VISITATION RIGHTS: STUDY ON PERSONS RELATED BY BLOOD OR ACTUAL RELATIONSHIP WITH A CHILD WITH A QUASI-PARENTAL STATUS

Abstract

This article explores problems with visitation rights under Section 1584/1 of the Thailand Civil and Commercial Code (TCCC), mandating that legitimate parents have the right to contact their children as appropriate circumstantially. As a result, others closely related by blood or actual relationship with a child with a quasi-parental status have no such right to contact their children. These include illegitimate father, stepparent, egg donor, sperm donor, embryo donor, surrogate, or same-sex partner. The aforementioned provision fails to clarify boundaries of visitation rights for persons with the right to contact a child while not impacting child custody or visitation rights, which must be in the best interest of the child. The TCCC prescribes no principles or guidelines for considering the scope or exercise of visitation rights or principles for considering the best interests of the child. Therefore, when a dispute occurs over visitation rights, to consider the scope and exercise of visitation rights, other laws must be introduced in addition to TCCC provisions to allow court discretion in trials and adjudication of cases. Other agencies may potentially be involved in considering situational assessment of appropriateness for individuals seeking visitation rights to be granted them, and to what extent.

Because of these problems, this article applies a comparative study of law in Thailand with law of the State of California, the United States of America (US) and Germany on visitation rights, child custody, and best interests of the child. Results were that laws of the State of California, the US and Germany stipulate that others closely related by blood or actual relationship with a child having quasi-parental status have visitation rights, including illegitimate fathers, stepparents, and same-sex parents. In the proceedings regarding visitation rights,

both nations also have written laws prescribing principles, measures, and restrictions of visitation rights and degree of strictness in contacting a child, principles for considering the best interests of the child, including the principle of child consent. The court is required to hear the child first, to appropriately consider the scope of visitation rights. A comparative study suggests that the TCCC should be amended to stipulate that others closely related by blood or actual relationship to a child with quasi-parental status should be accorded conditional visitation rights. The TCCC should prescribe clear and concrete principles, measures, and restrictions for visitation rights relating to contacting a child, degree of strictness in contacting a child, principles for considering the best interests of the child, and the age at which children may give consent. In addition, the article proposes an amendment to Juvenile and Family Court and Procedure Act B.E. 2553 (2010), especially in family cases in which minors have interests. The court must be required to hear the child first, to appropriately consider the scope of visitation rights.