Wednesday, July 11, 2007

Custody battles over children: what determines fitness of a parent over another?

Notes: (1) Click the picture to download a free PDF newsletter on this topic; (2) Please read my related posts titled “Visitation rights over illegitimate children”; and “How do our courts determine which parent has the right of custody of the children?”.


Nothing can be more traumatic than a husband and a wife’s battle for custody of their children, except probably for a child to know that his or her parents are in a bitter, legal tug-of-war for his or her custody.

Welfare of the minors is the controlling consideration; factors which determine fitness of a parent

The Supreme Court in the case of Bondagjy vs. Bondagjy (G.R. No. 140817. December 7, 2001) stated that the welfare of the minors is the controlling consideration on the issue. The Court also said that the factors that determine the fitness of any parent are:

[1] the ability to see to the physical, educational, social and moral welfare of the children, and

[2] the ability to give them a healthy environment as well as physical and financial support taking into consideration the respective resources and social and moral situations of the parents.
Excerpts from the Supreme Court decision

Posted below are excerpts of the Bondagjy decision (emphasis by boldfacing supplied). The PD 1083 mentioned in the decision refers to the Code of Muslim Personal Laws.

[1] Is a wife, a Christian who converted to Islam before her marriage to a Muslim and converted back to Catholicism upon their separation, still bound by the moral laws of Islam in the determination of her fitness to be the custodian of her children?

The standard in the determination of sufficiency of proof, however, is not restricted to Muslim laws. The Family Code shall be taken into consideration in deciding whether a non-Muslim woman is incompetent. What determines her capacity is the standard laid down by the Family Code now that she is not a Muslim.

Indeed, what determines the fitness of any parent is the ability to see to the physical, educational, social and moral welfare of the children, and the ability to give them a healthy environment as well as physical and financial support taking into consideration the respective resources and social and moral situations of the parents.

The record shows that petitioner is equally financially capable of providing for all the needs of her children. The children went to school at De La Salle Zobel School, Muntinlupa City with their tuition paid by petitioner according to the school’s certification.

[2] The welfare of the minors is the controlling consideration on the issue.

In ascertaining the welfare and best interest of the children, courts are mandated by the Family Code to take into account all relevant considerations.

Article 211 of the Family Code provides that the father and mother shall jointly exercise parental authority over the persons of their common children.

Similarly, P.D. No. 1083 is clear that where the parents are not divorced or legally separated, the father and mother shall jointly exercise just and reasonable parental authority and fulfill their responsibility over their legitimate children.

Either parent may lose parental authority over the child only for a valid reason. In cases where both parties cannot have custody because of their voluntary separation, we take into consideration the circumstances that would lead us to believe which parent can better take care of the children. Although we see the need for the children to have both a mother and a father, we believe that petitioner has more capacity and time to see to the children’s needs. Respondent is a businessman whose work requires that he go abroad or be in different places most of the time. Under P.D. No. 603, the custody of the minor children, absent a compelling reason to the contrary, is given to the mother.

[3] However, the award of custody to the wife does not deprive the husband of parental authority. In the case of Silva v. Court of Appeals, we said that:

“Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their upbringing and safeguard their best interest and welfare. This authority and responsibility may not be unduly denied the parents; neither may it be renounced by them. Even when the parents are estranged and their affection for each other is lost, the attachment and feeling for their offsprings invariably remain unchanged. Neither the law nor the courts allow this affinity to suffer absent, of course, any real, grave and imminent threat to the well-being of the child.

Summary:

[1] In custody disputes, the paramount criterion is the welfare and well-being of the child.

[2] General rule: custody of a child below seven years of age belongs to the mother.

[3] Exception: if there are compelling reasons, custody may be denied and granted to another party under Article 214 of the Family Code.

[4] Compelling reasons for a mother to lose custody: neglect; abandonment; unemployment and immorality; habitual drunkenness; drug addiction; maltreatment of the child; insanity; affliction with a communicable illness.

39 comments :

Anonymous said...

greetings atty, i would like to ask for your opinion on my situation.
i am separated from my husband not legally. we separated because he is having an affair with another woman and had a child with her. presently, he is living in with that woman and their child, while me and my son have our own apartment to stay. i work in an office and i have a yaya for my son. my husband does not give financial support regularly, so my inlaws sometimes takes over and gives support to us. ever since we separated, about 4 yrs, little by little he distants himself from my son. before he would come visit my son every 2 weeks and then lately months will take before he sees him. my inlaws regularly visits us every 2 weeks, and they are the ones getting updates about their grandson and tells my husband. i guess my husband doesnt want to see me thats why he seldom visits my son. my son who is 7 years old is beginning to ask me why his father do not stay with us and why does his father doesnt fulfill his role of being a father to him like his other classmates in school. i just change the subject whenever he asks because i dont want to rationalize to my son or give an impression to my son that me and his father have mutual views on the separation. he is slowly staying away from his responsibility to my son.

i would like to ask atty what do i have to tell my son if he asks questions about his father's absence? is my husband developing no concern with my son anymore that he is drifting away, much more at the time my son needs a father at his age? is it normal for a father that its ok with him of not being part of the life of his own child? because i can see in my son his longing for a father role in his life.
my heart breaks when i see my son like this.
can you help me atty? thank you so much for your time.

dreamer said...

