International Child Custody Issues And Thai Courts.

[soundman]

My best friend's custody battle for his daughter.

In 2000 I had a one night stand with a 19 year old girl from Isaan which resulted in the birth of a beautiful healthy happy baby girl in a Bangkok hospital. $US 750 paid to Bumrungrad hospital confirmed thru DNA paternity testing that I was indeed the biological father. I never intended to procreate but life throws you a few oddballs you aren't expecting and I felt that I had to take responsibility for my actions. In reality that meant that I wanted primary custody of my daughter in Australia with me. The mother sure was a wild child and she saw our daughter about once a month on the odd occasion she stopped partying long enough to sober up.

The child grew up with her Thai grandmother and I announced from the start that I desired sole custody. The Thai family promised that when the child was "old" enough they would hand her over to me in Australia for a Western education. Unfortunately they grew very fond of my monthly maintenance payments and being able to tell all their friends that the child attended a prestigious international school (at my expense) gained them a great deal of face. As was to be expected the Thai family was in no hurry to hand over the child so I had to use the carrot and the stick approach with the stick proving to be more effective in the end.

My experience has taken me thru many years of Thai family court which I eventually won custody and under court orders I brought my daughter to Australia in late 2006 where she currently lives with me and is thriving in Australian culture. This submission outlines what I have learned about the court process in Thailand and I sincerely hope that it can help others who are going thru the same gut wrenching journey that I undertook.

Judges

Thai family court is presided over by 5 judges at any one time. They are conservative, dignified and generally mature in age but I did occasionally see a few younger judges. Judges all consider themselves to be eminent and all expect a great degree of respect. The judge in the middle of the bench is always the senior judge and commands the most respect. Any judge can interrupt proceedings to ask a question or pass a comment. One should only speak to judges when spoken to. All courtroom discussion takes place in the Thai language. A Westerner is expected to bring their own official interpreter who is approved by the court. I rarely noticed the judges smile or laugh not much different to the West I suppose!

Precedence

Western courts always try very hard to follow precedence and maintain consistency between various cases. People attending Western courts have a reasonable idea what to expect in the way of a judgment or at the very least the range of possible outcomes.

The judges in Thai court are not constrained by the need to follow any kind of legal precedence that may have been set from earlier judgments in similar cases. It is often difficult to predict what kind of outcome to expect from a Thai court. Thai judges can often place a great deal of weight on emotion testimony or evidence and they can make a decision based on a positive or negative feeling they get from somebody giving evidence or presenting a case.

Thai judges can go out on a limb with a judgment and nobody is ever going to dare question it.

Disadvantage for Farang

There is NO disadvantage WHATSOEVER being a farang in a Thai court when you are arguing against a Thai person. I personally found some of the judges were fascinated with me and looked at me in a quizzical manner whilst other judges were completely disinterested in me and paid little attention. Above all, the judges applied the law as they saw it and provided I presented myself in a respectable manner, there was no issue with me being farang. There was no nationalistic pride that crept in to prevent me the farang from having a fair hearing.

My daughter holds dual Thai/Australian citizenship. The Thai court was aware that if I was successful in gaining primary custody of my daughter that I would take her out of Thailand and back to Australia. This did not present a problem for them and it did not go against me at any time in my dealings with the Thai court.

Where I believe most farangs are at a disadvantage is that they are not properly prepared by their Thai lawyers and are not well presented and don't know how to be respectful to the judges. In my case I was extensively prepared by my lawyers, instructed how to dress, instructed EXACTLY what to say (no more, no less) and presented to the judges in a very precise manner.

Choosing the right lawyer is also crucial to the farang getting a fair hearing (see next item).

Choosing the right lawyer

At the suggestion of a very knowledgeable person, I chose one of the most expensive legal firms in Bangkok to represent me. Tilleke & Gibbins is an international legal company with head office in the US. They charge in US dollars and they charge at US rates very expensive but I had a very capable team of hot-shot lawyers represent me and I was very impressed with their competency and performance. Some of the lawyers were Thai and some were American, all of them spoke perfect English and had training both in the US and Thailand. The lawyer heading my case specifically dealt with Thai family law.

Before I enlisted the services of Tilleke & Gibbens I spoke with many different Thai lawyers, all claiming to have knowledge of Thai family law and all of them clearly not having a clue what the hel_l they were doing. But they were quite happy to take my money. I also got the impression that whilst the Thai judges are impartial to a farang taking a Thai to court over custody, the Thai lawyer representing the farang in court often does not fight very hard for the Westerner because they feel it is unpatriotic of them. Thais must all stick together. I certainly got this impression early on from one of the lawyers representing me from Tilleke & Gibbins so I had him thrown off the team. I think he lost some face from that around his office but I was there to win, not to protect some useless lawyer's pride.

I also suspect that farangs can rub their lawyers up the wrong way thru not observing Thai customs and trying to do things the farang way. This can cause the lawyers to become discouraged from doing their best to represent the farang.

No matter what country you are in, ultimately family law is a long, hard and protracted battle and if your lawyers are not determined to fight as hard as they can for the long haul then you've got the wrong lawyers.

Mother / Father / Child

In Western court the mother has a distinct advantage over the father due to the biological fact that mothers possess an ability to nurture children better than a father can. What court in the Western world would dare take primary custody of a child away from the mother and give it to the father unless the mother is a convicted drug dealer or armed robber? Even then the mother will probably still win in court. My very expensive Australian family lawyer explained to me in no uncertain terms that if I had fought my custody case in an Australian court I had no chance whatsoever of winning custody of my daughter.

As the mother rarely had contact with the child (even though they both resided in Bangkok) and the child grew up with her Thai grandmother, the Australian court would have viewed the grandmother as the primary care giver and I would have had to take the grandmother to court to fight for primary custody. I would have lost.

