Wednesday, December 26, 2007

DNA testing to prove legitimacy or illegitimacy of children; Supreme Court’s New Rule on DNA Evidence

Note: Please read the June 2011 Supreme Court decision in “Jesse U. Lucas, Petitioner, vs. Jesus S. Lucas, Respondent, G.R. No. 190710.” The Court ruled that “during the hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish a reasonable possibility of paternity.” This simply means that:

[1] the trial court must hold a hearing on whether DNA testing should be done or not;

[2] during the hearing, the petitioner (the mother or the child) must present evidence to prove that there is a reasonable possibility the man is the biological father;

Evidence to prove possibility of paternity could be testimonies of witnesses to the sexual or romantic relationship between the mother and the alleged father, videos, pictures, letters, etc.

The Court’s ruling protects the alleged father from mere harassment suits.

The issuance of a DNA testing order is discretionary upon the trial court. The court may, for example, consider whether there is absolute necessity for the DNA testing. If there is already preponderance of evidence to establish paternity and the DNA test result would only be corroborative, the court may, in its discretion, disallow a DNA testing.

The Supreme Court’s
Rule on DNA Evidence A.M. No. 06-11-5-SC became effective on October 15, 2007. The Court used the Rule in deciding the case of “Estate Of Rogelio G. Ong versus Minor Joanne Rodjin Diaz, Represented by Her Mother and Guardian, Jinky C. Diaz,” G.R. No. 171713, promulgated on December 17, 2007. The Court observed:

“For too long, illegitimate children have been marginalized by fathers who choose to deny their existence. The growing sophistication of DNA testing technology finally provides a much needed equalizer for such ostracized and abandoned progeny. We have long believed in the merits of DNA testing and have repeatedly expressed as much in the past. This case comes at a perfect time when DNA testing has finally evolved into a dependable and authoritative form of evidence gathering. We therefore take this opportunity to forcefully reiterate our stand that DNA testing is a valid means of determining paternity.” Agustin v. Court of Appeals
The facts of the case

A Complaint for compulsory recognition with prayer for support pending litigation was filed by minor Joanne Rodjin Diaz (Joanne), represented by her mother and guardian, Jinky C. Diaz (Jinky), against Rogelio G. Ong (Rogelio) before the Regional Trial Court (RTC) of Tarlac City. In her Complaint, Jinky prayed that judgment be rendered: (a) Ordering defendant to recognize plaintiff Joanne Rodjin Diaz as his daughter; (b) Ordering defendant to give plaintiff monthly support of P20,000.00 pendente lite and thereafter to fix monthly support; (c) Ordering the defendant to pay plaintiff attorney’s fees in the sum of P100,000.00 and (d) Granting plaintiff such other measure of relief as maybe just and equitable in the premises.

As alleged by Jinky in her Complaint, in November 1993 in Tarlac City, she and Rogelio got acquainted. This developed into friendship and later blossomed into love. At this time, Jinky was already married to a Japanese national, Hasegawa Katsuo, in a civil wedding solemnized on 19 February 1993 by Municipal Trial Court Judge Panfilo V. Valdez.

From January 1994 to September 1998, Jinky and Rogelio cohabited and lived together at Fairlane Subdivision, and later at Capitol Garden, Tarlac City.

From this live-in relationship, minor Joanne Rodjin Diaz was conceived and on 25 February 1998 was born at the Central Luzon Doctors’ Hospital, Tarlac City.

Rogelio brought Jinky to the hospital and took minor Joanne and Jinky home after delivery. Rogelio paid all the hospital bills and the baptismal expenses and provided for all of minor Joanne’s needs – recognizing the child as his.

In September 1998, Rogelio abandoned minor Joanne and Jinky, and stopped supporting minor Joanne, falsely alleging that he is not the father of the child.

Rogelio, despite Jinky’s remonstrance, failed and refused and continued failing and refusing to give support for the child and to acknowledge her as his daughter, thus leading to the filing of the complaint.

