Is Sole Legal Custody Of My Son The Best Option?

[simon43]

Firstly, this is not a post about gaining legal custody because my partner is a drunken, uncaring parent! It is more complex than that.

The details have been covered in previous posts, but I can restate the salient points for this specific post.

My son, who is now 3 years old, was born whilst I was legally married to his Thai mother. She has severe Bipolar mental illness and was/is unable to care for him, (as is the case with her 2 children from other relationships). Since I was working, he was put in the care of an aunt and uncle in Bangkok who were unable to have their own children for medical reasons. The uncle has a good job and my son has been very well looked after. I visit him most weekends and pay a monthly allowance for his care, plus all schooling, medical bills etc. Their care for him is without fault.

When I divorced his mother last year the legal custody of my son was shared jointly between us and no mention was made on the divorce agreement about the fact that he does not live with either of us.

My ex's mental state can vary from good to terrible, depending on which way the wind blows. (She takes no medication for her illness). Right now, she is busy looking after her hotel in Phuket, so her state seems good, (Being busy does not give her time to daydream etc).

But that situation might change, and there have been several previous instances where she has been 'unstable' and tried to physically take our son from the aunt/uncle and back to Phuket. Luckily, they have refused and will never allow her to take him unless accompanied by another competent person.

As he grows older, I have several concerns about his welfare and future education. His mother and family members want him to attend the most expensive school, regardless of the school's reputation etc. As I am the one who pays his school fees, (and my funds are not endless), I would like to be the person who decides upon his schooling and other matters, in consultation with his mother, aunt and uncle. But I feel that my decision should be final in these matters.

If I have legal custody of him, then I understand, (please correct me if I am mistaken), that I can make these decisions and back them up with my legal position as 'custodian', (if it should come to that).

I am also concerned that, since my son has spent 33 months of his 36 month life living with his aunt and uncle, they could make a legal claim to be awarded custody of him.

I absolutely do not want to deprive my ex of seeing her son, and I have no intention whatsoever of changing his living arrangements, or returning to the UK with him. I want legal custody for my peace of mind.

But I can imagine that If I tell my ex that I want sole legal custody of him, then alarm bells will start ringing in her head and she will start imagining worst case scenarios.

Can anyone suggest a solution that will put me in a better legal position viz-a-viz my son? Everything is fine just now, but I feel that it is would be prudent to consider my circumstances and options.

Thanks

Simon

I forgot to mention that I no longer live with my ex. I am working in Jomtien, she is working in Phuket and our son is playing in BKK!

I should also add that I am named as his father on his birth certificate and his surname is my surname, not that of his mother.

Addendum - I note that in the US, UK etc, there is the concept of legal custody and of physical custody. I am only concerned about sole legal custody, where I can make decisions about my son's education etc. I do not want sole physical custody. Does Thai law also have these 2 types of custody?

Edited August 6, 2009 by simon43

[JacknDanny]

Firstly, this is not a post about gaining legal custody because my partner is a drunken, uncaring parent! It is more complex than that.

The details have been covered in previous posts, but I can restate the salient points for this specific post.

My son, who is now 3 years old, was born whilst I was legally married to his Thai mother. She has severe Bipolar mental illness and was/is unable to care for him, (as is the case with her 2 children from other relationships). Since I was working, he was put in the care of an aunt and uncle in Bangkok who were unable to have their own children for medical reasons. The uncle has a good job and my son has been very well looked after. I visit him most weekends and pay a monthly allowance for his care, plus all schooling, medical bills etc. Their care for him is without fault.

When I divorced his mother last year the legal custody of my son was shared jointly between us and no mention was made on the divorce agreement about the fact that he does not live with either of us.

My ex's mental state can vary from good to terrible, depending on which way the wind blows. (She takes no medication for her illness). Right now, she is busy looking after her hotel in Phuket, so her state seems good, (Being busy does not give her time to daydream etc).

But that situation might change, and there have been several previous instances where she has been 'unstable' and tried to physically take our son from the aunt/uncle and back to Phuket. Luckily, they have refused and will never allow her to take him unless accompanied by another competent person.

As he grows older, I have several concerns about his welfare and future education. His mother and family members want him to attend the most expensive school, regardless of the school's reputation etc. As I am the one who pays his school fees, (and my funds are not endless), I would like to be the person who decides upon his schooling and other matters, in consultation with his mother, aunt and uncle. But I feel that my decision should be final in these matters.

If I have legal custody of him, then I understand, (please correct me if I am mistaken), that I can make these decisions and back them up with my legal position as 'custodian', (if it should come to that).