In Thailand the grandmother is largely irrelevant as far as Thai family court is concerned. The case is strictly between the mother and the father.

In poor countries the traditional view that the family is the father's property still carries some weight because it is a very practical way of dealing with social issues particularly as there is no social security department to take care of a divorced mother with 3 kids to support and no other Thai guy will want to marry her. There is no child maintenance or alimony payments payable to the mother in Thailand as there is no government department to administer any such payments. The Thai court knows that the father is probably the bread winner of the family, his income, lifestyle and position in society is not affected by the divorce and he is free to remarry and take the kids with him to form a new family. The kids are generally in a better position with the father in a new family. To some degree the only time the mother gets primary custody of the children is when the father is not interested in having primary custody and relinquishes the responsibility to the mother.

However the Thai court is very conscious that a mother plays a far more important role of nurturing children, particularly children of a younger age and this does give great strength to the mother's case for obtaining primary custody.

The Thai court is also reluctant to hand over primary custody to a mother who has remarried or has a new partner, especially where female children are involved because of fears for the girl's safety. Sexual abuse is not spoken about in Thailand but Thai court is acutely aware that it is very common. In my case, when I gave evidence my lawyers instructed me to make a very discrete reference to the fact that I had concerns about my daughter's safety around the mother's new boyfriend, but say no more than that. It would carry a lot of weight on its own and did not need to be emphasized.

For these reasons my assessment is that in Thai family court mothers and fathers have an equal chance of gaining primary custody of the children. Neither has an advantage over the other.

Custody Law In Thailand

In the West a biological father is required by law to take financial responsibility for his children. From the moment the child is born (provided the mother nominates him on the birth certificate) he has 50% custody of the child. Of course this may not necessarily mean that the father has primary custody of the child. The father cannot sign away his responsibilities unless in the rare event that the mother agrees to adopt out the child.

Thailand is quite different. In my case I was nominated on the birth certificate when my daughter was born (the mother was certain I was the one). However in the eyes of Thai law I started off with 0% custody of the child and I had to go to court just to obtain 50% custody. Naturally the Thai family opposed my application to the court and even refused to attend court. I flew over for numerous court dates and the Thai family continually did a no-show. I pleaded with the court to hear the case in their absence but the Thai judges refused to make a determination without the mother present. The mother's dishonest excuse was that she did not know about the court date and when she did, she was scared to attend court. This looked bad for her and painted her in a bad light but it did not get me the positive result I wanted and it cost me a lot of money in airfares, legal fees and time away from my business.

Eventually the case was heard when the mother finally turned up because she was told that the Thai court would eventually have to hear the case with or without her and there was nothing to be scared of. When the time came my lawyers carefully put forward my case and I gave testimony before the court. I explained that I had taken financial responsibility for my daughter since she was born and I had flown to Thailand many times to develop a strong bond with her. I put forward extensive documentation to substantiate my testimony. The mother and grandmother then got up and told the court how they didn't trust me and I didn't do enough to look after my daughter and didn't pay them enough money etc etc etc. In response the judges were very reluctant to make a judgment, they preferred to negotiate extensively with the mother and grandmother in order to persuade them to consent to my obtaining 50% custody of the child and the mother would drop from 100% custody down to equal 50% custody. They asserted that it was in the child's best interest to have a father and so the mother should consent to my application. The judges were very nice about it but they were unwavering and eventually the mother had no choice but to back down and agree to me obtaining 50% custody.

Once I had obtained 50% custody, in theory I had an equal say in everything that happened with my daughter. Thai law states that we must negotiate on all areas of my daughter's upbringing. I quickly learned that people from Isaan do not actually comprehend the concept of negotiation and arbitration as they have never been taught how to listen to the other side of an argument and cooperate with another party. They literally could not compromise with me on any issue whatsoever. They had convinced themselves from an early point that because I refused to marry the alcoholic mother, I was a bad guy and no matter what I did or how much money I paid them, I was always a bad guy. I could tell you many stories of what they did and the games they played that would leave you shocked. I tried as hard as I could to encourage them with financial incentives to hand over custody of the child to me in Australia but in the end I had to resort to the stick approach to achieve my goals. So back to court we went.

I applied to the Thai court to obtain 100% custody of my daughter and remove all custodial rights the mother had. This was a very bold and ambitious challenge to undertake. At the same time I offered the Thai family a very substantial amount of money and fortunately for me the mother was about to travel to the US on a fiancé visa to marry her 43 year old boyfriend of 2 years. The mother had spent very little time with the child, possessed precious little maternal instinct and would have a hard enough time adapting to US culture without the added burden of a daughter to care for. The Thai family knew I would paint a picture of the mother as negligent in the past and about to abandon the child to move to America. They also knew how determined I was, how much financial resources I had at my disposal and how good my legal team was. They had no choice but to give in.

At any time in the future the mother can make an application to the Thai court to try to reacquire 50% custody of the child. It would be very difficult for her to do so and would also be relatively pointless as the child now resides in Australia with me and the Thai family court no longer has jurisdiction over the case.

My Thai lawyers never had any doubt that I would succeed in my endeavor to obtain primary custody of my daughter in Australia. It would just take considerable time and a very significant amount of money.

The child's best interests

'The child's best interests" is the most often heard expression both in Western family court and in Thai family court. The Thai judges are very mindful of what is in the child's best interests so it is vitally important to always approach the Thai court with that principal firmly in mind. The difference between Thai and Western court is that what is in the child's best interest in the West may not necessarily equate to what is in the child's best interest in Thailand.

The bottom line is that when building a case, you must always construct and present it in such a way that it revolves completely around what is in the child's best interests. If you can put forward a case that clearly has the child's best interests in mind then it is very difficult for the child's other biological parent to argue with you or for the court to ignore you. If you can provide conclusive evidence that you are acting in "the child's best interests" then you have a very strong and compelling argument. I cannot emphasize this point enough.