This is how I think of the situation: Children will always ask question. Will you tell the child the truth,beat-around-the-bush, or assume. I would tell the child the truth, but just not in so many words, how ever I would try to explain, as long as I don't have to lie, it wont hurt me as much in the future.

Atty. Gerry T. Galacio said...

1. In terms of financial support, you can obligate your husband to support you and your son. Please read my post in this blog titled “Support for abandoned woman and family”. I also have a free PDF newsletter on this topic which you can download from my Family Matters website.

You did not state what led to your husband’s adulterous relationship. In my Salt and Light blog, I have several articles on marital infidelity. I highly advise that you read Dr. James Dobson’s book “Love Must Be Tough” on how to deal with an adulterous spouse.

2. Sadly, a lot of men do not understand or realize the impact they have on their children. Children who grow up without a positive masculine role model often have great difficulty believing in God. This was the experience, for example, of C.S. Lewis (he wrote The Chronicles of Narnia which was turned into a series of Hollywood movies). His father was a very strict disciplinarian who punished him as a young boy by asking him to recite the Lord’s Prayer in Latin.

3. Although it may be awkward and difficult to explain to your son what the problem is, it will be better in the long run for you to be honest with him NOW about his absentee father. You will be always evading the issue or be forced to invent various reasons why his father cannot be with him.

Please surf to my June 13, 2008 Father's Day post where I discussed the video "Father's Love Letter."

4. You can ask the help of your brothers (if any), your father, other male relatives, minister, schoolteachers, churchmates, etc to take your son under their wings, so to speak, and be the positive masculine role model your son needs. You should avoid what Dr. Laura (a well-known American counselor) said about the “feminization of boys.” Boys and girls are different. One resource you should definitely read is Dr. James Dobson’s book entitled “Bringing Up Boys.”

Please also avoid the mistake of telling your son that because his father is not with you, then he is the man of the house. That will just set him up for failure.

I can recommend to you the website www.crosswalk.com which has a section (or channel) on parenting with several articles for single parents. You can use this link:

http://www.crosswalk.com/search/single%20parents/

Also, Dr. Dobson’s Focus on the Family ministry has a website www.family.org. Please surf to the section on "Parenting/ Special Family Situations" where you will find articles such as: Adopting a Significant Family Purpose; Single Dads Raising Daughters; One Single Dad's Story; Next Steps / Related Information; As a single parent, am I deserting my children by taking a few days to myself?

Dr. Dobson’s article titled “ What encouragement can you offer to single parents?” can be found at

http://family.custhelp.com/cgi-bin/family.cfg/php/enduser/std_adp.php?p_faqid=908

Anonymous said...

thank you so much atty for your advices and suggested articles and books i can read to help me with my situation.

my husband was always passive before when i try to talk to him about his affair, he was in denial at first but when i found out proofs of his infidelity, he finally told me that i was the reason why he had that affair because i did not fulfill his desire of having another child with him after our first born.
in my heart atty, i wanted to have another child but i have a reproductive problem, so bearing another child will be a challenging one for me as i did with my firstborn. i was so thankful to God that He blessed us with our firstborn inspite of my reproductive problem. my OBGYN told me to wait a few years after our first born before i conceive again.
but my husband didnt understand my situation, he accuses me that i did not want another child so he was tempted to have one with a mistress.
but i believe atty that in our early years of our marriage that he has been philandering behind my back and when he mistakenly had his mistress pregnant, he put the blame on me because i have a reproductive problem.
my husband had many girlfriends before he was married to me. i didnt got a CENOMAR of him to check of his background, because i trusted him that much. he wasnt very open to talk about his girlfriends before and i respected that because i trust him. however, he was able to mention to me before, that before he had me as his girlfriend, he had an existing one. when we went steady, he did not ended his relationship immediately with the other girl, it went to a point that he had two of us as his girlfriends. but then at his own will, he broke up with the other one, and we were steady for 3 years before getting married.
i was so in love with him that i didnt forsee this kind of behavior in him about that situation having two girlfriends at the same time, and how can this be a piece of information on how will he handle relationships in the future.
when i found out about his affair, and he finally admitted it, he told me that there is nothing to talk about and he wants to get out of our marriage and if he has the money, he will file for annulment.
when he said that i believe he has come up with this decision of leaving us finally after denying the affair at first because he was still in the process of making decision of leaving us or not. so when he finally made that decision of leaving us, no one can change his decision not even his parents.
i also sought for his parents' help, but they cant do anything to the stubbornness of my husband.

atty, how can i explain this all to my son? about the situation of me and his father's infidelity? about why did his father left us?
can you please help me atty? i dont know how to explain to my son. i dont know what to tell him or not to tell him. can you give me an example of what to tell my son, please atty?
thank you so much po.

Sheila Marie said...

Greetings Atty,id like to ask if i can force the father of my son to visit him and spend time with our son.Our son is 6 yrs old now.Eversince i gave birth he has constantly visted our son on weends.It stopped only about two momths ago.He still continues to give financial support but thats not all im after.I want my son to grow up close to his father.My ex is 34 yrs old and is still single.