I am also concerned that, since my son has spent 33 months of his 36 month life living with his aunt and uncle, they could make a legal claim to be awarded custody of him.

I absolutely do not want to deprive my ex of seeing her son, and I have no intention whatsoever of changing his living arrangements, or returning to the UK with him. I want legal custody for my peace of mind.

But I can imagine that If I tell my ex that I want sole legal custody of him, then alarm bells will start ringing in her head and she will start imagining worst case scenarios.

Can anyone suggest a solution that will put me in a better legal position viz-a-viz my son? Everything is fine just now, but I feel that it is would be prudent to consider my circumstances and options.

Thanks

Simon

I forgot to mention that I no longer live with my ex. I am working in Jomtien, she is working in Phuket and our son is playing in BKK!

I should also add that I am named as his father on his birth certificate and his surname is my surname, not that of his mother.

Addendum - I note that in the US, UK etc, there is the concept of legal custody and of physical custody. I am only concerned about sole legal custody, where I can make decisions about my son's education etc. I do not want sole physical custody. Does Thai law also have these 2 types of custody?

Sorry to sound blunt, but why on earth would you not want 'physical custody'

Sounds to me a selfish and self centred way of looking at it.

You need to be nurturing your son with love , not being a part time father. Its called having your cake and eating it. Take the responsibility. You have a far greater chance of getting sole legal custody if your son is living with you.

I dont care how well your son is being taken care of, you as the father can give him far more emotionally than an uncle or aunty.

Face upto your responsibilities and stop being so selfish Simon.

[simon43]

Well , I suppose the adage is 'don't post if you cannot listen to unjustified criticism'

JacknDanny, I would love to have my son living with me. But realistically, this is very difficult whilst he is at such a young age. I am out at work all day, (because I have to work to pay the bills etc etc) and I would not like some stranger to look after him. He is currently doing well at his junior school in BKK, although it is dam_n expensive!

He has been cared for in very difficult circumstances by this good aunt and uncle. Ideally, when he is slightly older, that would be the best time to move him in with me. But you can bet his mother will fight this, as will his aunt and uncle, (and the rest of the family).

Legally, right now, I do not have the right to just take my son to live with me, no matter how much I would want this.

I'm not asking about your view on the morals of my situation. I need some advice about whether and how I should go for sole legal custody, so that I can then proceed to the next stage of relocating my son at a time that is best for him.

Simon

[billd766]

Sorry to sound blunt, but why on earth would you not want 'physical custody'

Sounds to me a selfish and self centred way of looking at it.

You need to be nurturing your son with love , not being a part time father. Its called having your cake and eating it. Take the responsibility. You have a far greater chance of getting sole legal custody if your son is living with you.

I dont care how well your son is being taken care of, you as the father can give him far more emotionally than an uncle or aunty.

Face upto your responsibilities and stop being so selfish Simon.

I can see where Simon is and I have also read most of his earlier posts about his wife and their problems.

To support his son at present Simon is working hard and it is probably the only way he can do it.

If he brought his son to live with him in Jomtien who would lioke after the child during Simon's working hours?

A nanny, maid, friend, friend of a friend?

At present the child is living a stable loving and caring family whos is actually part of his own family and his father visits as often as possible and provides the means to support his son to the best of his ability.

The alternative is of course for Simon to stop working and spend all his time with his son.

This will probably work for a period of time until Simons next visa or before when Simon has no money to pay the bills.

Where does that leave his son?

As far as I can see in a much worse position than he is now.

Many Thai families live apart from their children and most do so to improve their childrens future at the expense of their own.

I spent the last year away from my son except for a 3 week break at the end of the year and I sure as hel_l didn't do it for me. I used to work offshore but fortunately for me my wife was at home looking after our son so it was not so hard for me though I missed my son very much.

Trying to bring up a 3 year old child is hard enough for 2 parents, harder still for 1 parent and harder again if you are the 1 parent and have to earn enough money to look after you and your child.

I am very impressed by Simon and what he has done so far as he has the interests of his son as his first priority whilst not blocking his wife from access.

It seems from his post that his ex-wife and her family want to spend the most moneywithout actually providing it themselves.

My advice to Simon would be to get a good Thai (or farang) lawyer specialising in child and family law to make a good case and then go back to the courts asking for Simon to be made the legal guardian of his son working if necessary with the family courts to secure his son's future.

Good for you Simon.

You have my wholehearted support.

[simon43]

Thanks for your good advice Billd766! This is an emotional issue, but it is far better to think with your head and not your heart. Moving to Jomiten has at least made it easier for me to visit my son most weekends.