Character

It is vital to present yourself as somebody of good character. Your behavior, appearance, testimony and documents presented to the court should all bear this out.

In my specific case, the mother left school at 12 years of age, could not read or write, had never worked a job in her life, had no money whatsoever, had spent very little time with the child, was alcoholic, always put her own self interest before her daughter and was about the most negligent mother you could ever possibly meet.

All this mattered very little. My lawyers explained to me that there was nothing to be gained by attacking her character. The Thai judges would be able to see for themselves what kind of person she was. They would not know the full extent of her negligence as a mother but if our side was to point out her failures as a mother then we would also be putting ourselves in a bad light. We could only make very discreet and subtle references to the mother's character. For example being able to say that I paid for all of the international school fees was enough to imply that the mother was financially incapable of seeing to the child's welfare.

It was very difficult for me to trust the lawyers and keep my mouth shut about the mother and her Thai family. Throughout arbitration (between court appearances) they continually made false accusations about my neglectfulness as a father. I just wanted to get up and shout at them. I wanted to get up and tell the judges the true story about how bad these people are. But for many years right thru the entire process I stayed patient and let my lawyers be my advocate and do the talking Thai style. All smiles and sweet talking and many discussions taking place both at the law firm's offices and over lunch or dinner at the Thai family's restaurant of choice, all at my expense and all the while they talk in Thai to my lawyers about what a negligent father I am. My Thai lawyers had to listen to a lot of rubbish; it's just the Thai way.

I always knew in the back of my mind that if things started going badly then I would get up and tell the real story to the judges, not in some rant but in a well articulated and heart felt presentation to them. Fortunately it never came to that and if it did I would probably have lost before I even began my speech. No matter how bad the mother's character is, it is really off limits to bring that up in Thai court - what the judges can't work out for themselves the mother gets away with.

Dual Citizenship

When my daughter was born I immediately applied for her Australian citizenship by descent. It was duly granted and following that I obtained a passport for her. She traveled with her mother and grandmother to Australia on numerous occasions. When she passed thru Thai customs she was required to use her Thai passport. When she passed thru Australian customs she was required to use her Australian passport. She does not need a visa to travel between either country.

It would have been much easier and cheaper to fight the custody battle in Australia but my Australian family lawyer explained that there were two distinct problems with doing so. Firstly, without question I would lose the case. Secondly, the Australian court would consider that because the child's primary place of residence was Thailand, the case must be heard in Thai court. Even if I wanted to bring it to Australian family court, there was no possible way that I could get the Australian court to hear the case, regardless of the fact that she is an Australian citizen.

Child Abduction

In my darker moments I entertained the sinister idea of snatching my daughter from the grandmother, smuggling her out of Thailand thru a dodgy border crossing into Laos, Cambodia or Malaysia then a quick flight to Singapore and on to Australia. The main problem with this (other than the psychological damage it could do to my daughter) is that I am easy to locate in Australia. All the family needed to do was contact ANY lawyer in Thailand who would immediately look at a register of family lawyers in Australia, select any lawyer's name at random, call them up and explain the problem. The Australian lawyer would apply for legal aid in Australia and get it straight away so it would not cost the Thai family anything. The Australian lawyer would then walk straight into Australian family court and request an emergency injunction which would be granted immediately. Within days of me landing in Australia I would be hauled before the court and the hearing would last less than 5 minutes. I would be ordered to return the child to Thailand on the first available flight. If I refused then the child would be taken away from me and returned to the Thai family by a social worker appointed by the court. In all likelihood I would receive a very large bill for court costs, airfares and associated costs.

Any attempt by me to avoid the court appearance or disobey the court order would have serious consequences.

If I was to choose to abduct my daughter then I would have to sell up all my assets and live my life underground beyond the reach of the law. No point in going down that path.

Jurisdiction

Australian family court will only consider it has jurisdiction over the case if and when the child has finally become settled in Australia. In the court's view this will take two years of the child's residence in Australia. If I need to try to prove that the child is settled in Australia after one year of residence, I can present to the Australian court documentation and testimony demonstrating how the child has adapted to the Australian environment and the court may agree that the child has settled in Australia after one year.

If the Australian family court does not consider that the child has settled in Australia then it will refuse to hear any matter relating to child custody and will refer the matter back to Thai family court.

If the Australian family court considers that the child has settled in Australia but an application is brought before the Thai family court and the Thai family court request that the case be brought back to Thailand, the Australian family court will consider the Thai court's request but will be very unlikely to allow the matter to go back to Thailand as it will consider Thai family court no longer has jurisdiction over the case.

If the child resides in Thailand and the Thai family court makes a decision over the case, then for some reason the case is brought before the Australian family court, the Australian family court will consider all the facts that were brought before the Thai family court and if it feels that the Thai family court made a legal decision based on good faith then the Australian family court will be very likely to follow the judgment of the Thai family court.

The Hague Convention

The Hague convention is an international convention governing family law which most developed countries around the world, including Australia, are a signatory to. The Hague convention covers everything from custody disputes to child maintenance alimony payments. Family courts in all countries will refer to The Hague convention when dealing with issues which extend internationally beyond their borders.

Thailand does not have a good track record of international cooperation and does not sign up to many international accords including the Hague convention. This is very good for Western fathers of Thai children because it means that we are not required by international law to provide maintenance alimony payments to children in Thailand and also the fact that Western court does not usually find in favour of the father does not apply in Thailand.

A few years ago I was able to communicate with a very senior bureaucrat in the Australian department of social security, the government department with the task of collecting maintenance alimony payments from one parent and distributing it to the other. The senior bureaucrat explained to me that even if they wanted to collect maintenance alimony payments from me, there is no social security department in Thailand to communicate with, send the money to and have administer the funds to the mother. Any money I choose to send to Thailand to support my child was entirely up to me alone.