Atty. Gerry T. Galacio said...

sheila marie,

The love and care for a child are voluntary emotions and actions on the part of the father or mother. There is no legal remedy to force a father or mother to love his or her child. Please read my related article “Can you legally force your spouse to love and live with you?” (look for the link in the sidebar).

If you want people to pray for you regarding this situation, please follow this link to a prayer room for men and women:

http://womentodaymagazine.com/chat/share.html

Anonymous said...

What if the parents were never married. The mother has been taking care of the child since day 1, the father has not shown any kind of support, interest, or has not donated a penny towards the child's needs. He is now taking the mother to court seeking paternity and legitimation, and is also seeking joint custody but he has 4 other children that he owes child support on. The mother is about to graduate from college and feels like she can raise her son without the drama and leeching behavior that comes along with the father. Do you think the court will grant his wishes even though he has been to jail, owes thousands in child support, and is involved in questionable activity?

Atty. Gerry T. Galacio said...

First of all, an illegitimate child is under the SOLE parental authority of the mother as provided for by Article 176 of the Family Code.

Secondly, Philippine courts follow what is called the “best interest of the child” doctrine. Certain portions of the FC however lean towards the “tender years” doctrine. Whether "tender years" or "best interest" is used, I doubt very much if the court will grant the petition with the irresponsible nature and the criminal record of the biological father.

Anonymous said...

Can a "would-be" mom force the father to acknowledge(through surname and financial support) their child even if the father doesn't want to? Theirs is an extramarital affair because the man is already married though he is filing for an annulment. thanks atty.

Atty. Gerry T. Galacio said...

Please read my post titled “Support for abandoned woman and family.” The principles and procedures are the same, that is, avail of a Protection Order under RA 9262 to compel the man to provide support to the pregnant woman and the baby later on.

Anonymous said...

just a follow up to the previous post atty.. what if the wife of the man filing for annulment knew of this situation (pregnant other woman). what might possibly happen to the case? will it favor the wife now? pwede ba silang ipakulong ng wife?

Atty. Gerry T. Galacio said...

The wife has several options: file a case for concubinage against her husband and the mistress, or psychological violence under RA 9262.

Jojo said...

Dear Atty.,

I am the ninong of three, wonderful kids who I love so much as if they were my own children. In fact, I am the one supporting the education of one of the children, the middle of the three, whom I am the most closest to emotionally and feels the same way for me in return.

The father and mother lives in my house as my sort of "assistance" to them and also I want to be with the children and experience their presence.

However, the mother has been errign and doing some strange, mysterious actions lately - like leaving the house in the early afternoon, telling the kids that she is going to buy school supplies or whatever but then she comes home the following day at 10 a.m. intoxicated. We investigated and have discovered that she is seeing/dating a SP02 policeman. We also discovered that this has been going on for a long time now. The husband and wife are always fighting because of this but the wife who is an Ilongga (and not so educated) is very "mataray" and she threatens the husband that she will take the kids away and the husband will not see them anymore (which also means I will not see them too since I am close to the husband) and also demands "sustento" if ever they will spearate. She screams at the top of voice and is very scandalous specially when she is drunk. I pity my kumpare, the husband, because he is so tolerant and understanding and tries his best to try to mend the problem peacefully but the wife is very abusive and repeats her galivanting out at night. Also, I pity the husband because he is a part time reflexologist and whatever he earns he gives to her so that she can save the money but instead it appears she spends it on her drinking spree and we have been told by witnesses that she sometimes pays for the bill of the whole "barkada" of that policeman that we think she is having an affair with. Dapat with all the money he has been remitting to her from his part-time work he should already ahve saved almost 20K but when he asked the wife - wala daw! Geesh! She spends like there is no tomorrow and living the life of a single woman! To top it all she has in the past verbally threatened the husband re kilala nya isang pulis against him. We strongly believe that she is having an extra martal affair because of her regularity going out, lying and leaving the kids all alone with no one to watch them and retuning back the following morning but we have no solid evidence but all verbal reports from friends and witnesses and we do believe they are reliable. I and the husband are distressed by this and the husband would like to separate but he would also like to have custody of the children since he is the breadwinner (and of course I would also like to continue my assistance for the kids but I am at a dead end since I have no blood relations to them whatsoever).

I (or rather the husband) needs help as he is a battered husband psychologically by the wife but what is a common concern for both of us is that he at the same time will be able to gain custody of the kids specially the 2nd of the three. Please help! Whom can we approach for legal assistance - he doesn't earn much so is there some sort of a free public assistance office somewhere that can be of REAL assistance and be sympathetic to his cause?

We are in a dead end about this since neither of us have any legal experience or connections.

Thank you so much and please we need help.

Jojo said...

Dear Atty.,

Oh I forgot to mention that the SP02 police officer I was talking about is also a married man the info we got was from other policemen working in the same precint he is assigned to. Can the husband also file a case against that police officer aside from pursuing his cause with his wife and gaining custody of his kids?

Atty. Gerry T. Galacio said...

Please also read my post titled “Can a mother be deprived of custody of her child?” (look for the link in the sidebar). If the husband is able to prove that there are compelling grounds for depriving the mother of custody, then the court will grant custody to the father.