Of course the best approach is to consult a specialist lawyer. The words 'legal custody' can sound rather frightening to someone who doesn't understand the term. In my interpretation, it means being able to ensure that my son gets the most suitable education and opportunities that are available within my means, which includes financial means.

My ex is not a 'bad' mother through alcoholism or drug-taking or promiscuity etc. She is an 'unreliable' mother because her medical condition makes her like that. Whilst those conditions continue, it is prudent for me to be legally responsible for my son, whilst allowing my ex full access/visitation rights at times when her mental state allows for that.

I would hope that as my son grows up, he will be more able to spend time with me and away from his aunt/uncle. But at only 3 years old, I think the best option is for me to get sole legal custody and keep working for a few more years so that I am better able to finance his future, expensive education etc.

Simon

[Mario2008]

Under Thai law you have joined costudy with her, unless you agreed to give the mother sole costudy when you divorced her. Legaly you have every right to take the child and have him stay with you. The only person who can take him away from you is the mother, but she has the same rights as you in this regard.

Look here on page 19, sections 1566 and 1567

http://www.thailawonline.com/images/thaici...l%20code%20.pdf

[Brigante7]

Firstly, this is not a post about gaining legal custody because my partner is a drunken, uncaring parent! It is more complex than that.

The details have been covered in previous posts, but I can restate the salient points for this specific post.

My son, who is now 3 years old, was born whilst I was legally married to his Thai mother. She has severe Bipolar mental illness and was/is unable to care for him, (as is the case with her 2 children from other relationships). Since I was working, he was put in the care of an aunt and uncle in Bangkok who were unable to have their own children for medical reasons. The uncle has a good job and my son has been very well looked after. I visit him most weekends and pay a monthly allowance for his care, plus all schooling, medical bills etc. Their care for him is without fault.

When I divorced his mother last year the legal custody of my son was shared jointly between us and no mention was made on the divorce agreement about the fact that he does not live with either of us.

My ex's mental state can vary from good to terrible, depending on which way the wind blows. (She takes no medication for her illness). Right now, she is busy looking after her hotel in Phuket, so her state seems good, (Being busy does not give her time to daydream etc).

But that situation might change, and there have been several previous instances where she has been 'unstable' and tried to physically take our son from the aunt/uncle and back to Phuket. Luckily, they have refused and will never allow her to take him unless accompanied by another competent person.

As he grows older, I have several concerns about his welfare and future education. His mother and family members want him to attend the most expensive school, regardless of the school's reputation etc. As I am the one who pays his school fees, (and my funds are not endless), I would like to be the person who decides upon his schooling and other matters, in consultation with his mother, aunt and uncle. But I feel that my decision should be final in these matters.

If I have legal custody of him, then I understand, (please correct me if I am mistaken), that I can make these decisions and back them up with my legal position as 'custodian', (if it should come to that).

I am also concerned that, since my son has spent 33 months of his 36 month life living with his aunt and uncle, they could make a legal claim to be awarded custody of him.

I absolutely do not want to deprive my ex of seeing her son, and I have no intention whatsoever of changing his living arrangements, or returning to the UK with him. I want legal custody for my peace of mind.

But I can imagine that If I tell my ex that I want sole legal custody of him, then alarm bells will start ringing in her head and she will start imagining worst case scenarios.

Can anyone suggest a solution that will put me in a better legal position viz-a-viz my son? Everything is fine just now, but I feel that it is would be prudent to consider my circumstances and options.

Thanks

Simon

I forgot to mention that I no longer live with my ex. I am working in Jomtien, she is working in Phuket and our son is playing in BKK!

I should also add that I am named as his father on his birth certificate and his surname is my surname, not that of his mother.

Addendum - I note that in the US, UK etc, there is the concept of legal custody and of physical custody. I am only concerned about sole legal custody, where I can make decisions about my son's education etc. I do not want sole physical custody. Does Thai law also have these 2 types of custody?

Sometimes it's better to be on the outside looking, you can see things clearer, just from what you've told us in this post, of course your wife and her family want him to go to the best school regardlest of cost, your son is their meal ticket when they are old. Do you really think that when he is older his mind won't have been conditioned to look to you as a dad who only visits, but it was your wife's family who raised him, why would he want to leave them and live with you? Sorry to be brutaly honest but that's the way I see it from your post and I hope I'm wrong, both for you and your son.

I've read many times that the first 3 years of a childs life are the most important and can shape there whole way of life. I understand about you having to work to provide for your son and so it seems like a catch 22, I hope everything works out for you.