The RTC ruling: Joanne is the child of Rogelio
 
The Tarlac City RTC finally held that the only issue to be resolved is whether or not the defendant is the father of the plaintiff Joanne Rodjin Diaz.
Since it was duly established that plaintiff’s mother Jinky Diaz was married at the time of the birth of Joanne Rodjin Diaz, the law presumes that Joanne is a legitimate child of the spouses Hasegawa Katsuo and Jinky Diaz (Article 164, Family Code). The child is still presumed legitimate even if the mother may have declared against her legitimacy (Article 167, Ibid).

The legitimacy of a child may be impugned only on the following grounds provided for in Article 166 of the same Code. Paragraph 1 of the said Article provides that there must be physical impossibility for the husband to have sexual intercourse with the wife within the first 120 days of the 300 days following the birth of the child because of –

a) physical incapacity of the husband to have sexual intercourse with his wife;

b) husband and wife were living separately in such a way that sexual intercourse was not possible;

c) serious illness of the husband which prevented sexual intercourse.

It was established by evidence that the husband is a Japanese national and that he was living outside of the country and he comes home only once a year. Both evidence of the parties proved that the husband was outside the country and no evidence was shown that he ever arrived in the country in the year 1997 preceding the birth of plaintiff Joanne Rodjin Diaz.

While it may also be argued that plaintiff Jinky had a relationship with another man before she met the defendant, there is no evidence that she also had sexual relations with other men on or about the conception of Joanne Rodjin. Joanne Rodjin was her second child, so her first child, a certain Nicole (according to defendant) must have a different father or may be the son of Hasegawa Kutsuo.

The defendant admitted having been the one who shouldered the hospital bills representing the expenses in connection with the birth of plaintiff. It is an evidence of admission that he is the real father of plaintiff. Defendant also admitted that even when he stopped going out with Jinky, he and Jinky used to go to motels even after 1996. Defendant also admitted that on some instances, he still used to see Jinky after the birth of Joanne Rodjin. Defendant was even the one who fetched Jinky after she gave birth to Joanne.

On the strength of this evidence, the Court finds that Joanne Rodjin is the child of Jinky and defendant Rogelio Ong and it is but just that the latter should support plaintiff.
On 15 December 2000, the RTC rendered a decision which stated:
WHEREFORE, judgment is hereby rendered declaring Joanne Rodjin Diaz to be the illegitimate child of defendant Rogelio Ong with plaintiff Jinky Diaz. The Order of this Court awarding support pendente lite dated June 15, 1999, is hereby affirmed and that the support should continue until Joanne Rodjin Diaz shall have reached majority age.
Ong’s death while the case was pending before the Court of Appeals; CA remands the case to Tarlac City RTC for DNA testing

Rogelio Ong filed a Motion for Reconsideration, which was denied for lack of merit in an Order of the trial court dated 19 January 2001. From the denial of his Motion for Reconsideration, Rogelio appealed to the Court of Appeals. After all the responsive pleadings had been filed, the case was submitted for decision and ordered re-raffled to another Justice for study and report as early as 12 July 2002.

During the pendency of the case with the Court of Appeals, Rogelio’s counsel filed a manifestation informing the Court that Rogelio died on 21 February 2005; hence, a Notice of Substitution was filed by said counsel praying that Rogelio be substituted in the case by the Estate of Rogelio Ong, which motion was accordingly granted by the Court of Appeals.

