Tag Archives: child custody

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.

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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. 

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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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