Category Archives: Best Interests of the Child

Traveling with Minors

Semestral or summer school breaks are great opportunities for children to travel abroad.

When traveling with minors, the key to a stress-free journey is advanced preparation. Here are some things to remember:

1.  For travels abroad, as a rule of thumb, a child will need a valid passport with at least 6 months left in its expiry period.

2.  Always check passports for expiry dates and apply for a renewal passport at the soonest time.  The Department of Foreign Affairs is reportedly experiencing some delays in the release of passports with RUSH applications reaching several weeks!

3.  A minor (below 18 years old) Filipino who is not traveling with any of his/her parents must have a travel clearance obtained from the DSWD.  Click on this link to learn more about the Travel Clearance and who needs it. 

4.  Parents with pending child custody cases should first obtain a favorable order from the court regarding any foreign travel to avoid being stopped at the airport (port of exit). Some immigration officers don’t bother to check the authority of parents to bring their children out of the country, but others still do.

5.  It can be especially stressful to lose a passport when one is abroad. Always keep photocopies of all the pages of a child’s passport to facilitate applications for new ones in case of loss or renewal.

6.  Teach children not to accept packages from anyone (friends and relatives included) to be carried or packed in any of their belongings.  Prohibited or illegal objects found in their possession during routine airport checks may subject them to penalties simply by having them in their luggage, bags or pockets.

7.  Make sure that your child carries a maximum of Php 10,000 (pesos).  If more, then you may have to secure prior approval to do so from the Bangko Sentral.  I suggest giving your child travelers checks which are typically denominated in US dollars or wherever possible, letting your child carry a supplement credit card that is internationally acceptable to finance his or her needs abroad.

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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.

Making Child Visitation Easier for Your Children

focus on being a parent to your children. 

While it’s normal to have negative feelings about your ex, you’ll have to resolve those issues privately, and not around your children.  Your goal should be to create a more peaceful life for them after the legal battle is over.  With a little practice and effort, you can help your children cope with the new living arrangement:

  • If you have nothing good to say about your ex, don’t say it.  Try to speak about your ex in positive terms when you are around your children.  If that’s not yet possible, then make it clear to your children that your issues are between you and your ex, and do not involve them.
  • Avoid heated arguments with your ex when your children are around. 
  • Do not use the children as couriers for information you should be discussing directly with your ex. Communicate by email or phone with your ex about matters pertaining to your children such as the monthly support and pick up times. 
  • Don’t use your children to gain personal information about your ex. 
  • Establish a regular routine as well as house and safety rules in your own home to bring some stability in the lives of your children.
  • Resist the urge to react negatively when your children rave about the other parent or about the things they do in the other home.   
  • Do not promote anger or hatred for the other parent, even if the separation was the other parent’s own doing.  Anger can prevent a child from maintaining a close personal relationship with the other parent.   
  • Reassure your children of your love, care and attention regardless of the situation.  Avoid using the threat of abandonment (even if it is an empty one) to instill discipline upon difficult children.  It is common for separated parents to see their children act out their emotional confusion and distress by being problematic or undisciplined. 
  • Be careful about misleading children into thinking that reconciliation between their parents is a possibility.  Some children find it difficult to adjust to the separation of their parents when they cling to the illusion that their parents will be back in each other’s arms someday.
  • Develop your own ways of displaying affection towards your children.  A hug or a pat on the back can bolster the verbal assurances you give your children. 
  • Acknowledge your children’s feelings for the other parent.  Allow them to express their emotions by crying and talking things over with you. 
  • Take time out to relax with your children.  Playing with your children also helps them heal from the psychic wounds inflicted by the separation. 

Some Dating Do’s and Don’ts for a Re-singled Parent

While being socially active after a separation or divorce is important, the presence of children from a previous marriage requires some adjustment in the dating process.  Some formerly married persons are wary about dating again because of the untold effects it may have on the children, as well as the status of an existing child custody order.  

Bear in mind that a perceived wrong while you are dating could be used against you in a case for modification of parenting or visitation agreement.

The following tips will not only help reduce the stress that comes with dating again, but more importantly keep you from being accused of disturbing the peaceful lives of your children. 

  • In the beginning of any new relationship, it is best to meet your new dates or prospects away from home and from the questioning looks of your children.
  • Dates should be introduced initially to your children as your “friends”.  If your child appears to dislike your dating, try explaining to your child how parents also need adult friends.
  • Avoid having different dates coming in and out of your home and your child’s life.  Multiple dates tend to confuse children and may add to their existing emotional baggage.
  • If you have joint physical custody, it is best to limit your dating to those times when your children are with the other parent.
  • Start the practice of locking your bedroom door for privacy long before you have someone spend the night with you. 
  • Exercise discretion in choosing who you allow your children to get close to.  Remember that children also get emotionally attached to people you may date after a period of time, and break ups may be hard on the children.
  • Expect and prepare for scheduling problems when parents accommodate their dates.
  • Avoid exposing your children to your sexuality with your new date.  It may not help in some cases for your children to witness or be aware of the sexual aspects of your new relationship.  Taking trips out of town or going to hotels for those occasions gives you better privacy.

 

With children to take care of, dating should not be rushed into.  Parents usually go to great lengths to keep their love life private.  You may also wish to consider keeping things to yourself for now.

Evolution of Child Custody Laws in the U.S.

The “tender years” doctrine or the “maternal preference” in child custody cases may soon be a thing of the past in the United States. In Florida, for example, a new law that is set to take effect in October 2008 expressly disallows any gender preference in the determination of child custody.