In a Decision dated 23 November 2005, the Court of Appeals held:
WHEREFORE, premises considered, the present appeal is hereby GRANTED. The appealed Decision dated December 15, 2000 of the Regional Trial Court of Tarlac, Tarlac, Branch 63 in Civil Case No. 8799 is hereby SET ASIDE. The case is hereby REMANDED to the court a quo for the issuance of an order directing the parties to make arrangements for DNA analysis for the purpose of determining the paternity of plaintiff minor Joanne Rodjin Diaz, upon consultation and in coordination with laboratories and experts on the field of DNA analysis.
The Court of Appeals justified its Decision as follows:
In this case, records showed that the late defendant-appellant Rogelio G. Ong, in the early stage of the proceedings volunteered and suggested that he and plaintiff’s mother submit themselves to a DNA or blood testing to settle the issue of paternity, as a sign of good faith. However, the trial court did not consider resorting to this modern scientific procedure notwithstanding the repeated denials of defendant that he is the biological father of the plaintiff even as he admitted having actual sexual relations with plaintiff’s mother. We believe that DNA paternity testing, as current jurisprudence affirms, would be the most reliable and effective method of settling the present paternity dispute. Considering, however, the untimely demise of defendant-appellant during the pendency of this appeal, the trial court, in consultation with out laboratories and experts on the field of DNA analysis, can possibly avail of such procedure with whatever remaining DNA samples from the deceased defendant alleged to be the putative father of plaintiff minor whose illegitimate filiations is the subject of this action for support.
Rogelio’s appeal to the Supreme Court; DNA analysis no longer feasible after death?

Among other grounds, Ong’s appeal (as represented by his Estate) to the Supreme Court sought to reverse the ruling of the Court of Appeals by claiming that the CA erred when it remanded the case to the Tarlac City RTC for DNA analysis despite the fact that it is no longer feasible due to the death of Rogelio G. Ong.

In his petition, the Estate of Rogelio Ong asked that the Decision of the Court of Appeals be modified, by setting aside the judgment remanding the case to the trial court for DNA testing analysis, by dismissing the complaint of minor Joanne for compulsory recognition, and by declaring the minor as the legitimate child of Jinky and Hasegawa Katsuo.

Supreme Court ruling: Even the death of Rogelio cannot bar the conduct of DNA testing

In its decision, the Supreme Court discussed the Family Code provisions on filiation, presumption of legitimacy of a child (Article 167), basis for establishing legitimacy (Articles 172 and 175), among others. I have divided and numbered the pertinent portions of the Court’s ruling for easier reading and comprehension:
[1] As a whole, the present petition calls for the determination of filiation of minor Joanne for purposes of support in favor of the said minor.

But with the advancement in the field of genetics, and the availability of new technology, it can now be determined with reasonable certainty whether Rogelio is the biological father of the minor, through DNA testing.

[2] DNA is the fundamental building block of a person’s entire genetic make-up. DNA is found in all human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a person’s DNA profile can determine his identity.

DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is taken. This DNA profile is unique for each person, except for identical twins.

[3] Petitioner argues that a remand of the case to the RTC for DNA analysis is no longer feasible due to the death of Rogelio. To our mind, the alleged impossibility of complying with the order of remand for purposes of DNA testing is more ostensible than real. Petitioner’s argument is without basis especially as the New Rules on DNA Evidence allows the conduct of DNA testing, either motu proprio or upon application of any person who has a legal interest in the matter in litigation.

From Section 4 Application for DNA Testing Order, it can be said that the death of the petitioner does not ipso facto negate the application of DNA testing for as long as there exist appropriate biological samples of his DNA.

As defined above, the term “biological sample” means any organic material originating from a person’s body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva, and other body fluids, tissues, hairs and bones.

Thus, even if Rogelio already died, any of the biological samples as enumerated above as may be available, may be used for DNA testing. In this case, petitioner has not shown the impossibility of obtaining an appropriate biological sample that can be utilized for the conduct of DNA testing.

16 comments :

jane1305 said...

Dear Attorney,

I would like to ask your help as a Christian and as a lawyer. Me and my fiance who is an american and lives in USA), we agree and decided to get married this year.We are both Christians and true single. And in this reason, we agree to apply a fiance visa in order for us to be together sooner. But in the same way, we plan to get married here in Philippines with a ceremony only (solemnity by our Pastor and with the presence of our parents and relatives) and we will not file our legal papers yet for marriage since we know that if we will have a marriage contract here, we cannot apply the fiance visa. In this case, is it consider that our marriage (with ceremony only) is already valid in the eyes of God? Are we going to commit sin if we will do that both in the law of men and God? Please, I really need you help on this. Thank you po and God bless!

