UK Settlement Visa - Child Custody Question

[Ch23]

Hello all,

I thought I knew the answer to this but the more I talk/speak to people the more I doubt myself..

I am applying for a settlement visa for my wife and her 9 yr old daughter.

My wife was never married or in a relationship with the biological father at birth. Her daughter has my wifes last name but the father is on the birth certificate.

Around 3 years ago he got a court order so that they share custody of the child. He did this just to annoy my wife as he has no involvement in her upbringing / life. The total amount of time he spent with his daughter last year was approx one day.. Around 20 mins in the last three months.

My question is:

According to the UKBA website here: (i've copied the section out below)

SET7.8 What is sole responsibility?

A sponsoring parent (see SET7.2) must be able to show that he/she has been solely responsible for exercising parental care over the child for a substantial period.

If the sponsoring parent and child are separated, the child will normally be expected to have been in the care of the sponsoring parent's relatives rather than the relatives of the other parent. An application should normally be refused if the child has been in the care of the other parent's relatives and the other parent lives nearby and takes an active interest in the child's welfare.

The following factors should be considered in assessing sole responsibility:

• Are the parents married / in a civil partnership?
• If the parents' marriage / civil partnership is dissolved, which parent was awarded legal custody, which includes assumption of responsibility for the child?
• Where there is a custody order the ECO should take care to ensure that the issue of a settlement entry clearance to the child will not contravene the terms of the custody order. See list for countries whose custody orders can be recognised as valid in UK (copy can be downloaded under 'Related documents' on the right side of this page).
• Does the marriage / civil partnership subsist, but the parents do not live together?
• If the sponsoring parent migrated to the UK, how long has the sponsoring parent been separated from the child?
• If the sponsoring parent migrated to the UK, what were the arrangements for the care of the child before and after the sponsoring parent migrated?
• If the sponsoring parent migrated to the UK, what has been / what is the sponsoring parent's relationship with the child?
• Has the sponsoring parent consistently supported the child, either by:
  direct personal care; or by regular and substantial financial remittances?
• By whom, and in what proportions, is the cost of the child's maintenance borne?
• Who takes the important decisions about the child's upbringing, for example where the child lives, the choice of school, religious practice etc?

From the section I have highlighted in Bold it says 'custody orders are only recognised from countries on a list'. Thailand is not on this list therefore the custody order my daughters biological father received is not valid in the eyes of UK and by default her mother has sole custody.

If this is the case? All I have to do is to prove that my wife has sole responsibility. Which I can do.

On a separate note my wife told the father that they are planning to move to the UK and asked if he has any problems with this, which he didn't. He said he would even sign a letter saying that he is fine with them leaving the country. My thoughts are that just by including this letter it would make the ECO think the father has more of a role in her life than he already has. Does anyone think this letter is a good idea?

So bottom dollar. Am I correct does the mother just need to prove sole responsibility as custody orders in Thailand are irrelevant in the eyes of the UK?

Thanks for any replies....

[7by7]

Even though the custody order is not legally recognised in the UK, it is evidence which the ECO will take into consideration. As the point above that which you highlighted says, custody includes an assumption of who has responsibility for the child; joint custody means joint responsibility.

My advice is to change this custody. Easy to do at the ampur if the father agrees, more difficult to do via the courts if he doesn't. Then explain the situation in the sponsor's letter, stressing that despite having joint custody the father has never taken an interest in the child.

Whether or not you can get the custody changed from joint to sole, get a Kor Por 14 from the ampur. It's not a legal document in the UK, but it does carry weight with the ECOs in Bangkok.

You are quite correct; the father writing a letter to say he has no objections to the child moving to the UK is evidence that the father is exercising some parental responsibility, therefore the mother does not have sole responsibility. You want absolutely no input from the father at all.

[Ch23]

Thanks that was the response I was after and is probably the route I will go down.

It all depends on how charitable the father feels, needless to say we don't all get on.

[Basil B]

I often wonder in these cases whether the is any legal responsibility of the farther in such cases to make a financial contribution to the child's welfare? I am sure pursuing a farther for maintenance would soon change things.

[7by7]

Except that in a UK settlement visa application for the child the absent parent paying toward the maintenance of the child could have an adverse effect on the sponsoring parent's ability to show sole responsibility!