Your friend can file administrative case against the police officer with the IAS (Internal Affairs Service of the PNP). He can also inquire with the Public Assistance Bureau of the Office of the Ombudsman in Agham Road, Quezon City, if he can file the case directly with the Ombudsman.

As to the legal separation, custody of kids, your friend can try to ask for free legal help from the PAO (Public Attorneys Office) or from the IBP (Integrated Bar of the Philippines) chapter in your town or city. The IBP chapter offices are usually located in the Hall of Justice of cities. You can also try to get free legal help from the OLA (office of Legal Aid) of the UP College of Law in Diliman, Quezon City.

The DOJ Action Center also acts on complaints, requests for assistance and legal queries of walk-in clients of the DOJ. For legal assistance please visit the Department of Justice Action Center (DOJAC) Main Office, Ground Floor, Multi-Purpose Building, Padre Faura Street, Ermita, Manila; Telephone no: 523-84-81; Email Address: dojac@doj.gov.ph or visit any Regional/Provincial/City Prosecution Offices in your locality.

Parenthood said...

Good Day Atty. Galacio

i lost my love to my husband so i had committed adultery and now i'm pregnant with another man. i had a 5yr old daughter with my husband. since i am pregnant with my 5yr old daughter, we live with my parents. though he's giving a financial support, still its lack. now he's working abroad, he earns money but he gives us no half of his salary and sometimes delayed for how many months. when he found out that i'm pregnant, he took my daughter away from me and he decided that his sister in law would take care of my daughter while he's back in abroad now. what will be my rights for my daughter? they even don't want me to borrow my daughter... pls help me. i want my daughter back.

Atty. Gerry T. Galacio said...

You can file a petition for Protection Order under RA 9262 to regain custody of your child. Please read my posts on RA 9262(look for the links in the sidebar).

From a Biblical point of view however, the loss of love is not a ground for annulling a marriage, or an excuse for being involved in an adulterous affair.

Anonymous said...

ggod morning..my brother got married last 2006 thru a civil wedding..and he had 2 kids now 2 years old and 4 months old...
He had a hard time to look fof a job because of his age so my parents provide everything and me too..I was the one who provide money for 2 caesarian operations that cost 35thousand each...from giving birt..and i was very much disappointed because the girl choose to live in her parents house and since the birth of the children my parents were not able to see them because the wife doesnt allow my brother to visit my parents in davao..But my parents were the one whoe provide for the milk,foods and clothings because of my brother situation..

then last week his wife told him that she will changed the family name of my 2 nephews..because my brother cant give what she want i am overseas..i spent more money since 2005 for her knowing that she will be a good mother because she is a christian...

my parents were in davao and the children were in manila...do my brother had a right to bring my nephew to visit my parents in davao? or does his wife has the right to change the family name of the kids because she want too?whats our right as a provider of the kids needs...im overseas and i felt so bad for the kids because the woman cant provide anything when it talks about the future..til now my parents provide everything especially the milk..the side of the girl did not provide anything because they have no money...my parents continue to give money even if they were not able to see the kids...when they bay were hospitalized i sent money for the private hospital..i just want an answer if she can easily changed the family name of my nephews?what are the grounds of changing it...

hope to hear from you atty..thanks and have a blessed holy week...

Atty. Gerry T. Galacio said...

The children are legitimate and therefore their surnames are that of their parents (middle name is the mother’s surname and the surname is your brother’s surname). The wife cannot simply by her whim and personal desires have their names changed.

Anonymous said...

Hello Attorney,

I just learnt about Republic Act 9262 or the "Anti-Violence Against Women and their Children Act of 2004”. This is my story. I am now annulled and got the finality last year. I and my ex-husband have 3 kids, 14, 12 and 10 years old. The problem started when my ex-husband went to Japan to work. I and the kids stayed in the Philippines. He would go home in the Philippines twice or 3 times a year. Then one day I had my papsmear and he called that day and wanted to know the result. I joked and told him that I'm infected w/ a sexual disease and asked him if ke was cheating on me and having sex w/ other girls in Japan. His voice trembled and sounded worried. When I started laughing and told him I was just joking he got really angry. Which made me suspicious. Then one day he called overseas and asked him if he is cheating on me coz I could feel something different the last time he went home and called. And at that very moment he admitted he has a girlfriend there and they are living together and he told the girl that he is married but we are separated w/c at that time was a lie. Because we were together still. Learning about his "pambabae" really hurt me a lot and at that time my kids were 5years old, 3 years old and 1 1/2 year old. One of our close friends suggested that I should be smart and ask him to sponsor me to go to Japan so I could start earning for myself and my kids coz during our marriage I was a plain housewife. I thought "yeah, why not". Thinking I'll try to save the marriage eventhough he cheated because I wanted my kids to have a whole family and if things don't workout between me and my husband then I can start my life. So I told him that idea and he agreed but he had some terms. I shouldn't show my face to his girlfriend then and go and stay with my cousin who lives in a coutryside area in Japan. He was and is in Tokyo. So agreed but I wasn't able to get a good job in that area where my cousin was staying. So I called him up and ask if I could go to Tokyo and begged. Finally, he agreed after I begged and cried a lot but I have to hide from the girlfriend then. At that time I was really naive and stupid. Why do I have to hide? Anyway, I was able to get a job in Tokyo and few months after without knowing that he was actually keeping tab of the money that he has spent on me getting to Japan and while I was looking for a job. One day he surprised me and showed me a list of the amount I owe him up to the last centavo. I got annoyed and told him he doesn't have the right to make a tab and suddenly tell me I owe him that much. After that argument he stopped and told me I don't have to pay it anymore and I told him I don't owe him anything but he owes me a lot because he is the guilty party in this separation. Now, I have boyfriend and our marriage is annulled. I am still here in Tokyo and working. The kids were staying with my family in the Philippines. My mother past away two years ago and my father si diabetic and has high blood pressure. Despite the annullment I am in good terms w/ my in-laws. My ex-husband give child support- (20,000yen per kid). This year I agreed that the kids can stay w/ his family for a year or two while I'm waiting for my Canadian visa. Before he would be sending me 60,000 yen per month for child support for the 3 kids. But because the kids are now w/ his family. He won't be sending me the child support but send it directly to his family and he is asking me to help him financially. He has a live-in girlfriend now and she is 3 months pregnant. Now my question is, after all he did to me, can he do that ask ME to help him financially for the child support? What if I don't give him any financial help he was the guilty party anyway, will I be legally in trouble? Will he have a case against me if I don't give any? Sorry for the long story.