Claims of Abuse

After I gained custody of my daughter in Australia, the new American husband of the mother decided that my daughter should go to live with them in America. He pronounced that he loved my daughter very much and I did not love her enough because he had never heard me actually pronounce publicly that I love my daughter. He also got it in his head that the mother had somehow changed and was now ready to meet her maternal responsibilities. They had bought a house with a big back yard near a school and it was time for the child to be with her mother. It was evil of a father to deny a child its right to be with its mother. Worst of all I wasn't dealing with a lowly paid postal clerk, this guy is an upper level executive for a multinational firm with the financial means to match me dollar for dollar on expensive lawyers and he threatened me continually that he would sell his home to pay for lawyers to fight me in court.

I spoke at length with my Thai and Australian family lawyers to confirm my position. Both lawyers said I had nothing to fear as the horse has already left the gate and he can't roll back the clock. There is nothing he could do as the status I hold of custody over my daughter is rock solid. BUT....... all my lawyers said don't go anywhere near Thailand or America with the child because heaven forbid if he or the Thai family were to make scurrilous claims that I was interfering with and abusing my daughter then the authorities would have no choice but to act. They would automatically take the child out of harm's way whilst they investigate and this would mean that she would be removed from my care and most likely handed over to the Thai family for a period of weeks to months whilst social workers carried out their investigations.

The claims would eventually be found to be baseless but it is always risky going down this path and you never know what might happen.

Thai Pride

Money always greases the wheels of society in Thailand. I quite like this fact because money provides clarity and does away with any nonsense or emotions that might otherwise get in the way. For example if I live in Isaan and I run over my neighbour's cousin and break their leg then instead of having a big fight, we negotiate a fair amount to pay by way of compensation and once paid everybody is happy again and things get back to normal.

From the outset my lawyers said my entire custody battle would come down to money but the big problem was going to be how to hand over the money to the Thai family in such a way that they did not lose face from "selling" their child. All their neighbour's and friends knew the situation and would be very aware if one day the child disappeared and a couple of expensive new cars showed up in the driveway.

We thought long and hard about this problem and devised a strategy whereby we refused to "pay" for the child but we insisted on "supporting" Grandma because she had done such a good job raising the child for so many years. The mother was moving to America with a wealthy fiancé so she was not in need of money and was not particularly materialist anyway. Grandma was welcome to have us make monthly payments for the next 10 years (the same amount I had already been paying to look after my daughter) or she could take it as a lump sum. She took the lump sum.

What I have explained here about the transfer of money might not sound particularly important but it was a very difficult issue to overcome. How do you pay somebody money who sits down with you to negotiate year after year and tells you that they do not want money and they are not going to "sell" the child but they are poor and it is clear that they want money? You are not going to get custody of your child unless you pay them money. They had no way of expressing to us how to get around this problem of money and they were really just waiting for us to solve the problem for them.

So typically Thai.... they don't know what they want, they can't tell you what they want, and they can only tell you what they don't want. You have to keep guessing until you get it right.

Thai Bureaucracy

In Australia we complain about the high level of bureaucracy, but in truth countries like US, UK & Australia bureaucracy really is kept in check, mainland Europe seems to like a higher degree of bureaucracy. I would not like to try to start a new business in France for example. But those of us in the West who complain about bureaucracy should spare a thought for people living in the East. I believe India is the worst for pointless bureaucracy but Thailand is not much better.

Bureaucracy infests itself into all areas of Thai society and the family court system is not impervious to insanely senseless red tape.

For example I would attend a Thai family court appearance for some meaningless matter but afterwards I would have to wait 14 days for the court to produce a simple certificate to officially state that I had made the appearance. It is only then that I would have to fly back to Thailand and go to court to collect the document and take it to another Thai government building to meet with an official dressed in military uniform covered in important looking stripes and badges just to hand in the form. I wait all day to see the government official and when we finally get to see him, he just looks at my passport and then looks me up and down and takes the form. The Thai court or my Thai lawyers couldn't just mail the form to him, I had to fly over and hand it to him in person.

Bureaucracy breeds Bureaucracy especially in Third world countries.

Corruption

Personally I am not averse to a little gratuity under the table to obtain a favourable outcome. Especially when I can afford to pay more than my competition. I discreetly spoke to every lawyer I came in contact with about the possibility of paying somebody anybody a little bribe or two in order to expedite proceedings in my favour. No matter who I spoke to I was informed that this was not an option open to me. If corruption exists in the Thai family court system I certainly had no knowledge of it.

The closest I came to bending the rules was when my very expensive Thai lawyer was not happy with the decision of the judge during one of the many court hearings, we waited around the courtroom for lunch time and when the judges recessed for lunch my lawyer went back to the judge's chambers and argued the point of order feverishly until the judge agreed to the lawyer's opinion of the law. Whilst we were waiting for lunch the lawyer called up a few other judges to discuss the point of law and get their opinions so that the lawyer had plenty of ammunition when confronting the senior judge. I was quite amazed when we went back into court that afternoon and the judge officially reversed their earlier decision. My expensive Thai lawyers sure carried some weight in that court room.

The remaining points in this submission refer to more personal issues related to my situation.

Adapting to Australia

After I was successful in Thai court and the case was completed my daughter was brought to Australia by her mother and grandmother. My daughter took time to adapt to life in Australia and I could not rush the process. Her mother grew bored of Australia very quickly and left after seven days. She nearly forgot to say goodbye to my daughter at the airport as she was too focused about getting back to her American fiancée. Grandma stayed for 6 weeks and we got along very well, chiefly because I put her on a weekly allowance of US$150 which gave her independence and allowed her to make her own purchases. With my daughter in Australia I still had to do things the Thai way for a very long period and it took approximately 9 months to fully acclimatize her to Australia and treat her as I would an Australian born child. Some of the problems I encountered were discipline, diet, Australian slang and customs, actually eating at a table, making new fiends with local kids etc etc etc.

