Death Of A Child's Thai Mother....

[Paul888]

Does anybody have any experience of the legal process in Thailand to formally secure custody of the child when the Thai mother dies?

We were never married and were actually separated (but on good terms) for the past 3 years although I remained in Thailand (on multiple 'o' visas) to be with my child and saw her virtually every day and have a very strong relationship with her. She previously lived with her mother and grandmother who agrees to my face that the child is better off with me, but (without wishing to sound un-necessarily harsh) is also aware that no child = no child support.

Since the death of her mother my daughter has been living with my girlfriend and I and our young daughter and she is in a loving family environment, but everytime her grandmother takes her out, I am nervous that she will not bring her back, hence the desire to formalise this legally. Her Thai grandmother has all legal paperwork for the child, passport, Thai birth certificate etc, and I am worried that by asking for it, I will make her think I plan to take my daughter permanently out of Thailand, which at present I do not.

My daughter was actually born in the UK (and I have a full UK long birth certificate) but as her mother and I were not married she could not attain British Nationality or a UK passport at the time. I know the law on this has changed for births subsequent to 2006, but this was before.

I confirm that I am named as the father on the original UK birth certificate and the Thai one.

It may be that the best thing is to change her Nationality to British (which I would like to do anyway at some point). I understand that I could (at the discretion of the Home Office) go the route detailed below in this extract from the ukinthailand.fco.gov.uk/en/help-for-british-nationals/living-in-thailand/how-register-birth1/ webpage:

"British Fathers, who are not married, can now apply to register children who are born abroad prior to 1 July 2006, with the Home Office. Please note this is discretionary. Those applying should expect to receive a decision in approximately 4 months. The fee for this will be £460 payable in local currency plus a Consular forwarding fee of Baht 3,465. Please ask us for form MN1"

But I was hoping that somebody might know of a quicker (and maybe cheaper route) as my daughter already has a UK birth certificate, and I will need to return to UK in the early new year to renew my visa, and ideally would prefer not to have to leave her while I am doing this.

Any help or advice on either point would be gratefully received.

I have emailed the consular section in BKK, but the website says to allow 20 days for a reply, and its only half that so far...

[MJo]

For me it seems you already have custody as a parent of the child. Having your name in birth certificate supports that as well.

What i know for a fact that babies born in thailand you need to go personally to amphur to be registered as legal father if you are not married with the mother. Maybe you did the same when you registered here here in Thailand ? Or then it came direct from the UK certificate where you are the legal father.

Naturally you could confirm that from the amphur she's registered at.

So it's more a question of getting the paperwork to you from the grannie. Maybe you could discuss the issue with her and tell her your intentions not to take her out of Thailand. Also you could consider registering her into the same tabien bahn as you other child. That way you do not need to borrow tabien bahn or get copies from the granny every time you or she needs to do anything official.

[MaryWorth]

About the documents that are with the grandma, maybe you can make something up, a reason why you need the documents. Maybe you can say you want to take out a good health insurance for your child, and the insurance company requested the documents, something like that.

[MikeyIdea]

I think that it is too quick saying that you already are the father. Your name in the fathers line on the Thai birth certificate actually means nothing legally. If you didn't register the birth yourself (that's the name at the bottom of the certificate), wasn't married at birth or married within 310 days of the birth or got a certificate of fathership, then you have not legalised the child and you have no rights - as you are not yet recognised as the legal father.

Clearly, the mother had sole custody when she died. Do you know if anything formal was done at that point? Was a guardian appointed? My guess is that Granny gets it but if it is automatic or not I don't know. It could be as easy as a signature that Granny did at the Amphor (without even understanding the importance of it).

This is too deep for me, you need to consult a lawyer but I don't think anything fundamental changes if the mother dies. Thai law still very much so looks at the wellbeing of the child.

Read carefully pages 16 to 17 in this document http://www.thailawonline.com/images/thaici...l%20code%20.pdf

Going the UK way sounds very complicated. I understand it as this; Regardless of if you use the UK way or not, you need to get your child legitimised in Thailand and that means juvenile court OR child is some 7 years old and child and legally appointed guardian agreeing and signing at Amphor. Maybe there is a way of getting a child born to a Thai mother abroad legitimised without going to juvenile court but I don't see that the legally appointed guardian suddenly doesn't have to sign. Same problem, isn't it? Or dead-end if no legal guardian has been appointed, then you have to get that sorted out first anyway

I travelled with my daughter (Thai and Swedish passport both obtained while in Thailand) and I almost couldn't get my daughter out, I had to show the birth certificate they said. I managed in the end by saying that the mother had already gone through in the Thai lane (which was true). I don't see that you would be able to get your child out of Thailand also if you get a British passport, not if it doesn't have an entry stamp or you have the Thai birth certificate. They never told me if it was the original or a copy they wanted to see but I assume a copy.