Brigante7.

[simon43]

Brigante7, your comments are probably correct. This is why I want to try to influence my son's thinking at this early stage, so that his future is not just about working to support his family elders, (although I do not deny that such actions are praiseworthy).

He is able to obtain a British passport/nationaly as his birthright, (we were legally married when he was born), and I would hope that in his late teens he can go and study in the UK. (His mother agrees with this idea). Exposure to both Thai and western culture and work/study environment can only be of benefit to him.

But hey - he is only 3 years old now! I need to work slowly at this to achieve what I want .

'Slowly slowly catchee monkey!

Simon

[geriatrickid]

Although the issue here is the education, I would look farther down the road. Correct me if I have this wrong, but being the custodial parent also allows one to make certain key decisions as they relate to health. Sorry to be negative, but what happens if the son becomes seriously ill or needs medical treatment? Not having custody means that you would need the mother's permission for any important decisions. I think it's obvious you are the best suited parent to make those decisions.

Whatever you do, you will need the aunt and uncle on your side if you go for custody. If they vouch for you at a hearing it will make it easier. I'd leave the school issue quiet until you gain custody.

Sort of funny you got slammed for not taking your kid to Jomtien. No offense to its residents of Jomtien but I don't think it's the best place for a young boy to grow up.

[ivowatson]

I need some advice about whether and how I should go for sole legal custody, so that I can then proceed to the next stage of relocating my son at a time that is best for him.

Simon

Best for you.

Contact a lawyer! I think you know this already.

Getting sole custody won't be easy. Some would argue you gave that up when 'abandoning' your son. There are lots of single parents who work full time jobs. Bringing the kids to school or preschool at 8 and pick them up at 5. The first 3 years are indeed the most important in a child's development. It saddens me a lot when parents are separated from their children because of, yes, because of what? . Surely there must have been a better solution. Your ex ownes and runs a hotel but won't pay for anything?

Wish you goodluck. You're gonna need it.

[simon43]

Ivowatson - There was no abandonment of my son. I was living with and married to the child's mother when our son was born, but her mental illness meant that it was neccessary to move the child to a place of safety. I only managed to obtain new employment and move away from my ex in April of this year. She had another child (fathered by a Thai gik) towards the end of our marriage, and that baby was also moved to a safer place after she began handling the baby very roughly. She owns the hotel and makes a contribution to our son's upkeep when she has the money.

Now that I have an income and employment again, I want to improve my legal position viz-a-viz my son. To move my son to live with me sounds - at face value - the ideal situation. But it is far more complex than that. If my ex knows where I live, then she will visit and attempt to remove my son, or will remove him from the playschool etc. Legality of her actions is totally irrelevant here. When she is not lucid, she will do whatever she wants. That is why I keep my home address and place of work address a secret from her

Simon

[MikeyIdea]

You have shared custody already, getting sole custody is difficult. If she contests, which she will, then you have to prove that the mother is unsuitable. Not easy.

First thing to start with is to keep every single receipt you can so that you can prove that you are the one paying for the child. The mother will not keep the receipts so regardless if she pays when she can or not, it's an advantage for you if this ever goes to court. Pay the childs school yourself always and make sure that you keep the bills. If you have paid for school but have no bill to prove it any longer, then go to the school and get new ones. If they refuse, then hinting (in the nicest way possible) that there will be no money for the little student unless you pay should do the trick. Keep a diary of every single time you meet the child, ask your aunt and uncle and keep info about how often the mother sees the child. I know your feeling, the uncertainty is the worst thing. If nothing else, this evidence should ensure that you will not lose custody in a court battle, or the right to visit your child up to 50% of the time.

If the child has spent 33 of the last 36 months with their auntie, you have a big problem in that the child will be more attached to them than to you. You need to visit your child often, take him to Dream World, take him to Phala Beach and stay the night, have fun with him

"She has severe Bipolar mental illness and was/is unable to care for him, (as is the case with her 2 children from other relationships)." - Does the other kids have a father who wants custody too? Or can you get help with witnesses from that side?

"and that baby was also moved to a safer place after she began handling the baby very roughly" Can you get any evidence of that? Would anyone accept to be a witness in court?