Discipline was a big problem because my daughter had been treated as a prima donna. She knew that compared to all the other kids she had grown up around she was special. She had all the best clothes, best toys, best school, best doctors whenever she got sick etc. She was a spoilt little Thai brat who got everything she ever wanted whenever she wanted it. I could not change this immediately, in fact I had to maintain this approach to her for some time after she arrived in Australia and only slowly did I start to reign in her freedoms. She could sense that I was starting to say the word "NO" more often and she put up quite a protest. It sure was a battle of minds in that first 12 months.

The most important thing I focused on was developing a strong sense of security around her. She had been uprooted from everything she ever knew and I had to make her feel secure and that she belonged with me and that no matter what happened I would always be there for her. I used many different techniques to broaden her security and I continue to focus on it to this day. I think kids from broken families need extra attention in this regard.

The Child's Emotions

Throughout the custody dispute I fought for my daughter's custody on two battle fronts the first was in Thai court but the second was in the Thai home where I had to win her confidence and her heart. I was acutely aware that even if I was successful in court and won full custody that if my daughter did not want to come and live with me in Australia then I would have no choice but to let her grow up with her grandmother in Thailand. I had to buy my daughter's affection because that is all that I had available to me on me frequent but short visits to Thailand. I made many visits to Thailand to see her and to appear in the numerous Thai court hearings. I could tell that she struggled with me because she had grown up around elderly small Thai women. Being a young, large, Western man must have been quite daunting for her. I could see that she felt a bond and a connection with me but she did struggle with her feelings towards me for a long time. When she started to master English in the international school our relationship blossomed. It was always in the back of my mind that if I was not successful in winning her over then I could not bring her to Australia I just couldn't put her thru it.

Money

Money greases the wheels of progress and any time I wanted the Thai family to do something for me it was easier to pay them rather than argue with them. For example I would be planning a trip to Thailand and I would want to take my daughter to Phuket or Samui. She would need to have her mother or her grandmother come along for the trip because I did not have a strong enough bond with her to do it alone. Instead of listening to a multitude of reasons why they could not come with me and why my daughter should not go with me at all, I would just say cool how does 2,000 baht a day sound for you to take care of your own child, with all travel, accommodation and food expenses thrown in too? I could pretty much get the Thai family to do anything I wanted for the right price. Everything is for sale in Thailand. Ethically and morally I didn't have a problem with buying off the in-laws. Of course I was setting a precedent and every trip they would always ask for more money but in truth they were costing me far less than the lawyers and the international school so I wasn't bothered by their request for me to pay for every bill the moment I landed in Bangkok. I am the farang the farang always pays all Thai people know that.

Actually I found that the Thai family was actually very nice and accommodating to me so long as I was doing exactly what they wanted. The animosity began the instant I wouldn't play ball and submit to their demands.

Education & Tutors

My daughter grew up around elderly Thai women so it was more than a little daunting for her when a tall white skinned young man with a big nose stepped off a plane and said "Hi, I'm your daddy". I had to think outside the square so I contracted the services of a tall white male teacher from the international school with similar physical features to me to provide extra tuition to my daughter in English during lunch times, before and after school. I instructed the teacher to just play games with her and have a fun time but all the time talking endlessly in English. My daughter's mother was very jealous and complained bitterly about the tutoring so I begged her to teach my daughter English herself and I even said I was happy to pay her to do it but she was far too lazy and preferred nightclub dance floors to text books. In the end the international school and additional English tutoring worked brilliantly. After 15 months my daughter was perfectly bilingual and I was in a position to really develop my relationship with her every three months I traveled to Thailand. Once upon a time she would cry when I arrived in Bangkok and would refuse to stay in the same room with me but now she loved it when I flew into town and we would go every day to enjoy the fun activities I would think up.

The international school was excellent preparation for her transition to Australia and especially Australian school as the curriculum and teaching methods were quite close to Australian standards. The first day she walked into an Australian school she was at the exact same level of education and development as all the Aussie kids her age. She required no specialized transitional classes and she never fell behind in any area of her education.

Financial Cost

Do you really want to know how much everything cost me? The entire legal process cost around $100,000 including lawyers, airfares for court appearances, payments to the Thai family etc. This does not include international school fees, private tuition fees, maintenance payments to the Thai family for 5 ½ years, lost income for my time away from my business, huge phone bills to and from Thailand etc. I got a fantastic little daughter so of course it was cheap at the price but I could not afford this on my own and I had substantial financial assistance from my family. I don't think there was a cheaper or easier way to resolve the matter.

Determination

I have done some very hard things in my life but fighting for custody of my daughter was one of the toughest most mentally, emotionally and financially draining challenges I have ever undertaken. Don't bother going down this path unless you are very determined and strong willed, even then prepare yourself for a grueling battle.

Family & Friends

I could not have succeeded without the support of family & close friends. When I needed advice, inspiration or just understanding I would lean on family and friends. Sometimes I felt embarrassed being such a burden but I needed their help to give me the determination to get thru, particularly in times where I was not disillusioned and lacking clarity of thought. In business and social life I am a very independent person but this custody battle really took a lot out of me and I realized I simply could not have got thru alone.

Research

I spent a great deal of time researching not only Thai and Australian law but I also sought out advice from specialists who deal with multi cultural kids and techniques for parenting where the child will undertake a change to everything they have come to know in their life. I was going to put my daughter thru a change of primary care giver, change of environment, diet, language, school, teaching methods etc etc. All the experts I spoke to gave a consistent message to me that the worst time to resettle a child in Australia was between the age of 6 years of age thru to 16 years of age. If I did not win custody of my child by the time she turned 6 then I should strongly consider waiting until when was approaching adulthood at age 16 before I brought her to Australia. The reason for this is that an individual needs a firm grounding in one culture and if I was to uproot her half way thru the developmental stage then the individual would always have a foot in each culture but never feel like they truly belonged to one or the other.