From the ECG's on sole responsibility, one of the factors the ECO has to take into consideration is: "By whom, and in what proportions, is the cost of the child's maintenance borne?"

[Ch23]

Strangely, after 6 years of not showing any meaningful interest at all, when he took my wife to court and got joint custody one of the conditions was that he pays 3,000 bht per month in maintenance support. (He only did it to annoy my wife because they work in the same industry and have the same friends and wanted to look more respectable) He seemed very annoyed at this but because he had got so far down the line he agreed to do it and has paid every month since then.

To us the money is arbitrary, we have never touched it and have no intention to. We don't need his money or have ever asked for it. The cash would just be given to the daughter when she old enough. To be honest 3000 bht a month is an insult in comparison to how much we spend. Wouldn't even pay for her medicine and what about the six years before that!

Even stranger, although he went through the effort of all this and pays every month he still shows no interest towards her at all. No birthday card, calls, visits or days out. in the last 3 months he showed up for 20 mins at her school because he was driving past. before that he took her to eat one Sunday in about April.

I would hardly call a few pennies fatherhood.... but I appreciate the point.

Edited January 4, 2014 by Ch23

[steady]

The fact that the father has being paying the 3000 baht every month since ordered to by the court weakens your case immensely. There is no way that your wife can say that she exercises sole responsibility if she is getting a regular maintenance payment from the father. I would imagine that it would require another court order to have the payment stopped but that still won't undo what is already on record. I imagine that the ECO would look at this with some suspicion.

[Mario2008]

A bit off topic, but the general rule is an award of between 3,000 and 6,000 baht a monht plus sharing the medical and educational costs.

Having sole responsibility and receiving maintenance are two seperate things. Even if one doesn't have shared responsibilities and the mother would have sole parental rights, the father is still liable to pay child maintenance.

You must be the legal father to be ordered to pay child maintenance, but it doesn't mean you also have parental rights.

(Under Thai law the mother could have allowed to father to become the legal father, but in court object to any attempts by the father to also get shared parental rights).

[7by7]

I appreciate what you are saying, Mario; but the application will be judged under the UK immigration rules; not Thai family law.

That the father is paying maintenance is a factor for the ECO to consider; but by itself does not scupper the application.

The more evidence showing the mother is responsible in all other areas and the father plays no part in making the decisions over the child's life and has little or no contact with the child, the better.

[Basil B]

CH23, you write "they work in the same industry".

I am assuming both are somewhat more educated and higher up the social ladder than the typical Isan rice farmer come gold digger/deadbeat/bar worker.

Is relationship between your wife and her daughters farther so bad that they could not talk on the phone?

Maybe time your wife got out the "olive branch" and phone him and ask if he is really interested in his daughters welfare, do not mention going abroad in the first instance.

You may find, he has no objection to her coming with you, faced with an alternative of having to take care of the child himself.

Edited January 5, 2014 by Basil B

[steady]

I think that the arguments that the maintenance payments in themselves do not actually stop the notion of 'sole responsibility' can't be argued against - in a court. However looking at this forum and others I can't imagine a standard scenario where the ECO would allow a visa. That said perhaps if lots of mitigating and exceptional factors were included an application may be successful. This is written only from anecdotal evidence seen on places like Thaivisa and discussions with others who have applied for settlement visas. When sole responsibility is discussed there is a feeling that it must be water tight and any involvement (however small) from others is always looked on as a negative factor. I hope that I have wrongly concluded that negative means failure.

[Ch23]

Sorry have been away from the pc today.

I agree steady, that perhaps under uk law it would weaken my case. But as a Thai court order is not recognised under uk law then how could it?

Obviously as mario and 7 by 7 have written it would be a factor in the eco's decision but my plan is to stress that although he has paid it is a pittence really. Would b nice if paid school fees or his share of the last 9 years. But we dont need his cash! Relationship wise the child is scared of him and he spends very little time with her. As i have already stated.

Basil b your right they are not rice farmers etc. They do hate each other especially after going to court for no apparent reason. Its not as though he exercised any rights. Just looks smug next to his friends.

The wifes daughter has told him she wants to go and he said thats fine, so fingers crossed they will sort it all out at the ampur tommorrow...

