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Thai Courts And Child Custody


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#1 jsflynn603

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Posted 2011-01-25 20:07:32

I had half a mind to continue a prior thread which has some tremendous input, enough to scare me half out of my wits... (If Mod wants to return this to that topic I don't mind)

Prior thread: http://www.thaivisa....nd-thai-courts/

The prior thread which deals predominantly with a father's right to his child versus an allegedly uninterested/incapable mother, and/or grandparents is different enough that I'll start this here.

I'm in my fifties. In America I'm an RN (Registered Nurse) I'm not rich by American standards but I do ok, though currently I'm (like about 22% of Americans (the media reported 9% unemployment rate is laughable--when a person cannot collect unemployment benefits anymore the metrics sees that person as employed!)) unemployed. It's unlikely that I can find appropriate work where my residence is since my sub-specialty is Occupational and Environmental Health, and industry in my area has been totally trashed (we're talking a 95% reduction in workforce over the past ten years).

There are some jobs that pop up but every one that I have seen over the past several months require that I be not a mere RN but a ANP (Advanced Nurse Practitioner) and so next January I start a Master's degree program and am sure that when I graduate after two years as a Nurse Practitioner I'll have a job lined up.

My Thai fiancee and I are intending to start the K-1 process but reading the above thread I'm having some serious concerns.

She married about nine years ago and has a child who is eight, no monk wedding, and no government registration. Shortly after becoming pregnant (so the story is told) he became unhappy with her appearance and left her with "the parents" and found another women whom he now lives with and has fathered two children with her. He has little interest in his first daughter, never visits, (distance is probably an 8 hour drive) and provides no support.

She lives with a brother-in-law and their child and acts as supervisor for a family business. She collects a "salary," (though unofficial) and has a roof over her and her child's head, food to eat and a motorbike to get around. It's not a bad life. My take is that she's "tolerated," as a necessity to assure the presence of the dear grandchild--but there does not seem to be a lot of familial love, and where she to die I'm not sure there would be any tears shed.

I met her almost three years ago, and lately we have decided to marry. While I'm in college, money will be tight and her plans were to come to America on a K-1 Visa and stay for a year or two, leaving the child with the grandparents (the grandparents would be very amenable to this of course), and then take it from there. Eventually though as would be expected either she would return to Thailand and we would do some years of me working in America for half the year, and coming to Thailand for half the year, or possibly I could find a position with an International Corporation in or near Thailand (positions do exist, again requiring the ANP degree).

Both of us believe that the child is better off raised in Thailand, but we'd enjoy having the child come for several months to America during school vacation.

But I see a scary possibility. The granddaughter is treasured, the child's mother (my fiancee) is not--quite the contrary.

I'm now wondering if she ought to try to obtain a Court Order giving her sole custody, making what the child does her sole decision. In the absence of her having a Court Order for sole custody I wonder if the grandparents will utilize the totally non-caring father to sue for sole custody arguing that she now has abandoned the daughter (moved to America). Frankly I could easily see this happen. Having a roof over her head, and food, could be easily misconstrued as the "father's" contribution (who in reality has nothing to do with it) and I could see him happily stepping back in and attempting to gain sole custody (which in this case would appear to be for him, but in reality would be for the grandparents). Such a scenario would be a nightmare at best, and devastating for her at worst.

The grandparents a year ago even made threats that they'd "take the child" if she tried to take the child to America when she barely hinted at the possibility and based upon that I've suggested that she not share the depth of our relationship so they have no idea of our plans and how serious the relationship is.

What does it take in money and time to attain a Court Order for sole custody in Thailand? Ironically this route would be the most harmonious for all involved since we are happy having the child raised in her native country, but let's face it, in Thailand things do not always work that way. The family is fairly well-to-do, and I have no doubt that they could easily overpower my finances if it comes to a Court battle--they'd prevail if it went that way.

Any suggestions as to how to make this work for the benefit of all? Or at least how to do this without "mom" losing her custodial rights?

I can't help but wonder if a pre-emptive strike might be much better than a long drawn out and possibly un-winnable battle that "could" manifest itself.

Thanks

Edited by jsflynn603, 2011-01-25 20:18:22.


#2 Mario2008

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Posted 2011-01-25 20:24:37

What do you mean with no monk wedding and no government registration?

In Thailand only a wedding done at the amphur (district office) is legal. If she didn't go to the district office to get married and got a marriage certificate at the amphur she is not married. Any other wedding ceremony is not legal.

Not being married means she has by deafult sole custody over the child, as the fahter obviously didn't legtimize the child (for which he would have to go to court and the mother would recieve a summons).

Having sole custody means she alone determines the place where the child stays. The "grandparents" are nothing as far as the law is concerned.

#3 jsflynn603

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Posted 2011-01-25 21:44:52

What do you mean with no monk wedding and no government registration?

In Thailand only a wedding done at the amphur (district office) is legal. If she didn't go to the district office to get married and got a marriage certificate at the amphur she is not married. Any other wedding ceremony is not legal.

Not being married means she has by deafult sole custody over the child, as the fahter obviously didn't legtimize the child (for which he would have to go to court and the mother would recieve a summons).

Having sole custody means she alone determines the place where the child stays. The "grandparents" are nothing as far as the law is concerned.


Thank you for your response.

Yes, I realize that the "marriage" is a non-marriage since the paperwork was not done.