I am no expert about these things but it really did make sense to me. I have actually seen a number of examples of individuals torn between two cultures with no real grounding so I did not want to take the risk with my daughter. That meant that the clock was ticking and by the time she turned five I was definitely feeling the pressure to bring the custody issue to a head once and for all.

Language

Having lived in Australia for 21 months my daughter claims she can no longer speak Thai. I took her to the Thai school many times but she stubbornly would not participate or join in speaking Thai with any of the students or teachers. Language experts in Australia assure me that with the 5½ years of speaking Thai already back in Thailand she will have it all locked away in her memory and whilst it may get a little rusty, she will not lose it. When she is ready it will all come flowing back. These days my daughter says it gives her a headache to try to talk to grandma on the phone and she refuses to do it. I just hope the experts are right and she has the ability to communicate in Thai with her Thai family in the future.

Thai Family

The Thai family told me they wanted the child to live with me in Australia to get a Western education but the truth is that was never really what they wanted. What they really wanted was to keep the child in Thailand attending international school with me picking up the tab for all the expenses and supporting the lifestyle. My basic argument I put forward to the Thai family was why don't you give me the child and I will give you millions of baht instead of giving it to the expensive lawyers to fight you? The Thai family's basic argument back to me was why don't you give us all the money you are spending on expensive lawyers so we can do a better job of looking after the child? Don't you love your daughter enough to do that? I would respond by saying I love my daughter so much that I want to take care of her in Australia. They would then say but if you loved you daughter you would let her stay in Thailand where she can grow up with a very large family including grandparents, great grandparents, uncles, aunts, zillions of cousins, chickens, snakes, bugs etc etc. They had a good point. In Thailand she was a happy-go-lucky child of the village with a large circle of friends and family around her to provide comfort and security. Families in the West are generally smaller and live more spread out. There are many advantages to growing up in the West but a large family living in close proximity (under the one roof) is not one of them. I was at a clear disadvantage in this regard.

Pets

I knew that in Australia my family was smaller than what my daughter was used to. In Thailand she would live in a 3 bedroom home along with 5 to 12 other family members on any given night. A few years ago I bought a dog so that at least when she came to Australia she had something else to make her feel warm. It was the best idea I could have possibly made and our little dog is a very important and loved member of the family. Never underestimate the importance of a good family pet.

My Girlfriend

I have a very supportive girlfriend who I live together with. Things would have been real hard for me in Australia without her help that's for sure. Her family and my family have put a lot of hard work into the positive development of my daughter since she arrived in Australia. We have been very lucky and things have gone amazingly well for us. At first there was a bit of animosity between my girlfriend and my daughters mum when we were all in the same room together. I sent them out on a few nights to go shopping and nightclubbing with my visa card and they eventually worked things out between themselves. They are not going to be best friends but there is some level of mutual respect and they each know their place.

Questions

Every situation is different and I am happy to offer any suggestions or advice that I can if any readers have queries. The best advice I can give is go find the most expensive Thai lawyer you can afford that specializes exclusively in Thai family law. Anything less than that and you are taking a big gamble.

Hope this of interest and some help in clarifying custody issues with stubborn Thai families.

<snip>

Soundman.

Edited August 27, 2010 by soundman

[JacknDanny]

Excellent article.

The most important paragraph being the last one.

I successfully won sole custody of my son over 4 years ago. The whole process took about 3 months at a total cost of 100,000 baht. It all went without a single hitch or problem. I think that a pertinent remark for any 'new' father, is to make sure your name is put on the Birth Certificate.

[0Mix1up]

very very informative

thanks sound dude and the father

Edited November 21, 2008 by 0Mix1up

[2008bangkok]

Child Abduction

In my darker moments I entertained the sinister idea of snatching my daughter from the grandmother, smuggling her out of Thailand thru a dodgy border crossing into Laos, Cambodia or Malaysia then a quick flight to Singapore and on to Australia. The main problem with this (other than the psychological damage it could do to my daughter) is that I am easy to locate in Australia. All the family needed to do was contact ANY lawyer in Thailand who would immediately look at a register of family lawyers in Australia, select any lawyer's name at random, call them up and explain the problem. The Australian lawyer would apply for legal aid in Australia and get it straight away so it would not cost the Thai family anything. The Australian lawyer would then walk straight into Australian family court and request an emergency injunction which would be granted immediately. Within days of me landing in Australia I would be hauled before the court and the hearing would last less than 5 minutes. I would be ordered to return the child to Thailand on the first available flight. If I refused then the child would be taken away from me and returned to the Thai family by a social worker appointed by the court. In all likelihood I would receive a very large bill for court costs, airfares and associated costs.

Any attempt by me to avoid the court appearance or disobey the court order would have serious consequences.

If I was to choose to abduct my daughter then I would have to sell up all my assets and live my life underground beyond the reach of the law. No point in going down that path.

Good article but this info is quite correct, the thai system does not see child abduction so to speak as a crime as this link explains..so you could of ust legally took her to australia with you

http://travel.state.gov/family/abduction/c...ountry_528.html

but nice topic and well done

[torrenova]

Some good points but I also do not agree that the Australian system would have acted as the OP describes were his daughter to go with him to Australia. He is the legal true father and no way would the Australian government put a baby on a plane back to Thailand to a very uncertain future.

Also, I disagree with the OP's willingness to hand money over at every opportunity. He has bought his daughter and though I know what some of these terrible families are like, feeding their greed is only going to perpetuate it.