Atty. Gerry T. Galacio said...

Please read the court decision in your declaration of nullity case. That court decision outlines what obligations (financial, custody, etc) you and your ex-husband have towards your children.

LAZO DENTAL CLINIC said...

Good Day Sir,

We really need your advise..My cousin has 3 children with his ex girlfriend a 12 year old girl and twin boys age 9.They are not married, the twins is after his name. After they broke up 9 yrs ago the family of the girl didnt allow my cousin to visit his children even the mother dont let him visit their children. My cousin is jobless got depressed and rehabilitated due to alcoholic addiction, neither his father and siblings didnt allow them to visit the children, my cousin got out from rehab center and tried to visit his children again but still they keep the children far from him. they found out that the mother of his children got married and has 2 children from her husband and the sad part of it she intruduce the guy as the father of my cousins 3 children. The guy is working but the mother is not. With these situation what rights does my cousin have to his children? He is not after the custody because he cant afford since he is jobless, can he borrow the children for at least 1 overnight stay with him once in a while? Does his siblings and father who are capable of helping his children with their needs have the right to get a custody or a visitation rights. Does the children has the right to know who their father really is?....Thank you hope you can help us soon.

tin

Atty. Gerry T. Galacio said...

Please read my Legal Updates post titled “Visitation rights over illegitimate children” (look for the link in the sidebar)

The issue of visitation rights and support are separate. As you can read in this post ("Visitation rights"), your cousin has these rights and for your children to know you as their biological father. If your cousin and the children’s mother cannot agree, then your cousin will have to go to court to let it decide on the terms and conditions of his visitation rights.

“Does his siblings and father who are capable of helping his children with their needs have the right to get a custody or a visitation rights.”It is only your cousin (the children’s father) who has visitation rights. Your cousin’s siblings and parents do not have these rights.

Anonymous said...

dear atty...
good day. nagbabakasali na matulungan nyo ako sa sitwasyon ko. ganito kasi ako noon, from the celebration of our marriage 2003(civil in Manila City Hall), i stand as the breadwinner for my husband and an unborn child. we lived in his parents house, i sent him to finish his college educ. (he was turning in 2nd year but have to stop in 1st semester kasi i was pregnant and i ask him na unahin muna yung baby). and then, late 2004, we began fighting even in the littlest thing. he became suspiscious because i work so hard i leave house 5am and return almost midnight due to extend overtime. at first, nakikipaghiwalay na ako dahil inaabuso na nya ako, psychologically, mentally...and physically,he hit me several times on the face,pumapasok ako sa ofc na mixed yellow and purple ang mukha ko, still i covered it up sa ofcmates ko. pero hindi sya pumayag, he was in 3rd yr then. in short, nabola nya ako at nangako na magbabago at once na makatapos sya, hihinto na ako ng work at he will provide for us and get our own place. in 2005, nakikipaghiwalay na sya, ayoko naman kasi yung bata, paano na? he continued insulting me with words para ako na mismo humiwalay sa kanya. he provokes me para magalit, he always does. then when i got pregnant with our 2nd child, he despised me. hindi daw sa kanya yung bata. buntis ako at lagi nya akong pinapaiyak at ginagalit, very unhealthy para sa baby. i was very concerned to the child i have to escape from his sight. he keeps insisting na maghiwalay na kami despite the fact na buntis ako. he'll finish his studies oct 2006. bakit ngayon pa nya naisip makipaghiwalay. para syang wala sa katinuan. natatakot na ako sa kanya. nagpaaalam ako sa in-laws ko na magbabakasyon sa parents ko as soon as i filed my maternity leave... syempre, sinama ko yung panganay. hindi pa ako nakakapanganak, pinuntahan ako sa parents ko at nakikipag-ayos makipaghiwalay. so wala na kaming nagawa. nung manganak ako, wala sya, 3 days passed before he came to the hospital. at inaway away naman ako ng parents nya dahil ang gusto nila, sa kanila na daw yung panganay dahil may aalagaan na uli akong bago. (what kind of thinking is that?) at first, nakukuha nila yung panganay kung kelan nila gusto, kahit umuulan at ibabalik sa akin ng may sakit, dahil dun kaya hindi na ako pumayag. hindi ko naman sila pinagbawalan dumalaw. hindi sila kuntento dun. nag-file sila against me, "rotative custody" over minor children... after disowning my bunso? in terms of support, he only give what he wants, parang relief goods sa evacuation center, noodles, sardinas, toothpaste and others i call junks because it hurts my feeling as a mother seeing him treating my kids beggar. he never gave money. and now my panganay is turning 7 years old, i'm afraid he might get what he wants. gusto nya kasing madala kung saan nya gustuhin ang panganay for his parents (the first and only apo). he, himself, dont have any "amor" sa bata... just treating the child a toy or a display or a trophy. he's not even a good example as a person dahil sa harap mismo ng mga anak ko, minumura nya ang tatay ko. at lahat sa petition nya ay kabaligtaran ng totoong nangyari.

