Category Archives: Child Custody Rule

Can Father of Illegitimate Child Obtain Custody when Mother is Abroad?

An illegitimate child is one who is born of parents who were not legally married to one another at the time of the child’s birth, and who remain unmarried to one another.

By law and jurisprudence, the mother of an illegitimate child has sole parental authority and is entitled to keep the child in her company.  This rule continues to apply even when the father of the child acknowledges filiation (paternity), although the court may order the father to provide support as a result of the acknowledgment, but not custody.

In one case (Briones vs. Miguel, GR 156343, Oct. 18, 2004), the Supreme Court upheld the illegitimate child’s mother’s custody even when the mother was working in Japan and eventually brought the child out of the country to live with her there.

True, there are exceptions to this rule but only when there are compelling reasons to deprive the mother of custody.  Examples are neglect or abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable disease.

Merely working abroad while entrusting the child to the care of the maternal grandparents or other immediate family member does not seem to be one of the grounds for taking away custody from the mother.  It cannot be considered as abandonment or neglect as well.

Parental Leave for Solo Parents (RA 8972)

Single parents may be alone in raising their children, but Philippine Labor law provides some relief for them in the Parental Leave for Solo Parents Act.

“Parental leave” under this law refers to leave benefits granted to a solo parent to enable him/her to perform parental duties and responsibilities where physical presence is required.

Who may avail of this benefit:

Any solo parent or individual who is left alone with the responsibility of parenthood due to:

1.  Giving birth as a result of rape or, as used by the law, other
crimes against chastity;
2.  Death of spouse;
3.  Spouse is detained or is serving sentence for a criminal
conviction for at least one (1) year;
4.  Physical and/or mental incapacity of spouse as certified by a
public medical practitioner;
5.  Legal separation or de facto separation from spouse for at least one (1) year: Provided that he/she is entrusted with the custody of the children;
6.  Declaration of nullity or annulment of marriage as decreed by a court or by a church: Provided, that he/she is entrusted with the custody of the children;
7.  Abandonment of spouse for at least one (1) year;
8.  Unmarried father/mother who has preferred to keep and rear his/her child/children, instead of having others care for them or give them up to a welfare institution;
9.  Any other person who solely provides parental care and support to a child or children: Provided, that he/she is duly licensed as a foster parent by the Department of Social Welfare and Development (DSWD) or duly appointed legal guardian by the court; and
10.  Any family member who assumes the responsibility of head of family as a result of the death, abandonment, disappearance, or prolonged absence of the parents or solo parent: Provided, that such abandonment, disappearance, or prolonged absence lasts for at least one (1) year.
The Parental Leave Benefit:  The parental leave is an additional benefit which  shall be for seven (7) working days every year, with full pay, consisting of basic salary and mandatory allowances. 
Conditions for Entitlement

A solo parent employee shall be entitled to the parental leave under the following conditions: 
1.   He/she has rendered at least one (1) year of service, whether continuous or broken;
2.   He/she has notified his/her employer that he/she will avail himself/herself of it, within a reasonable period of time; and
3.   He/she has presented to his/her employer a Solo Parent Identification Card, which may be obtained from the DSWD office of the city or municipality where he/she resides.
Other important notes:
  •  This benefit is not convertible to cash if not availed of by the employee.
  •  Emergency or contingency leave provided under a company policy or a collective bargaining agreement shall not be credited as compliance with the parental leave provided for under RA 8972.
  • A change in the status or circumstance of the parent claiming the benefit under the law, such that he/she is no longer left alone with the responsibility of parenthood, shall terminate his/her eligibility for this benefit.

Hold Departure Order in Custody Cases

The prevailing rule is that a minor child should not be brought out of the country while the petition for custody is pending.

Temporary permission to take the child out is possible but the parent seeking to travel with the child abroad must first obtain the court’s consent.

Depending on the circumstances of the case, the court may on its own, or after an application by one of the parents, issue a hold departure order addressed to the Bureau of Immigration and Deportation, directing it to bar the departure of the minor without the permission of the court.

While the prohibition against taking the minor child out of the country already applies from the moment a petition for custody is filed in court, it is still necessary to obtain a Hold Departure Order and provide the immigration authorities a copy of it to effectively prevent any attempts to take the child out of the country.

Conversely, assuming there is a valid Hold Departure Order and the court subsequently allows the child to travel abroad temporarily, the parent accompanying the child will have to ensure that the immigration authorities are given a copy of the later order which clearly allows the child to leave.

The Philippines and The Hague Convention on Child Abduction

In October 1980, the Hague Conference on Private International Law unanimously adopted the Hague Convention on the Civil Aspects of International Child Abduction, which was signed by a number of countries including the United States. 

The goal of this multilateral treaty is to secure the prompt return of children wrongfully removed from or retained in any country which is a party to the Convention. The countries that are parties to the Convention have agreed that, subject to certain limited exceptions and conditions, a child who is removed from or retained in one of the signatory countries shall be promptly returned to the other member country where the child habitually resided before the abduction or wrongful retention. 

The Hague Convention is a return mechanism that does not resolve custody issues or any additional disputes concerning the child’s status.  It merely provides a remedy for one parent to obtain the quick return of a child to his or her habitual country, where custody and other disputed issues may be resolved.