As to what the OP has achieved then let us be very clear. He has the legal right to remain in Thailand with his daughter (visa excepted) and have 100% sole custody. He did not need to do that to move his daughter to Australia. In his case I would probably just taken the child to the airport and got on a plane to Australia.

[Mario2008]

Judges don't like it when people take matters in their own hands.

Another point is the age of the child. People often forget that children have (human)rights too. Taking a child away from a parent by the other parent against its will can violate the childs rights.

Edited November 27, 2008 by Mario2008

[shielded220011]

Soundman thank you very much, excellent points.

I am going through this now with my daughter, except the mother left years ago

and nowhere to be found. I can't contact her to go to court and

to make matters more difficult the mother is also deaf.

Thanks for the info, will apply what is best in my case.

Edited December 4, 2008 by shielded220011

[atyclb]

Tremendous post, thanks.

I too have a young child with grandma in thailand, mother abroad. Many similarities but some distinct differences between our cases, being positive for me.

In Thai family court a judge very firmly told wifes family THEY are responsible for supporting their family, and not me. The Judge and I both agreed I should cover her food and school costs.

Judges are not stupid nor are they fooled by obvious money grabbing tactics.

One week after that agreement I went to visit my daughter and was hassled to no end by family trying to get considerably more money. They said if I didn't, the following week I would lose a lot of money in court. Total, unsophisticated scamming lies, (to say it politely) They have done their best to block my access and it has taken threats of police intervention(not respecting Thai court) to get cooperation.

Anyway my lawyer agreed with me that paying it would only empower them to try to get more, and they are akin to terrorists, if not lower, in that they are using a child as a way to get money.

Clearly this mentality is not representative of thai people in general, but of some, and surely exists in developed countries as well, however in thailand westerners stand out to some people that see us as but a way to "get your money for nothing, and your checks for free"

I have developed friendships with upper society Thai people that have all sided with me, that is once they got to witness what wifes family is doing. One such friend said "the reason we do not socialize with them is not because they are poor, but because of their lifestyle"

[Goinghomesoon]

Some good points but I also do not agree that the Australian system would have acted as the OP describes were his daughter to go with him to Australia. He is the legal true father and no way would the Australian government put a baby on a plane back to Thailand to a very uncertain future.

While the above is currently true, if Thailand does implement the Hague Convention then this will change. One of the key aims of the Hague is to ensure that custody cases are heard in the country where the child is habitually resident. Thus if a child who normally resides in Thailand is snatched and taken to Australia, the courts in Oz may well return the child to Thailand until a custody decision is made.

A very good document explaining how the Hague works is here. There are some interesting stats in there on international child abductions involving Australian children www.iss.org.au/documents/ChildAbductionReport05_000.pdf

[ArranP]

Interesting read, I have noted the contact details of the lawyer firm and may have to contact them in the near future.

My wife arrived in Thailand 4 weeks ago, our daughter (british born) and me arrived on a separate flight 1 week ago. We were together in her home town of Nakhon Sawan when my wife told me to leave. I am now in Phuket waiting to see what her intentions are before making my next move, passports are with me.

Reading this article it seems a high probability our daughter would be handed back to me (after a period of time and effort), however if my wife chooses to "dissappear", can these lawyers find her or do they know people who can ?

[Mario2008]

Note that in he article the child was raised by the grand mother, not the mother. If the mother takes care of the child herself the courts will want to see more proof that the mother is unfit to raise the child and therefor you should be awarded sole costudy.

I hope you can mend things with your wife, as that is always the best solution.

[ArranP]

Thanks for the reply Mario, however at this time, if I may I would not like to digress from my question....

If my wife chooses to "dissappear", can these lawyers find her or do they know people who can ?

[Mario2008]

There are always private eyes available who can track someone. One would have to break off all contacts etc to realy disapear.

[wolfmanjack]

I know 2 different fathers with 100% custody of their sons and they both said that the fact the mothers were ex "______" won the cases for them. they did not let the judges figure it out for themselves either. Their lawyers made it a point to attack the mothers implied lack of morality by the way of their former profession. This was in Chiang Mai court though. maybe the judges here look at it differently.

[ArranP]

Thanks to you both.

I plan to give my wife some time to collect her thoughts and choose what she wants to do, If her intention is to break up then I make contact with the lawyers.

It is my preference for my daughter to grow up with her mother and father, however I do not want her to grow up in poverty which is her mothers environment in Thailand.

[Livinginexile]

Thanks Soundman, a very interesting read.

[coventry]

Judges don't like it when people take matters in their own hands.

Another point is the age of the child. People often forget that children have (human)rights too. Taking a child away from a parent by the other parent against its will can violate the childs rights.

I think the information you gave is wrong about "children have (human) rights too". I assume you talk about Thai children ?

"Parental Kidnapping is not a crime in Thailand and Thai authorities will not issue a warrent or become involved should one parent take a child without the other parent's consent". I agree with Torrenova. Just remove the child from Thailand, "child kidnapping" isn't a criminal offence.

[coventry]

I'm sorry I should have disclosed my source of information.

It was on

In my previous post I should have said "Parental child kidnapping isn't a criminal offence"

Edited June 1, 2009 by coventry

[Mario2008]

Judges don't like it when people take matters in their own hands.

Another point is the age of the child. People often forget that children have (human)rights too. Taking a child away from a parent by the other parent against its will can violate the childs rights.

I think the information you gave is wrong about "children have (human) rights too". I assume you talk about Thai children ?

"Parental Kidnapping is not a crime in Thailand and Thai authorities will not issue a warrent or become involved should one parent take a child without the other parent's consent". I agree with Torrenova. Just remove the child from Thailand, "child kidnapping" isn't a criminal offence.