Atty. Gerry T. Galacio said...

jane1305,

The Bible states in Romans 13, among others, that we are to be subject unto the higher powers. That means we must follow what the government provides for unless what the government requires is contrary to what the Bible says. Your pastor recognized that government authority over him when he applied for a license to solemnize marriages.

For a marriage to be valid under the Family Code, the essential requisites (Article 2) and formal requisites (Article 3) must be complied with. Article 4 states that, “The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2). A defect in any of the essential requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable.”

Please clarify certain matters. Your pastor will just preside over a so-called marriage ceremony but you and your fiancé will not apply for a marriage license beforehand? And that there will be no signing of a marriage contract or certificate? OR do you mean to say that you will apply for a marriage license, sign the marriage certificate or contract, but that your pastor will submit the contract to the Local Civil Registrar later on? In the latter case, your pastor will be questioned by the LCR for the late submission of the marriage certificate or contract.

If you will just have a ceremony without applying for a marriage license first, then that ceremony will be a sham without any legal effect. For a marriage to be valid before God, it must follow the legal requirements. If you and the man have sexual intercourse on the basis of that ceremony, you will both be committing fornication.

My advice is for you and your fiancé to get married only after your petition has been granted. As of now, you, your family and your pastor are thinking in pragmatic terms that do not honor God by seeking shortcuts around the law.

Anonymous said...

Hi,
I was just wondering why you said Nicole is a "SON" don't you mean daughter?
What if the case is same thing but the mother and the child are in the US?Do the mother and the child need to be in the Philippines? Or can they just do it in the US and send the results in the Philippines? If both the minor and the mother is in the United States how can they test them? I mean, the child has to go to school too. They can't just go back home to the Philippines just like that. And how sure are you that those people who do the test are honest? I mean you know how it is there in the Philippines. You can bribe almost anyone. What if the family of the defendant paid those people to show that the defendant is not the father?

Just curious...

Atty. Gerry T. Galacio said...

1. It is obvious that you have read through this post since you were able to spot that item about “Nicole” and “son.” Please take note that these citations came verbatim from the Supreme Court decision as published in its website. Possible explanations are: (1) the RTC Tarlac committed a clerical mistake; (2) Any of the parties through their lawyers made the mistake when they submitted their respective pleadings before the Supreme Court; (3) It was the SC itself which committed the clerical error; or (4) it is possible that “Nicole” is really a son considering some Filipino parents’ penchant for exotic names.

2. As far as I know, there are only about three institutions in the Philippines which presently conduct DNA tests. These are St. Luke’s Hospital, University of the Philippines in Diliman and the Department of Science and technology. St. Luke’s is a world-class institution. Both UP and DOST are government instrumentalities which means that under the law, there is a presumption of regularity in the performance of official duties.

Meaning, whatever these three institutions do and say (even DNA tests) are highly credible.

3. DNA test results obtained in the US most probably will not be accepted in court here. It is because the persons who conducted such tests abroad cannot be placed on the witness stand and cross-examined by the opposing party’s counsel Of course, if the opposing parties will stipulate that they will abide with whatever the results of the DNA tests conducted abroad will show, then the court will accept that.

Anonymous said...

dear atty,

i would like to ask some help.Is there a place in the philippines who will conduct DNA testing?

Atty. Gerry T. Galacio said...

As far as I know, UP Diliman (a certain office there), either the Department of Health or the Department of Science and Technology, and St. Luke’s Medical Center all offer DNA testing. Cost is about Php 30,000.

