important to know that even if the biological father is named on the birth certificate, he is not recognized to be the legal father under Thai law. In Thailand, a child born out of wedlock is deemed to be the legitimate child of the birth mother. The biological father is not yet considered as the legitimate father and shall have no legal rights over the child unless the father takes action for the child’s legitimization. According to the Civil and Commercial Code Section 1547, a father’s rights to a child can be legitimized only if:

  • there is a subsequent marriage between the father and the mother
  • there is a registration of legitimation made at the local district office or Amphur on application by the father, or
  • there is a judgment by the court

According to the Civil and Commercial Code Section 1555, if marriage is not a preference, an action for legitimation may be entered ONLY in any of the following cases:

  • where  there is a rape, abduction or illegal confinement of the mother during the period when conception could have taken place
  • where  there has been elopement or seduction of the mother during the period where conception could have taken place
  • where  there is a document issued by the Father and acknowledging the child as his own 
  • where  it appears on the Birth Register that the child is a son or daughter of the man who made the notification of the birth, or who consented  to such notification
  • when there has been open cohabitation of the father and mother during the period when conception could have taken place
  • where  the Father had sexual intercourse with the Mother during the period when conception could have taken place, and there are grounds to believe that he/she is not the child of another man
  • where  there has been continuous common repute of being a legitimate child. This is established by means of facts showing the relationship of Father and child, as evidenced by the child's connection with the family to which he/she claims to belong, such as the fact that the Father has provided the child's education or maintenance, or that he has allowed the child to use his family name, or other facts.

Once the registration of legitimation has been made, it cannot be revoked. However, any interested person may, within three months from the date when he/she has become aware of the registration, apply to the Court for cancellation of the registration on the ground that the person who insisted the legitimation be registered is not the father of the child; in any case no such action may be entered after ten years from the date of registration. In case where there is an objection to the applicant for registration of legitimation on account of not being the child’s father, if the applicant for registration of legitimation has brought an action to the Court for an order effecting him to be the child’s father, the child or the mother may apply to the Court in the same case for an order effecting that the applicant for registration of legitimation is not a suitable person for exercising in part or whole the parental power, even if he is the real father of the child.