Category Archives: Remedies

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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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.   

Enforcement of Child Support

The most common reason that prevents a wife from ending her loveless or abusive marriage is the lack of financial independence to rear her children from that union. Single mothers feel helpless as well, what with the seeming futility of obtaining child support from the fathers that left them.

Legally, our laws seem to have the right answers to the problems of child support. Initially, one asks the father for a regular amount and documents this demand in a letter commonly known as a “demand letter.” It is only when the father refuses to provide for the child that the mother resorts to judicial intervention.

Support pendente lite.

 A complaint, pre-trial and trial take place before the formal Order of the court is issued. Ordinarily, the mother can ask for support pendente lite, or while the case is pending, so that the immediate needs of the child are met. Assuming that the mother is able to present her case well, the court compels the father to provide something for the child/children monthly.

But a mother’s problems do not end with the court order in her favor. There are some fathers who, out of spite for their ex, or out of sheer irresponsibility, neglect to comply with their obligation. This leaves the mother feeling helpless. She did her part, fought for her child’s rights, won her case but experiences an empty victory that only looks good on paper.

What can she do now?
 

Remedies in case of non compliance.

 The law allows the mother to enforce the payment of child support by going back to the same court that issued the decision in her favor. This time, she can file a motion to cite the father in contempt for his failure to comply with the court order containing the support provisions.

If the child support issue is found in a parenting agreement approved in court, then the same agreement can also be enforced in a court action. There will be another exchange of comments, some hearings, and then another court order to execute the support provisions.

A mother is lucky if she can identify the current employment status of the father to ask for his salary to be garnished. A difficult father can hide his assets with the use of dummies, to keep it far from the mother’s reach.

In the meantime, the single mother weighs her options carefully. Most of the time, she hesitates to continue her quest for judicial relief only because she has financial constraints. She would rather use her limited funds to provide for her child’s needs and hers than use it to pay her lawyer’s huge legal fees.

It is easy to see why statistics show that the woman who separates from her husband and becomes the primary caretaker of her children is more likely to experience a decline in her personal income.  While this may be the reality, it does not have to be that way.

It takes a lot of political will to change the traditional ways of society. Though men who shirk from their financial responsibility are a dime a dozen these days, our legislators may well learn a thing or two from our American counterparts.

Child support enforcement.

In the U.S., the government takes child support enforcement seriously. Most states have support calculators, support offices that provide free mediation services, and the best part– the criminalization of the failure to pay support. It is the equivalent of discipline by spanking. In a culture that is increasingly known for breeding men who are spoiled brats, that may just be what our country needs.