what should i do to get spousal support?
hindi naman sa masamang motibo, mababawi ko ba ang pinagpaaral ko sa kanya para naman maibigay ko sa mga bata?
anong gagawin ko para matapos na ang paghihirap ko sa kanya?
how will i fight for justice?

Atty. Gerry T. Galacio said...

Please read my post “Support for abandoned woman and family” (look for the link in the sidebar) or download from my Family Matters website the free PDF newsletter dated Issue no. 004 July 31, 2008 "Financial support for abandoned woman and her children".

Essentially, through a Protection Order, the court will order your husband and his employer to set aside a certain percentage of his salary to be remitted directly to you and your children on a monthly basis. If your husband and/or his employer fail to do so, they can be charged with contempt of court.

The amount of support is balanced between the necessities of the person asking for support and the financial capability of the person from whom support is being asked.

To settle the issue of custody or the parental visits, you have to file a petition in court asking it to set the terms and conditions your husband can have custody of your children.

You also have the option of filing RA 9262 cases against your husband (please read my RA 9262 posts; look for the links in the sidebar).

Husbands and wives are obliged to support each other. It is doubtful if you can have the money you spent for your husband's college studies reimbursed to you.

For free legal assistance, please contact the DOJ Action Center. The DOJAC acts on complaints, requests for assistance and legal queries of walk-in clients of the DOJ. For legal assistance please visit the Department of Justice Action Center (DOJAC) Main Office, Ground Floor, Multi-Purpose Building, Padre Faura Street, Ermita, Manila; Telephone no: 523-84-81; Email Address: dojac@doj.gov.ph or visit any Regional/Provincial/City Prosecution Offices in your town or city.

You can also try to seek help from the SALIGAN (Sentro ng Alternatibong Lingap Panligal) Manila, G/F Hoffner Building, Social Development Complex, Ateneo de Manila University, Loyola Heights, Quezon City, Philippines; Tel. (632) 426-6001 loc. 4858-4860, Telefax: (632) 426-6124; E-mail: saligan@saligan.org; Website: www.saligan.org

dali1966 said...

dear atty, my girlfriend has a malaysian husband, they are not yet divorced but due to his continued affairs my gf has moved back to phlippines from malaysia, her husband constantly threatens to come to the philipinnes and take her son away from her.
Could you please advise her as to his rifghts to do this. How does malaysian law stand up in the philipines. Is he just trying to scare her or is it possible that he is correct and he can coe to take her son from her?
Thank you very much in advance of your responce.

Yours sincerly

Ian

Anonymous said...

Dear attorney,
Good day po.
Kailangan kopo sana ng advice or opinon nio kung ano po ang dapat kong gawin..
Married na po kami ng husband ko for 5 years, pero nag decide na po kami na mag hiwalay na coz di na po talaga kami magkasundo.
Nagkaron ako ng affair sa married man. Tapos na po yun bago ko pa man cia maging bf.Alam po ng asawa ko ang past ko bago pa kami ikasal.pero sa loob po ng 4 na taon ng pagsasama namin madalas po na binubugbog nia ko at sinasabihan ng masasamang salita dahil sa pangit kong nakaraan.Lagi po niang iniinsist na nanlalake ako kahit hindi naman. Tiniis ko po yun sa paniniwalang nagkakaganun lang cia kasi nga dahil sa past ko.Pinapatawad ko cia everytime na humihingi cia ng tawad at sinasabing di na mauulit pang muli.Pero nung mangyari pa po ulit yun, gumawa cia ng sulat sa magulang ko na ipakulong na cia pag naulit pang saktan nia ko.Hindi na nga po nia ko nasasaktan pero patuloy pa din po ang mga masasakit na salita na sinasabi nia sa akin.
Ang problem ko po ngaun ay kung may karapatan po ba ako na mag file ng custody para sa akin ang anak ko na 2 years old lang?Usapan po namin na tuwing week end sa kanya pero di po natutupad kasi lagi din nia kinukuha ang anak ko sa tuwing gusto nia. Lagi po ciang nag iinom at puro barkada.Wala po kaming trabaho pareho pero may business po kami na pinatayo ng magulang nia.. dun po kami kumukuha ng pangsustento sa anak namin.At savings para sa anak namin.Ngayon po ako lang ang nag mamanage ng business namin kasi nasa lupa po namin yun.Pede po bang mag file ako ng child custody or pananakit sa akin kahit matagal na po yung ngyari?. aware po ang lahat na ginagawa sa akin yun ng asawa ko..
sana po matulungan nio ako..