All that I can think of that you need initially to go the Thai way is a copy of the birth certificate to give to the lawyer. He should be able to do the rest based on just that. He can do it without that too even but more difficult of course. It should also be possible for him (or you even) to find out the childs current status at the Amphor, has a new custodian been finalised?

The lawyer I asked told me a long time ago to keep all bills, school fees, hospital bills etc. so that I can prove that I have cared for the child. Start gather evidence if you haven't done so - Important! It should not be difficult to get your child legitimised if you have that. It can't be done before you leave though, a Thai I know started the process of getting his child legitimised last month and he is due in court 8 January 2010.

Mary's advice is good, Grandma should not have any problems giving you a copy of the birth certificate, I doubt she would (ever) give you the original

Good Luck Paul, keep us posted

Michael

Edited October 27, 2009 by MikeyIdea

[Mario2008]

I would enquire first at the amphur to see who holds custody over the child and check if you already have it or not.

You state that the child was born in the UK, so the question is probably did you legitimise the child under British law? If you did, you would hold custody over the child and now the mother is dead sole custody, as the custody was settled in the UK. (But do ask a lawyer if the Thai court recognise this fact).

In your case it is helpful that are on the Thai birthcertificate. Both parents should sign the paperwork at the embassy in London, so if you did that would be further proof that you are the father a the mother did recognise that fact.

Under Thai law you can ask to be recognised as the father by petitioning the court and if granted you can ask for custody over the child.

Changing her nationality to Britisch is not an option, you can't change her nationality. But you can give her also the British nationality, if she doens't have it yet.

[MJo]

I don't think you need lawyer at this point.

Check first from amphur who has custody, sure your GF can help you with it. If not you then check from UK are you registered there as legal father and then take it from there with good lawyer to set it right.

Good luck.

[Paul888]

Many thanks for the replies so far guys.

There have been a few points raised already that I hadn't actually considered, and so I very much appreciate the input.

[bkk_mike]

The registration you mentioned at the embassy is simply a way to get your child a UK birth certificate. But since she was born in the UK and already has a UK birth certificate, then there's no point. (and I don't think they'd let you anyway...)

Surely you just ask at the consular section about the possibility of applying for a UK passport for the child. Of course, if you'd ever married this would be simple, but as you didn't, the fact that the mother is dead, which would mean, as far as the UK is concerned, you're the sole parent, should mean they're more sympathetic. They might want a DNA test? (the whole inheritance of nationality only from the mother in the absence of marriage is purely down to UK law being scientifically backward.)

[Paul888]

The registration you mentioned at the embassy is simply a way to get your child a UK birth certificate. But since she was born in the UK and already has a UK birth certificate, then there's no point. (and I don't think they'd let you anyway...)

Surely you just ask at the consular section about the possibility of applying for a UK passport for the child. Of course, if you'd ever married this would be simple, but as you didn't, the fact that the mother is dead, which would mean, as far as the UK is concerned, you're the sole parent, should mean they're more sympathetic. They might want a DNA test? (the whole inheritance of nationality only from the mother in the absence of marriage is purely down to UK law being scientifically backward.)

Well, as stated above, this is actually no longer the case, as children born to a British father after 1st July 2006 can obtain British nationality from their fathers, without the requirement for the parents to be married.

However, my daughter was born prior to that date, but I am pleased to say that having given up waiting for an email reply I called the Consulate department in Bangkok by telephone today and was pleasantly surprised by how quickly I got my answer.

After just 5 minutes of holding, I was put through to a real person to whom I explained my situation, and they told me that my daughter would now be able to obtain a British passport and I just needed to submit the C2 form, the appropriate birth certificates and her mother's death certificate, which I do not yet have but should be able to get from the grandmother, now more than 30 days have passed.

Knowing that I will hopefully soon be able to give her British Nationality is a great comfort I can tell you.

I will still be pursuing formalisation of my custody under Thai Law, (waiting for the death certificate mainly) and if I learn anything en route that might be of help to others in the same situation, I will update here.

I cannot describe how happy I am to have her back with me full time. You don;t realise how much you miss whe you only see them for a few hours a day! Thanks again to everybody who took the time to contribute.

