Child custody issues are often intertwined with concerns about the child’s travel into and out of the Philippines.
This article discusses the interplay between the two.
It is often best that the parents come to an agreement about these issues, but legal action can be resorted to if that is not possible.
The deprived parent may file a court case for the custody of the child. The petition for custody should be filed with the appropriate Family Court in the Philippines.
The parent may also file a petition for writ of habeas corpus to require the respondent to produce the child before the court.
This petition may be filed with the appropriate Family Court or even directly with the Court of Appeals or the Supreme Court.
During trial, the court may issue a provisional order awarding temporary custody of the child to an appropriate, responsible person.
The best interest of the child is the determinative standard. The Rule on Child Custody set by the Supreme Court provides that:
In awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare.
The best interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development.
It also means the least detrimental available alternative for safeguarding the growth and development of the minor.
The Rule also directs trial courts to consider other factors. These are:
(a) Any extrajudicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contact with the non custodial parent on a regular basis, except when there is an existing threat or danger of physical, mental, sexual or emotional violence which endangers the safety and best interests of the minor;
(b) The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent;
(c) The health, safety and welfare of the minor;
(d) Any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minor, including anyone courting the parent;
(e) The nature and frequency of contact with both parents;
(f) Habitual use of alcohol, dangerous drugs or regulated substances;
(g) Marital misconduct;
(h) The most suitable physical, emotional, spiritual, psychological and educational environment for the holistic development and growth of the minor; and
(i) The preference of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit.
The laws further provide for additional considerations in certain cases.
In general, a married father and mother shall jointly exercise parental authority over the persons of their common children.
However, the Family Code puts illegitimate children (when the parents are unmarried) under the sole parental authority of their mother.
Mothers are entitled to the sole parental authority of an illegitimate child notwithstanding the father’s recognition of the child. In the exercise of that authority, mothers are entitled to keep their illegitimate children in their company.
The Court will not deprive them of custody unless there is an imperative cause showing the mother’s unfitness to exercise due authority and care.
In addition, Article 213 of the Family Code provides for the so-called tender-age presumption.
This provides that “no child under seven (7) years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.”
The rationale behind the tender-age rule was explained by the Code Commission thus:
The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age.
Having said all that, the best interests of the child remain paramount.
Thus, even a child of tender years may be granted to the custody of someone other than the mother if this serves the child’s best interests.[1]
[1] Masbate vs. Relucio, G.R. No. 235498, July 30, 2018.
The Supreme Court has ruled that the exception allowed by the tender-age presumption has to be for “compelling reasons” for the good of the child.
Those cases must indeed be rare, if the mother’s heart is not to be unduly hurt.
The following instances may constitute “compelling reasons” to wrest away custody from a mother over her child although under seven (7) years of age:
5. habitual drunkenness;
6. drug addiction;
7. maltreatment of the child;
9. affliction with a communicable disease.[1]
[1] Pablo-Gualberto v. Gualberto V, 500 Phil. 226, 250 (2005).
The law on kidnapping is found in the Revised Penal Code of the Philippines.[1]
It specifically excludes parents from prosecution for abducting their own child:
Art. 267. Kidnapping and serious illegal detention. – Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:
1. If the kidnapping or detention shall have lasted more than three days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person kidnapped
or detained; or if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, except when the accused us any of the
parents, female or a public officer.
Consequently, it is sometimes said that parental child abduction is not a crime in the Philippines.
However, subsequent provisions of the Revised Penal Code do provide for a parent’s criminal liability in specific circumstances:
Article 270. Kidnapping and failure to return a minor. – The penalty of reclusion perpetua shall be imposed upon any person who, being entrusted with the custody of a minor person, shall deliberately fail to restore the latter to his parents or guardians.
Article 271. Inducing a minor to abandon his home. – The penalty of prision correccional and a fine not exceeding seven hundred pesos shall be imposed upon anyone who shall induce a minor to abandon the home of his parent or guardians or the persons entrusted with his custody.
If the person committing any of the crimes covered by the two preceding articles shall be the father or the mother of the minor, the penalty shall be arresto mayor or a fine not exceeding three hundred pesos, or both.
These provisions have been employed to prosecute a parent in a specific case where the father and the mother were living separately and the custody of the child had been given to one of them by the court.
The parent who took the minor from the parent who had been granted custody by the court was charged with the crime of kidnapping and failure to return a minor under Article 270.
What is more, parent’s penalty of arresto mayor for violation of Article 270 or 271 is light compared to the penalty of reclusion perpetua to death for kidnapping under Article 267.
The former has a maximum of six months’ imprisonment – and might indeed entail no jail time at all – while the latter ranges from twenty years imprisonment to death.
[1] Article 267 of the Revised Penal Code, as amended by Republic Act No. 7659.