We hear many stories about how custody cases should be run and it is difficult to know which way that is the correct one. Since Thailand does not practice case law, there is no correct way I suppose. One thing I do believe in though, a lawyer needs to be pretty tough. If the mother got a child with another man while she legally was married to you, then that should be brought up in court so that a proper judgement of the mothers morale can be done. Put forward in a way so that it is clear that you think only of the future wellbeing of the child of course. If the mother has a history of violence, then it is important to get that out (some evidence or witness needed), lawyers talk about "tuu waa benn khon antarai" in custody cases, anyone who can prove that has a pretty strong case

Do you have copies of documentation needed to prove that you have shared custody? I keep the original birth certificate of my daughter, I know that mummy can get a new one but it makes me feel better

Our old friend bipolar disorder, I feel with you

Good Luck

[fletchsmile]

I find it a little difficult to put myself in your shoes as you've already made choices I wouldn't - not to say they are wrong or right just I would have chosen differently. Unfortunately also the longer you leave the status quo, the harder it will be to change and the bigger the question comes of whether you should change it let alone can you.

For me I would first apply for sole legal custody.

I would then find a way so that my son could live with me. Even if I was a single parent. I know foreign guys that do that here. Not easy but that's what they do.

The aunt and uncle have also been very good in this situation. They will no doubt be becoming more attached to your son each day. You need to be fair to them. It looks like in everyone's interest they maintain some involvement. Hence I would explain to them why you want legal custody. I would also need to make clear that I wish them to maintain a close involvement with my son as they have been great. Wrenching the child away from them at any point may be difficult, and I sort of feel the longer you leave it the harder it will be. The timing and way you put your plans to them is also key.

For me the end game would be: Me sole custody. Son living with me. Uncle and aunt still involved as much as possible and very welcome, but clear it's my son and living with with me. Ex-wife allowed to visit when she wants/ when practical as long as she doesn't start causing problems. Starting with the end in mind as they say, that's where I'd aim at: carefully and with tact.

[torrenova]

Some good points raised, not least the issue of the meal ticket and pension fund !

The issue will depend on a number of factors, not least the father's ability to make a strong case that he can take care of his child and provide for him. I find a problem in doing that because he was in business but has somehow lost that to his ex wife, despite asking for investors to put up funds to buy 25% or 50% of it. How stable the job in Jomtien is we do not know. The OP states that he has a problem funding the child's education costs at 3 years old. Educational costs rise significantly over time and with the child's age. One might make the argument that the father cannot afford to take care of the child, that his employment and therefore his income and immigration status are not guaranteed and his desire to gain control over his child is due to some ulterior motive.

A senior Thai Supreme Court judge in the Juvenile and Family Section makes the following points about the happiness and welfare of the child as being paramount and based on the following considerations:

1) Young children need mothers;

2) Continuity of care;

3) Keep children together;

4) Wishes and feeling of the child;

5) Capability to provide the child with proper education, religious belief, morals and intellectual development both at home and in school;

6) Capability to provide accommodation and medical care for the child;

7) Duration of time the child has been in the existing environment; and

8) Love, affection and emotionality between the child and the parent.

Given the above, it might be difficult to use section 1582 of the Thai Civil and Commercial Code, which, in part, states:

“when the person exercising parental power abuses his or her parental power as regards the minor’s person or is guilty of gross misconduct, the Court may, of its own motion or on the application of the relative of the child or of the Public Prosecutor, order the deprivation of the parental power either partly or wholly.

If the person exercising parental power is bankrupt or is likely to endanger the minor’s property by mismanagement, the Court may, upon the same proceedings as mentioned in paragraph one, order the deprivation of the right of management.”

I do not know if there is some medical disqualification but that would seem to be the one to go for. It should be noted that the court can order less than 100% loss of rights but unless there is evidence of her doing something very wrong and probably illegal, such as taking drugs, I don't see how the desired result can be achieved.

Personally, I don't think the OP has much chance of getting sole custody. Indeed, his situation could be thought of as worse off and less stable than that of his ex wife and it is her family and not his that are taking care of the child. When his wife was sick, the OP did not seek to take sole care of his child and now appears only to want to do so because the financial demands made upon him by those taking care of his son are too great for his purse. I do not think that argument will hold much water in a Thai court and it may well be in the child's best interest to remain in the care of his carers, who could be given custody in certain circumstances.

I think the OP needs to get more input into his child's life and stabilise his own position. After some time, or even now if his situation allows it, he should think about having his child stay with him. The problem comes from the stipend the Thai couple receive for looking after the child as he would presumably need to redirect that money to those who assisted the care of his child in Pattaya. If the situation is so dire financially, he should consider whether he will ever be able to provide for the child in a financial sense and if he cannot, then just how much input he will be allowed by the Thais now controlling his son's development is likely to diminish.

I don't see a happy ending to this one. I think the OP needs to use his wife's medical condition against her and take control of the child. Do it all legal first and if she abducts him, then he has the law to back him up.