Atty. Gerry T. Galacio said...

Your child is below seven and so custody belongs to you as the mother.

If the acts of violence were committed AFTER March 2004 (when RA 9262 Anti-Violence Against Women and their Children Act of 2004 became effective), then you can file an RA 9262 case against your husband. Please take note however that there is a prescriptive period of four years within which to file the case. This means that within four years after the acts of violence were committed, the case must be filed. Beyond the four year period, you can no longer file the case. For example, if the violence took place in April 2004, then it can no longer be filed today.

Seek the help of the Women and Children’s desk Officer of the nearest PNP Station in filing a case against your husband.

Under RA 9262, you can ask the court to issue a Protection Order so that your husband can be forced to leave your conjugal dwelling and to stay away from you and your child. Please read my RA 9262 posts (look for the links in the sidebar). Ask the help of the DSWD in your town or city in filing for a Protection Order under RA 9262.

Atty. Gerry T. Galacio said...

Ian,

The son is Malaysian in citizenship since his father is Malaysian. As to the laws regarding his custody, it is Malaysian law that will prevail. Please consult other lawyers who may have opinions different from mine.

For free legal assistance, please contact the DOJ Action Center. The DOJAC acts on complaints, requests for assistance and legal queries of walk-in clients of the DOJ. For legal assistance please visit the Department of Justice Action Center (DOJAC) Main Office, Ground Floor, Multi-Purpose Building, Padre Faura Street, Ermita, Manila; Telephone no: 523-84-81; Email Address: dojac@doj.gov.ph or visit any Regional/Provincial/City Prosecution Offices in your town or city.

Anonymous said...

Hi, i would like to ask about my nieces' situation and request your help on what options we can explore. My sister's husband has been having affairs with different women, although not simultaneously. The recent one was exposed by the other woman herself, with photos and friends to prove their affair. My eldest niece saw the photo and having heard her parents' discussion over it has affected her psychologically. She verbally told her mom that it's ok if her mom decides to kick her dad out, sensing that the issue may affect her mom's pregnancy. To make the story short, my sister did not kick her husband out and since the revelation she has been focusing more on her husband than the psychological effect on her daughter (her performance in school has deteriorated and she has been telling people how bothered she was that her dad had his arms wrapped around another woman). To make matters worse, her husband has been feeding negative things to my niece regarding her grandparents (my parents) and the rest of our family. He even forbids my niece from going to my parent's house or going with my mom. We can see that my niece is getting very confused as she is very close to my mom and she is being forbidden to be with her all of a sudden. She has now been showing episodes of tantrums, crying violently to tell my mother she can no longer come to visit (my mom and dad live a few houses away from my sister's house and my mom is the one who accompanies my niece to and from the school). This is very confusing for a child of 7 years. My sister, instead of mediating, sides with her husband and allows him to dictate every decision in their family no matter how detrimental to their daughter. As a backgrounder, my brother in law has been involved in and fired for mishandling of finances in his previous jobs. Aside from womanizing, he also is a financial burden as he even spends his children's money to buy branded clothing. Once, some people from the barangay went to their house to collect money he owed a woman and left his wife to face them. My niece was likewise home to witness the confrontatoin. He has been making loans under my sister's name and spends the money for his own pleasure. All loans are being left to my sister for settling. Is there any way that we can contest the custody of the chid, knowing very well that the child will choose her grandmother and that both parents are psychological not capable of protecting her? Can I or any of my other siblings file adoption since we are all living comfortably abroad? If these options are not possible, can we request temporary custody of my niece till her parents are cleared psychologically?

Atty. Gerry T. Galacio said...

Please surf to my website www.familymatters.org.ph and read “Rule on Guardianship of Minors” A.M. No. 03-02-05-SC and “Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors” A.M. No. 03-04-04-SC. Please also read my post “Procedures in adoption under RA 8552” (look for the link in sidebar).

Adoption is not feasible since I doubt if the parents would give their consent to it. As to filing a petition for the termination of the parental authority, or of temporary custody, that will be a very messy thing, with you and/or your mother involved in a legal tug of war with your sister and her husband over the child. The child will get caught in a much more complicated and traumatic situation. These are legal options which you and/or your mother should weigh very carefully.

Your mother can try to get the child to counseling. She can try to contact Ptr. Clem Guillermo and his wife, well-known family counselors, through their nightly radio program “Heartline” aired over DZAS 702 Khz, 10:30 to 12. I think the DZAS tel. no. is 92-11-52. The program is available on the Internet at http://www.febc.ph/stations/dzas/index.html . Ptr. Clem’s office is in the Back to the Bible Building, corner of West Avenue and EDSA (opposite SM City North EDSA).

If you prefer a psychiatrist to counsel your niece, please try to contact Dr. Randy Dellosa at http://www.randydellosa.com/

Anonymous said...