On a second note (and i dont want anyone to do it as you could get in trouble) when the wife called the ampur on friday to ask some q's the operator said. 'If your not on good terms just bring two relatives down to sign the por kor 14 stating that you cant get hold of him and the mother is the sole carer (basically told my wife to lie) because they dont check'. One of those TiT moments.

Clearly this isnt the route we will take. But takes the mick a little.

i will keep you updated with the outcome...

Sent from my GT-N8000 using Thaivisa Connect Thailand mobile app

[steady]

Ch23, remember that the ECO is only going by the rules set down and unless you show something exceptional then the ECO will only see that maintenance has been paid regularly. I certainly wouldn't like to try to define what constitutes 'sole responsibility' (even though it's described by UKBA) but would rather not have your situation to deal with. It's a general view but if you asked a group of people, "How would you define sole responsibility?" How many would agree that someone has sole responsibility if money was being paid monthly from somewhere else. This is what you must overcome.

That said it appears that if you can find some workaround using words like exceptional and compelling reasons then you may well be successful. Good luck.

[Ch23]

Duly noted i shall be sure of the wording that i use.

Now i am confused. The wife called her ampur today. She is adament from the advise the ampur gave her that kor por 14 is just for situations where the bio. father is missing and you bring two relatives along to confirm that. Nothing else. She was told that she needs the father to sign a letter stating that hes fine for her to go. Not what i need. Correct?

Whats more the ampur said custody can only be changed by a judge. :s this is all conterary to what i thought would be the process.

Good news is the father said he will sign whatever we want him too.

Could someone please state what it is he needs to sign at the ampur? Is it a case of speaking to the manager as the clark has got it wrong or has something been lost in translation? A crystal clear explanation would be mutch abliged. Thanks!

Sent from my GT-N8000 using Thaivisa Connect Thailand mobile app

[steady]

You probably need a judge to change the maintenance situation because it was a court order that decreed it earlier. If this is true then there is every chance that the father's letter will have to be in some way rubber stamped by the court too. In my experience a KP14 is used when there has been no input by the court - a sort of poor man's legislation, which is exactly what it is.

Perhaps the letter from the father will have to be the way you described it. That is, he did 6 years with no contact, got a bit cantankerous and applied for the court order for all the wrong reasons and now wishes he hadn't. In the meantime he has had no contact and does not wish any future contact. The letter would have to be a bit heavy to convince the ECO. Would the father sign something so damning to him?

Perhaps you should consider getting the maintenance stopped legally and then waiting a while before applying for the visas. At least that way you could show the sole responsibility more clearly and have a better chance of being successful your application.

[Ch23]

Short update on the outcome of this...

Firstly Steady was on the money with his analysis. however things are never quite that simple and I expect that if other people are going through this process it may well turn out different for them.

Basically:

- after being told you can and can't do it at the ampur by the people who work there (either by lying and saying the father is dead or by getting him to sign other pieces of paper) it turned out you cant. Basically khor por 14 is (as steady puts it) a poor mans legislation that once a judge has gone above and beyond it (in our case a judge had all ready given 50/50 custody) only a judge can reverse that decision or do anything else to it.

- so the wife had to get various other bits of paper and get scheduled for a court date. One thing to point out is you need to make sure you have the correct judge for your district or ampur office.. After being told it would take 1 month, we were then told 3 months, then we were told we had the wrong judge for the fathers ampur office, then that judge said he didnt mind and would do it anyway within 6 weeks!

- anyway the father didnt care and was happy to sign whatever we wanted. Once the court date came up we spent all of 10 minutes with the judge, signed a few documents infront of him, and there we have it. Everyone is happy.

Whole process cost about 6,000bht we took some free 'advise/help' from a lawyer and gave him a small tip as a thank you. although you could done it by yourself as everyone in the ampur/court house seemed reasonably competent and happy to help. .

I wont say if any 'thankyou' money was exchanged, because even i'm not sure. obviously there was no 'standard' price quoted. Definatley the decision wasn't altered in anyway because the outcome was what everyone wanted; but there was alot of confusion about their availability. Who knows maybe other families dropped out and dates got cancelled or the judge booked some time off work. stuff happens.

Essentially i think it was a fair price and we were lucky that they decided to speed our date up cause I had the impression they could drag it out as long as they want, especially with all the 'mob' delays in BKK atm.

thanks for your help...