At present, this Convention is the the only piece of international legislation that provides for the return of an internationally abducted child.   The Philippines and many Middle Eastern countries are not  signatories to this Convention.  This means that if your child is taken out of the country without your knowledge and consent by the other parent, even with a valid visitation agreement confirmed by a Philippine court, you may have problems seeking the return of your child if he or she is taken to a country that does not observe this Convention.

You may also want to read:

When Mother of Child Can be Deprived of Custody

As a general rule, a child under 7 years of age shall be in the custody of the mother (Art 213 of the Family Code). This is known as the maternal preference rule or tender-years-rule.

But this rule has exceptions: when the court finds compelling reasons to order otherwise. This includes finding compelling evidence showing the mother’s unfitness such as:

  • neglect
  • abandonment
  • unemployment
  • immorality
  • habitual drunkenness
  • drug addiction
  • maltreatment of the child
  • insanity
  • affliction with a communicable disease

Case law:  Agnes Hirsch vs. CA and Franklin Hirsch (GR No. 174485, July 11, 2007)

Some precautionary measures against parental kidnapping

Statistics show that most cases of parental kidnapping are committed by non-custodial parents (those who no longer live with their children) after separation.  But it can also be committed by a custodial parent when he/she brings the child outside of the state or of the country without the knowledge of the other parent, with the purpose of depriving the other parent of his/her visitation right. 

While there are legal remedies for the prosecution of a parent who commits parental kidnapping, it won’t hurt to take the following precautions: Continue reading

Preparing for Child Custody Battle

The importance of preparation in a child custody battle cannot be emphasized enough.  While it may seem that judges prefer to keep the mother and child together, this has not prevented the courts from granting the father joint custody, visitation or some form of access to the children.

As a parent, you have rights.  But if you sit on them, those rights can be taken away from you.  If you intend to obtain custody (sole or joint) or ample visitation rights, there are a couple of things you have to put together for your case: Continue reading

Family Law Update: Rules on Court-Annexed Family Mediation

The Supreme Court recently issued its rules on Court-Annexed Family Mediation which took effect sometime in July 2010.

Under these rules, all issues under the Family Code and other laws relating to custody, support, visitation, guardianship of minor child, property relations and other issues that may be the subject of a compromise agreement, must first be referred to a mediator while the main case will be suspended in the meantime.  Read the full text of the Rules here.

Things to Ask a Prospective Lawyer

Your child’s custody is a matter that should not be left to chance.  While you are ultimately the one fighting for your rights, your battle is best fought for you by a lawyer.  If you still do not have a lawyer and you are separated right now, then it’s time for you to start choosing one that’s best for you. 

Draw a list of names suggested by friends and colleagues.  Take the time to interview each one to find out the following:

  1. The lawyer’s views on annulment/divorce, mediation and joint custody.  You are looking for someone who shares your philosophy. 
  2. The length of his experience in family law.  You need a lawyer who is familiar with your local court personnel and the procedures.  He can be an asset if he has represented clients before the same judicial officers who may end up hearing your case.
  3. Estimated costs of cases similar to yours.  What you will hear is a ballpark figure to give you an idea if it is within your budget.
  4. Legal fees and billing practices.  He may have a flat fee and hourly fees.  It is also common practice to ask for a deposit and for you to be billed for phone calls, legal research, correspondence, court appearances and such other time spent in relation to your case.
  5. The attorney-client written agreement.  You should be able to have lawyer’s fees, billing procedures, the lawyer’s scope of work and his excluded services clearly written in black and white.  Take the time out to read and understand this document before signing it.
  6. Trust and rapport with prospective lawyer.  You want someone who you can get along with and can disclose all the gory details pertinent to your case.  There is nothing that a lawyer dislikes more than surprises in the courtroom.  Letting your lawyer know what you did wrong will help him/her formulate the proper strategy for you. 

General Tips for the Courtroom

Your pending family law case should be one of your most important concerns. 

While your lawyer will do the talking for you during hearings, don’t assume that the judge hearing your case won’t make personal observations about you and your ex in court.  The non-verbal cues you send across the courtroom can spell the difference between believing your story or your ex wife’s or ex husband’s. 

Here are some things to remember when attending a hearing:

  • Attend all your hearing dates and be punctual at all times.  Your regular attendance shows that your child is important to you and that you care about the outcome of your case.
  • Appear in clean and pressed clothes and observe good personal hygiene.  Looking like you just woke up or had a long night out drinking with friends may create a negative impression about how responsible you can be with your child.
  • Don’t bring along a new lover or partner during your hearing.  If you must need moral support, let a close relative or a friend of the same sex accompany you in court. 
  • Be attentive during the hearing.  Avoid side conversations with the person next to you  or talking to your lawyer while the court is in session.  If needed, your lawyer can ask for time to confer with you.
  • When making statements or answering questions in court, always address the judge as “Your Honor”.
  • Maintain a calm demeanor.  Don’t allow your ex wife to provoke you into saying something ugly in the presence of the judge.  Be at your best behavior regardless of how the other parent is in court.  Besides, shouting and other aggressive behavior may be considered disrespectful to the judge and may be cause for contempt.