Dear Atty,

I am a single mom of an 8 month child. Is it possible to ask a support from his father even if he's living abroad. He has the dual citizenship of Filipino and British. I just want to be fair enough for my son since his father have 3 children in UK and Im pretty sure what my son is receiving right now is not as what the rule says of an illegitimate children. If its possible where will I go?

Atty. Gerry T. Galacio said...

Please read my post “Support for financial support for abandoned woman and family” (look for the link in the sidebar). Read also the comments and my replies to the comments.

Anonymous said...

Greetings Atty.
I would just like to ask, can I file a case for custody sa 2 children ko, hindi kami kasal ng kinakasama ko and foreigner sya, since nalaman ko na may babae sya na binabahay ngayon nakikipaghiwalay nako sa kanya pero gusto ko makuha yung custody ng dalawang anak namin,kailangan ko lang po ng legal advice para alam ko yung hakbang nagagawin ko.

Atty. Gerry T. Galacio said...

Parental authority and custody belong to you since your children are illegitimate. You can file a petition for Protection Order under RA 9262 in order to regain custody of your children. Please read my RA 9262 posts (look for the links in the sidebar).

The following are offices or agencies you can ask help from. The addresses are for Metro Manila but you can try to contact their regional offices (specially the NBI).

Department of Social Welfare and Development (DSWD) Crisis Intervention Unit (CIU) Rehabilitation Unit Tel. No.: (02) 734-8635 NCR Ugnayang Pag-asa, Legarda, Manila Tel. Nos.: (02) 734-8617 to 18

Philippine National Police (PNP) Women and Children’s Concern Division (WCCD) Tel. No.: (02) 723-0401 loc. 3480 Call or text 117 (PATROL 117)

National Bureau of Investigation (NBI) Violence Against Women and Children’s Desk (VAWCD) Tel. Nos.: (02) 523-8231 loc. 3403

DOJ Public Attorney’s Office Women's Desk, Tel. Nos.: (02) 929-9010; 929-9436 to 37

Anonymous said...

Goodmorning Atty,

I just need your opinion about this. If a mother has the custody of the child and the parents are not legally separated by court, they just distant themselves because the guy has an affair with other girls, too many to count by they are in different places and he has another child to one of his affairs. So he falls under Adultery/Concubinage.

When the mother had the child, she was still with the guy so in the birth certificate the "so-called" father acknowledge the child and lately the mother knew that the guy have different affairs with other girl.

Note that they are not married and they are separated for almost 4 years.

The mother didn't accept any support coming from the guy and she raised the child with the help of her parents and relatives.

My question is that, the child has his father's surname. The mother wants to have her surname used by his child. What are the things needed so that the child can have the mothers surname?

Thank you and have a good day

Atty. Gerry T. Galacio said...

Please read my post “What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines” (look for the link in the sidebar).

First of all, in terms of parental authority and custody, the child is illegitimate and so sole parental authority and custody belong to the mother. This is true even if the child is using the biological father’s surname.

It will be very difficult to change the child’s surname from that of the father to the mother’s surname. One, RA 9255 was meant for the benefit of the child in erasing the stigma of illegitimacy. Two, there have Supreme Court decisions that parents cannot choose for their children what surname they might want to use. Three, the child’s use of the father’s surname is beneficial since this will be proof of his/her right to inherit from the father under Article 176 of the Family Code.

I said it will be difficult but not necessarily impossible. Please consult other lawyers who may have opinions different from mine or who may be able to suggest alternative courses of actions.

Dutch23 said...

My partner and I have decided to separate after 3 years of living together. We are not married and we have 2 daughters who are 3 years old and 2 years old. Both our daughters are carrying my surname with my consent. She works for a cruise liner based in America and this January she will be leaving again for another 10 months duty, this will be her second trip. I work in a call center in alabang. What she wants is when she leaves again that our daughters stay with her mother in cavite. I on the other hand would like the kids to stay with me in paranaque while she is away. I understand that she has priority over kids since they are below 7 years old

My question is, when she leaves, does she have the right to deny my claim as the father and not have custody of the kids? I understand when she gets back then she has priority and I would willingly give back the children.

And If I am unable to have custody of the kids, what are my options or rights of visitation

What are the laws on the family code that can be used to apply to our situation and what are the laws that apply to me as a father?

Hoping for your legal advice. Thank You

Warren

Atty. Gerry T. Galacio said...

Warren,

What she wants is when she leaves again that our daughters stay with her mother in cavite. I on the other hand would like the kids to stay with me in paranaque while she is away. I understand that she has priority over kids since they are below 7 years old”

[1] Your children are illegitimate and so under Article 176 of the Family Code, sole parental authority belongs to the mother. Even if your children are using your surname in their birth certificates with your consent, they remain illegitimate. Even if your children reach seven years of age and above, they will remain under their mother’s parental authority.

Parental authority (which includes custody and the right to make all decisions regarding the children) belongs to the mother. She can thus decide as to which person she can entrust the children while she is away.

[2] What you have as the father has is visitation right. Please read my post on “Visitation rights over illegitimate children” (look for the link in the sidebar). If you and the mother cannot agree on the terms and conditions of the visitation, you will have to file a petition asking the court to set such terms and conditions.