The worrisome detail to me is the potential that the biological father could go to Court, and could expect her to come back leading to a very expensive scenario including lawyer fees and airfare, and reading the referenced thread it seems that many games can be played leading to extreme costs. (multiple court dates where one party simply does not show up and the case is extended leading to huge costs for the party that must travel a distance)

Is Thailand a signor of the Hague Convention? If so my understanding (which may well be wrong) is that the biological father must sign a release allowing the child to leave the country even, in the case of one post in the aforementioned thread, the father is in prison serving a sentence for rape. In the absence of a release the Hague Convention (I think) would refer any question of custody back to the place where the child had spent the past two years--again resulting in a battle where expenses would mount rapidly.

So my question still stands--would a pre-emptive Court Order prevent what you imply is possible: "(for which he would have to go to court and the mother would recieve a summons)"

It's that very scenario, that if it is at all possible, frightens me....

#4 Mario2008

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Posted 2011-01-26 08:54:40

Right now the father is nothing. Your GF cannot get sole custody from the courts, as she already has it. Yes, he can go to court. The question is will he and where will the child be when he goes to court.

Thailand and the US are not parties to the Hague Convention.

If the father wants to claim his parenthood, he will need to go to court. In the end he will be recognized as the father, which will also make him liable to paying child support. I'm guessing he doesn't want that, but it is not that much. The grand parents may want that he does. But what will they in the end get?

Becoming the father of the child doesn't automatically mean he has shared custody with the mother, that is a different process which the mother can object too.
If the father would get shared custody he would get maybe a weekend every two weeks. That is for him to spent with the child and not for the grand parents to spent with the child. If the father doesn't use that right and the child would go to the grandparents, the mother can object to this.
I don't think the father would want to spend every now and than some time with his child in which he for so long hasn't taken any interest.
And a judge will take that into consideration.


She can get a form from the amphur showing that she has sole custody and apply for a passport for the child with that without permission from the biological father.
No permission is needed to leave the country with the child.

A Thai passport is normally ready in 3 days and costs 1,000 baht.

#5 MikeyIdea

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Posted 2011-01-26 10:02:46

Thailand is not a signatory of the Hague convention

The potential that the father could go to court
The grand parents can legally use the father to do this, yes, but I highly doubt they will. Unless you give them a good reason. If you continue to pay some money for the upbringing of the child during the time, then it will hardly happen. What could happen though is inflation, the grand parents demand more money and then more money again. Then again, probably not as you say that they are decently well off

You say the grandparents love the child and they must realise that it is likely that the child one day will not be with them any longer. I can easily believe that the grandparents will take the child (refuse to give the mother the child) if the mother tells them that she will take the child to America next month. I don't think that the child will be allowed to go to America during the holidays either. The mother pushing that could be a good reason so to speak. But would anything long term be gained by waiting?

Thai law recognises the concept "physical custodian", the mother could get a lawyer to write an agreement giving the grand mother the right to take care of the child in her absence. With a careful end date specified, the father cannot use abandonment as a reason to get sole custody. Unfortunately, the mother must still show up if the father brings the issue of legitimization and custody to juvenile court – most likely. The agreement is between grandparents and mother while the issue in court would be between mother and father, different case really. I don't know if the mother can request to delay the issue due to the obviously planned absence. Better check with a lawyer

I'm now wondering if she ought to try to obtain a Court Order giving her sole custody, making what the child does her sole decision

Well, as Mario2008 already said, the mother already has sole custody and what the child does is already her sole decision

If we move forward to after you finished your education then. The mother will use her right and take the child with her, the grandparents are really nothing in the eyes of the law, they don't even have status enough to get the issue to court, but the father does. If he takes the issue to Thai Juvenile court (first requesting to get legitimized, recognised as legal father and then awarded shared or sole custody whatever), then the mother will be summoned and she MUST show up. If she does not, then the father will eventually be granted sole custody. That must not happen

Not easy

What if the mother goes to court first? I have no experience in the particulars of this case so you need to check with a lawyer experienced in family law. This is what I expect. Father has no rights and no obligations now, mother doesn't want the fathers right to his child recognised so what does she sue for? Being allowed to take the child abroad? Doesn't she already have that right? The father will sue back requesting to be legitimized and get shared custody, or sole custody to be able to stop the mother from taking his child abroad maybe. There is no doubt that the father will be granted shared custody (in my mind). A fathers right to parental rights will only be removed/refused if he is a danger for the child really. Never caring for the child doesn't make him that, it only makes him a useless father. How to get hard evidence that father is not in any way involved in the childs upbringing and does not even visit her? That's the key point I think

I would expect that the mother can get a passport for the child issued without the fathers signature by going to the amphur and request form por kor 14 (states sole custody) first and then just saying that the father abandoned the child a long time ago (in essence true) and use form por kor 14 as evidence of sole custody when handing in the passport application. I would do this before opening the can of worms

One more point to make is that the child is 8 years old. She clearly has a right to make her voice heard according to Thai law (starts at 7 here). I would be very interested in knowing what SHE thinks of all this. And what would she think if the mother leaves her in the care of the grandparents for 2 years and then come back to fetch her

This article is pretty good http://www.thailawon...an><br /><br />This was a difficult one :)

Good Luck
Michael

Edit: Mario2008 answered while I typed, thanks for confirming, mother can get passport

Edited by MikeyIdea, 2011-01-26 10:10:40.






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