Historically, when spouses parted ways in the U.S. the archaic practice was to award custody of the common children to the father in the concept of property. Years after that, when most mothers took on the traditional role of housewife and caretaker of the children, the laws started to favor the mothers in what is now known as the “tender years” doctrine. This doctrine is also known as a maternal preference in child custody disputes because a child usually under primary school age is generally allowed to live with the mother.

The Family Code of the Philippines contains a similar preference for children below seven (7) years of age. Exceptions to the rule may be invoked by the father but he who alleges has the burden of proof to show that the mother is unfit to take care of the child.

In recent years, many states have decided to change their laws by eliminating the maternal preference in custody cases. In its place is the more fluid (to my mind) doctrine called “best interests of the child”. It is a legal animal that reminds me so much of “psychological incapacity” because of its lack of a clear and precise statutory definition. In Australia and in some states in the U.S., family law provisions merely provide a list of factors that a judge may consider in the determination of custody. These factors seem to level the field in the custody battle between both father and mother, perhaps with reason.

  • The emergence of the involved father. While the housewife has evolved into a working mother, the paternal breadwinner has eventually been replaced by the “Denim Dad.” A Denim Dad is more likely to spend time at home with the kids and can easily be spotted wearing worn out jeans in lieu of the traditional white shirt and tie. More and more dads are seen at PTA meetings and school functions, while the moms are busy elsewhere. Fathers are no longer embarrassed to ask for parenting advice and parenting counselors have devoted substantial book paper on parenting guides.
  • Work equality is taking its toll on mothers. Divorced mothers know this: A re-singled woman has to work in order to meet her child’s and her own needs. Finding a right balance between work and motherhood is extremely difficult if one does it on her own. A mother can be a good career woman or a good caretaker, hardly both.
  • The rising statistics of maternal unfitness. It would have been easier for a mother to maintain her nurturing status if she had been faultless. While current statistics still show that a mother is granted child custody 80% of the time in the U.S., the other 20% who fail to keep their children with them are usually found unfit due to drug use, harmful behavior, sexual misconduct and of late, parental alienation syndrome.

Recent developments in family law and jurisprudence serve as a wake-up call to mothers. Unfortunate examples like Britney Spears may have spurred those changes in the law. Nevertheless, staunch advocates of fathers’ rights still feel that the battle is one-sided in favor of the mother. That’s about to change. Without the maternal preference rule written in the law, some mothers may one day find themselves complaining the way these divorce dads do now.

 
 

The Wishes of the Child in Child Custody/Visitation

Child custody has become every separated parent’s dream battle.
It seems that letting the child choose is one dramatic event that vindicates one parent who may feel that the other parent deserves to be left behind by everyone, including the children.

Philippine laws adopt the “tender years” doctrine as a general rule because traditionally, it is the mother who stays at home and is the primary caretaker of the children. But over the years, the roles of father and mother have evolved so much that oftentimes there is a reversal of roles, where the mother may be the one bringing home the bacon while the father keeps house. While that may not be true for some, what is often the case is that women are more visible in the workfront these days that it may not be fair to say that the working mother is the primary caretaker.

This may explain why courts are not quick to apply the tender years doctrine especially when the father puts up a strong opposition to the mother’s preference. We have seen mothers deprived of their young children and more and more fathers given equal parenting time. But with older children, we often hear that perhaps the child has to make that choice who to live with. The question is: should the child even be given that choice?

When all the dust has settled and the wounds of a separation have turned into scars, a very thoughtful parent will tell you that making a child choose between two parents is like putting a child in the middle of a gunfight between the U.S. troops and Iraqi forces. There is no real victory after that crucial choice is made by the child. Any parent who is about to use a child or the children as pawns in the ongoing battle against an ex may well be reminded that:

  • Children have a right to be with both parents.
  • The child did not have a choice who to be born to, he/she should not be made to choose between the two.
  • Children are too young to make difficult life changing decisions such as parental choices. Some things are best left to the parents who are presumed to know what’s best for the children.
  • Choosing one parent over the other exposes the child to untold emotional and psychological suffering as the choice may lead one parent to reject the child or cause the child to experience feelings of guilt.
  • The separation is not the child’s fault. Making the child choose passes the fight between parents to the child’s corner.
  • Even if a child is vocal about his preference, a parent who is genuinely after the best interests of a child will admit that the child stands to benefit from the maintenance of close family ties with both parents.

Child Custody Rule

There is a direct correlation between the rising number of marriage nullity cases and child custody battles. Aside from the usual squabble over the partitioning of conjugal or community assets, the matter of who gets the kids is usually a continuous source of animosity among former spouses.

In all custody, support and visitation issues affecting children, the paramount and inflexible criterion is the interest of the child. In child custody cases involving children below seven years of age, the mandatory provision to reckon with, is what is known as the TENDER YEARS RULE.

 This rule is also known as the maternal preference rule because it states that, “No child under seven (7) years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.”

Thus, the law presumes that the mother is the best person to rear a child in the tender years.

In order to separate a young child from the mother, the father must go to court, allege the presence of a compelling reason against the mother, and prove the existence of such reason to the court.

What is a compelling reason varies from case to case. In some, the adultery of the mother was not sufficient to deprive her of her custody, while in another, the marital misconduct of the mother was taken into account. The relatively poorer status of the mother, as compared to the father’s, cannot be considered a compelling reason, if the mother’s source of income is sufficient to support her child. Drug abuse of the parent, however, seems to be compelling in all instances.

Where the child is an illegitimate one, the law automatically provides that custody of such is with the mother, consistent with the right of the child to use the surname of the mother.