A child has human rights too. When a child is taken away against his will, his human rights are violated too. That can be reason for a court to appoint a special counsel who will act on behalf of the child and petition the court to take (emergency) action.

Kidnap a child who wants to stay with his parent in thailand to a EU member state and the child will have legal options itself through a special counsil and the older the child the less likely it is that a court won't return the child within a few days to Thailand.

[coventry]

A child has human rights too. When a child is taken away against his will, his human rights are violated too. That can be reason for a court to appoint a special counsel who will act on behalf of the child and petition the court to take (emergency) action.

Kidnap a child who wants to stay with his parent in thailand to a EU member state and the child will have legal options itself through a special counsil and the older the child the less likely it is that a court won't return the child within a few days to Thailand.

As far as my reading has it, the only right a child has in Thailand is to receive medical treatment and medicine. "When a child is taken away against his will, his human rights are violated too." That may be right in your eyes, and other peoples, but legally in Thailand it's not against the law, so the childs rights haven't been violated. Edited June 1, 2009 by coventry

[Mario2008]

A child has human rights too. When a child is taken away against his will, his human rights are violated too. That can be reason for a court to appoint a special counsel who will act on behalf of the child and petition the court to take (emergency) action.

Kidnap a child who wants to stay with his parent in thailand to a EU member state and the child will have legal options itself through a special counsil and the older the child the less likely it is that a court won't return the child within a few days to Thailand.

As far as my reading has it, the only right a child has in Thailand is to receive medical treatment and medicine. "When a child is taken away against his will, his human rights are violated too." That may be right in your eyes, and other peoples, but legally in Thailand it's not against the law, so the childs rights haven't been violated.

That parental kidnapping is not a crime doesn't mean it isn't a violation of ones human rights. That are 2 completely different things. Thaiand has signed the convention on the rights of the child, which gives children rights that have to be respected and a Thai court a tool to act in the interest of the child.

[hansnl]

This so called 'article' has been posted before in another thread.

quote deleted because of flaming - mario2008

/quote]

Wow Philo!

The article, posted before or not, is clear nd informative.

Lots of points might be interesting for people in the same situation.

Commendable he wants to take care of the product of his one night stand, I know some people who don't.

Feeling superior? He just tells what he sees, feels and does.

Does he love his child? Going the lengths he goes, maybe he does.

Australia is reckoned to be a western country, there are more western countries that have no culture at all.

Those countries even think they are superior

Using dollars, US or AUS in this article does not take away the information in the article.

Money, in a lot of countries, is the engine that keeps things running.

And when you are pisspot poor, and only have face, imagines or real, the one is the means to the other, and maybe the other way around.

In this article I see a lot of things a friend of mine underwent.

Different problem, but lot of things were the same in the court.

[philo]

I have been warned by a moderator that my post - quoted above - is flaming. If the gentleman 'hansnl' doesn't mind, may be the qoute should be deleted also.

Yours,

philo

Edited June 5, 2009 by philo

[Mario2008]

The quoted post has now been deleted by me - mario2008.

[anon345535]

wow excellent read.

[tjosh]

Your article is excellent i am in a similar position but am from UK do you think the legal position would be the same for me.

I am also sometimes thinking of doing a runner with my baby boy you say they could get an extradition order straight away but what then is the meaning of this from Thai gov website:

GENERAL INFORMATION: Parental Kidnapping is not a crime in Thailand and Thai authorities will not issue a warrant or become involved should one parent take a child without the other parent's authorization. The Hague Convention on the Civil Aspects of International Child Abduction cannot be invoked if a child is taken from the United States to Thailand, or vice versa, by one parent against the wishes of the other parent or in violation of a U.S. custody order.

Does this not suggest nothing could be done?

Would love to know your opinion

thanks

Josh

[tjosh]

Does anyone actually know what would happen if one simply took ones child on a plane out of thailand to ones home country. I am near to doing just that i am from UK. Any actual facts on what would happen please let me know

thanks

[Mario2008]

Taking the away the child will only mean that you have possesion of the child. At must a custody battle will have to be fought in the UK instead of in Thailand. You taking matters in your own hands will be looked upon less favourable by a judge.

It will also complicate a divorce.

[bwalker1973]

I have been in Thailand for 10 years and have 2 children, but have never challenged this.

But I am speaking on behalf of my brother. He had a baby girl in August 2007, but she always left him with the child, whilst she went back to work. My brother was running out of funds, so knowing a bit how child law in Thailand and the United Nations Convention on Childrens Rights. I drew him up a mutual residence and contact agreement in english, then translated it to Thai afterwards. He left for england in August 2008 with the child, and the immigration accepted the agreement at the airport. The child has dual nationality. The child has been living in the UK for the past year and a bit. He came back to Thailand a few days ago for a holiday, someone must of seen him on beach road with the child, because the next day he was ambushed by 4 thai men with guns and the mother and 2 other ladies.

We all know that the police will not get involved in these matters, unless there is an agreement between the parents or a court order.

So he produced all the documents including the signed agreement, and proof the child been in the UK for a year, and only came back to Thailand.

He went to the Tourist Police, because of the language barrier, and they said because of this agreement, they are prepared to help, so they have distributed photos to all checkpoints, found out were she was living, but moved out the day she took the baby. The tourist police say that she can be charged with abduction, due to the signed agreement. But don't know if they are just fobbing my brother off to abide for time.

Any advice, would be grateful.

Moderator, if the last sentence is not allowed, then please delete the last sentence.

[Mario2008]

Sorry to hear about this situation. I can't tell you how the courts will look at the contract. But the ambush was clearly illegal, especialy when guns are involved. He should make a complaint about that (if he didn't already) to have things on record. It might turn in to a custody battle and this will reflect badly on the mother.

If there are reasons why the mother would be a danger to the child the courst can issue an emergency order for the custody over the child.