Category Archives: FAMILY CODE

Infidelity is not always Psychological Incapacity

The current trend in cases decided by the Supreme Court seems to uphold the validity of rocky (even dead) marriages as a recent case decided by the High Court prevented the dissolution of a marriage on the most common ground– psychological incapacity.

In this case, a married couple went their separate ways for more than 5 years, and the husband even lived with a third party and bore 3 children with her.   After the long separation, the husband decided to legally end his first marriage and filed a petition for declaration of nullity (“annulment” to laymen) in court.

The petitioner (husband) went through the usual procedures of proving his wife’s psychological incapacity by:

  • presenting a psychologist and an expert (priest) in canon law
  • alleging that he caught his wife in a hotel room with another man
  • alleging that she played mahjhong all the time and neglected her children
  • went out at night frequently and dated other men
The wife refuted all these allegations saying that she played mahjhong only 3 times a week and always with the husband’s consent, that she was never caught in plain view half naked in a hotel room with another man, and that she took care of all her children. After battling it out in the lower court and Court of Appeals, the parties presented their case to the Supreme Court which upheld the validity of the marriage.  It viewed the acrimony and infidelity of the spouses as circumstances which may have prevented them from keeping their marriage– possible grounds for legal separation, but not necessarily constitutive of psychological incapacity to nullify the marriage.   (The case of Valerio Kalaw vs. Ma. Elena Fernandez, G.R. No. 166357, Sept. 19. 2011)
Personal note:  After having been separated from her husband for so many years, and with full knowledge that he already lives with another woman and 3 children, what could possibly be the reason for the wife’s opposition to the declaration of nullity on ground of psychological incapacity? Pride can be self-defeating.
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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.

Proof of Relationship In Cases of Illegitimate Child Support

Generally, an illegitimate child is entitled to support but the law requires proof of filiation or relationship between the child and the supposed father.

The Supreme Court, in a line of cases, considered the following as acceptable proof of filiation:

  • voluntary recognition by the father in the birth certificate, will, or a statement before a court of record
  • an admission of filiation in a public instrument or a private handwritten instrument(document) AND signed by the parent concerned
  • a notarized agreement to support a child in which the father admitted his relationship to the child
  • letters to the mother vowing to be a good father to the child AND pictures of the father cuddling the child on various occasions, TOGETHER with the certificate of live birth.

So far, it seems that in the Philippines, only the University of the Philippines National Science Research Institute (UP-NSRI) DNA Analysis Laboratory has the capability to conduct DNA typing using short tandem repeat (STR) analysis.

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.

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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