[Mario2008]

Good to hear everything is going well.

[richm7]

Hold on......the child was born in the U.K. and you were registered as the father. Therefore the child is British. REAL British, not the usual you get when your child is born overseas which is British with limitations, primarily (unless etc. etc.) the inability to pass that on to their own children. All those pre 2006 rules only applied to overseas births (to a foreign mother), NOT U.K. births. I think.

Anyway, happy the embassy has squared you away. Having said that, if you want to hold on to your daughter I'd advise getting her out of Thailand pdq. If Grandma goes to a local judge, what do you guess the outcome will be?

[Paul888]

Hold on......the child was born in the U.K. and you were registered as the father. Therefore the child is British. REAL British, not the usual you get when your child is born overseas which is British with limitations, primarily (unless etc. etc.) the inability to pass that on to their own children. All those pre 2006 rules only applied to overseas births (to a foreign mother), NOT U.K. births. I think.

Anyway, happy the embassy has squared you away. Having said that, if you want to hold on to your daughter I'd advise getting her out of Thailand pdq. If Grandma goes to a local judge, what do you guess the outcome will be?

I guess (and believe) that the Thai Courts will be fair and objective and will consider the best interests of the child.

Being born in the UK prior to July 2006 did not carry any entitlement to British Nationality where the parents were not married. We did explore that. She was actually originally going to be born in Gibraltar where I was living at the time, but would have been stuck there "stateless" and illegal and unable to leave, as she was not entitled to be British and she couldn't obtain Thai paperwork as there is no Thai Consul in Gibraltar !

[MikeyIdea]

Paul, everything I have heard about custody cases in Thailand point at you will be treated very fairly indeed in court and the childs best is very much so in the centre of things. I get the impression that some posts in this forum are too conservative rather than over-optimistic.

If you can prove that the child lived with her mother (and as it happens, her grand mother too – not really that important if the mother was there all the time) and after the mothers death lived with you and – important – you can prove that you have been actively involved in the childs upbringing and financially cared for the child all the time, then you will get sole custody.

If your lawyer says anything else than that this case should give you sole custody fairly easily, and that you shouldn’t have to pay any money (at all) to the grand mother, then take another lawyers opinion. You can pay some if you want, and you should IMO, but that’s a different matter.

Please update what happens (automatically) with custody if mother dies if you find out

[bkk_mike]

Glad to hear it sounds like it's all working out.

[torrenova]

I would enquire first at the amphur to see who holds custody over the child and check if you already have it or not.

You state that the child was born in the UK, so the question is probably did you legitimise the child under British law? If you did, you would hold custody over the child and now the mother is dead sole custody, as the custody was settled in the UK. (But do ask a lawyer if the Thai court recognise this fact).

In your case it is helpful that are on the Thai birthcertificate. Both parents should sign the paperwork at the embassy in London, so if you did that would be further proof that you are the father a the mother did recognise that fact.

Under Thai law you can ask to be recognised as the father by petitioning the court and if granted you can ask for custody over the child.

Changing her nationality to Britisch is not an option, you can't change her nationality. But you can give her also the British nationality, if she doens't have it yet.

I can save him the trouble and cost. According to Tilleke & Gibbins in a report commissioned by my lawyers last month, they confirm that "Thailand is not a party to any conventions on recognition of foreign judgements and the Thai Courts do not recognize foreign courts’ orders or judgements.". In addition, unless the father is legitimised, he has no rights, including no rights to even go to court to gain custody. He would have to apply for legitimisation first and once legitimised, then apply to the court for custody.

This logic would lead to an automatic legal challenge in the UK courts and I believe it would win, as would any challenge to the legitimisation issue, but unless the OP wants to rewrite Thai case law, his best bet is to become legitimised.

As a result of the changes in the immigration rules in October 2008, a father under the age of 50 years old can now receive annual extensions of a non immigrant visa for the purposes of supporting his child. He must have 400k in the bank (Pattaya want 500k). To do this, you'll need to be legitimised and it is a way for granny to ease up on the documents.

Copies of birth certificates are easily obtained for about Bt20 each from the city office where the baby was registered. Take your passport.

[Mario2008]

I would enquire first at the amphur to see who holds custody over the child and check if you already have it or not.

You state that the child was born in the UK, so the question is probably did you legitimise the child under British law? If you did, you would hold custody over the child and now the mother is dead sole custody, as the custody was settled in the UK. (But do ask a lawyer if the Thai court recognise this fact).