Anonymous said...

attorney, I would like to ask for your advice. My son was conceived while me and my boyfriend were still together. Immediately after we broke up I found out that I was pregnant. Since then the father doesn't want to involve himself about our son. Claiming that he's not sure if it's his son. Now my son is already 7 months old. I don't know what to do in order to ask for child support. My son's last name is in mine. Please help me.

Atty. Gerry T. Galacio said...

You have to file a petition for compulsory recognition of an illegitimate child together with a request for the issuance of a Protection Order for financial support. Please read my post “Support for abandoned woman (look for the link in the sidebar). Since the man denies that he is the father, you will have to ask the court for DNA testing which is quite costly (minimum is around Php 30,000).

Josa said...

Good day, attorney!
I just want to confirm if is it true that I don't have the rights to file a case or complaint against the father of my children? He said we're just his mistress(he is also living in with another woman), we don't have the rights to do such actions. If so, Could I file any case against him for my children instead? Right now, I'm conceiving our second child. He compromised to give support to our first child, but until now he just kept on giving excuses to escape his obligations to our daughter. Could I set conditions to him for my children in legal ways? Hoping for some answers.. many thanks and God Bless!!

Atty. Gerry T. Galacio said...

Josa,

RA 9262 “Anti-Violence Against Women and their Children Act of 2004” applies to a wife, former wife, mistress, former mistress, girlfriend, former girlfriend, dating or sexual partner, former dating or sexual partner (even if such sexual relations did not result into a pregnancy or childbirth).

Thus, under RA 9262, you can file against the man (1) a civil case for damages, with Protection Order for financial support among others; (2) a criminal case, for example, under deprivation of financial support or psychological violence which carries a minimum penalty of six years imprisonment; and (3) an independent petition for Protection Order.

Please read my posts on RA 9262 and “Support for abandoned woman and family” (look for the links in the sidebar.

Anonymous said...

hi Atty good evening, can I just ask if where we could have nor conduct this DNA testing? And how much it cost? I could not really find such answers in internet. Please response, thank you and More Power.

Anonymous said...

And Atty, is it necessary to conduct DNA testing, the three of us, me, my child and the father who denied our child? And each of us cost 30,000? Please response, thank you.

Lise of Cagayan de Oro

Atty. Gerry T. Galacio said...

Lise,

St. Luke’s Medical Center in Quezon City provides DNA testing. Please get in touch with St. Luke’s as to what the price, terms and conditions are.

Rico said...

I married my wife because she was pregnant. My son is now 8 years old and as he is getting older, I started noticing that he looked nothing like me nor my wife. My wife and I have been having problems due to her infidelity. I wanted to have my son tested for DNA. I understand that there is one in St. Lukes, but do I have to consult a lawyer first before I have us both tested or could I go straight there and submit my son and I for testing? Thanks.

Atty. Gerry T. Galacio said...

Rico,

The way I understand it, St. Luke’s requires the written consent of both parents for DNA testing. You will have to inquire with St. Luke’s as to exactly what their requirements are.

The problem is that Article 166 of the Family Code of the Philippines provides for certain grounds and Article 170 for certain periods within which you should impugn (or question) the legitimacy of your child. Beyond these periods, you can no longer question your child’s legitimacy. The said articles state:

Art. 166. Legitimacy of a child may be impugned only on the following grounds:

(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of:

(a) the physical incapacity of the husband to have sexual intercourse with his wife;

(b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or

(c) serious illness of the husband, which absolutely prevented sexual intercourse;

(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or

(3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence.

Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded.

If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier

Anonymous said...

dear attorney,

I would like to submit to you my case in the hope that you could give me answers to the questions i'm having in my mind right now. I had a live-in girlfriend and we had a daughter. but then, I came to see an old letter telling that it is possible that the child who I knew was mine could not be mine at all. If I have proven that there is no filiation between me and the child through DNA testing, is there any chance of suing the mother through the damages incurred to me? If so, what possible charges could be imposed on her?
I'd appreciate your enlightenment on this matter. More power and God Bless you!

Anonymous Fellow