In your case it is helpful that are on the Thai birthcertificate. Both parents should sign the paperwork at the embassy in London, so if you did that would be further proof that you are the father a the mother did recognise that fact.

Under Thai law you can ask to be recognised as the father by petitioning the court and if granted you can ask for custody over the child.

Changing her nationality to Britisch is not an option, you can't change her nationality. But you can give her also the British nationality, if she doens't have it yet.

I can save him the trouble and cost. According to Tilleke & Gibbins in a report commissioned by my lawyers last month, they confirm that "Thailand is not a party to any conventions on recognition of foreign judgements and the Thai Courts do not recognize foreign courts' orders or judgements.". In addition, unless the father is legitimised, he has no rights, including no rights to even go to court to gain custody. He would have to apply for legitimisation first and once legitimised, then apply to the court for custody.

This logic would lead to an automatic legal challenge in the UK courts and I believe it would win, as would any challenge to the legitimisation issue, but unless the OP wants to rewrite Thai case law, his best bet is to become legitimised.

The non-recognition of a foreign court order is not that strict. Keep in mind that Thailand recognizes foreign marriage, including one between a Thai and a non-Thai abroad. They also recognize the resulting custody issues of the marriage, otherwise you would never be considered the father of a child born abroad.

[BigBadGeordie]

Been a member of the forum for a long time but had nothing to say.... only look for advice...... but now I can speak from experience

My daughter was 8 months old when her mother died, she is now 17and I have been her sole Guardian since then, and after school in Udon and BKK she is now at boarding school in the UK (I am still resident in Thailand). All I will advise is take it slow, this is Thailand after allL. Do not waste your money or time on lawyers; seek advice (as you are doing from the ex-pat community). I did not have the advantage of the web, but you do and I am pleased to see you are using it. Best of luck and I hope all turns out well. Please PM me if you need anything further. Below is an extract from Thai Law relating to the issue?

CHILD CUSTODY: Under Thai law, the question of child custody is addressed in Book Five of the Thai Civil and Commercial Code under the general headings Termination of Marriage and Rights and Duties of Parent and Child . The relevant portions of the law follow in full:

Section 1566.

A child is subject to parental power as long as he is not sui juris. The parental power is exercised by the father or the mother in any of the following cases:

(1) The father or mother is dead;

(2) It is uncertain whether the father or the mother is living or dead;

(3) The father or the mother has been adjudged incompetent or quasi-incompetent;

(4) The father or the mother is placed in a hospital by reason of mental infirmity;

(5) The parental power has been granted to the father or the mother by an order of the court.

The parental power is exercised by the mother, when the child was born out of wedlock and has not yet been legitimated by the father according to Section 1547.

Section 1567.

A person exercising parental power has the right:

(1) to determine the child's place of residence

(2) to punish the child in a reasonable manner for disciplinary purposes;

(3) to require the child to do such work as may be reasonable to his ability and condition in life,

(4) to demand the return of the child from any person who unlawfully detains him.

As a matter of law, foreigners are treated on an equal basis with Thai citizens in matters relating to child custody. Thai law makes no distinction between the rights of the father and mother on issues of child custody.

[MikeyIdea]

I'd like to make a correction of a post I made earlier in this thread. Sorry for the mess-up

Section1547. A child born of the parents who are not married to each other is legitimate by the subsequent marriage of the parents, or by the registration made on application by the father, or by a judgment of the Court.

Child is always legitimized by subsequent marriage, there is no time limit

Question: I would like to confirm if registering a marriage at a later stage also gives 50/50 shared custody automatically. That is also very important of course

Anyone knows?

Edited November 23, 2009 by MikeyIdea

[Mario2008]

I'd like to make a correction of a post I made earlier in this thread. Sorry for the mess-up

Section1547. A child born of the parents who are not married to each other is legitimate by the subsequent marriage of the parents, or by the registration made on application by the father, or by a judgment of the Court.

Child is always legitimized by subsequent marriage, there is no time limit

Question: I would like to confirm if registering a marriage at a later stage also gives 50/50 shared custody automatically. That is also very important of course

Anyone knows?

I can't answer that question for sure. But it would be logical that in that case both parents would have custody over the child. Getting married to the father and only the mother still having custody doesn't make much sense.

I know Thailawonline is busy working on an article about custody and I hope they will answer this question too.

[DennisYale]

Hi,

It is too sad to hear your mother sudden demise.May GOD rest her soul in peace.I can only share my deep condolence with you to console your grieved heart.I am a new comer in this forum.I shall pray for your mother.

Thanks...

Edited November 25, 2009 by DennisYale