Custody battles over children between grandparents and a mother or father

Summary: 1. In custody battles, the law favors the parents over the grandparents (Santos vs. CA, G.R. No. 113054 March 16, 1995). The law considers the natural love of a parent to outweigh that of the grandparents, such that only when the parent present is shown to be unfit or unsuitable may the grandparents exercise substitute parental authority. 2. The mother or father can regain custody if the grandparents have, by force or stealth, taken away their grandchild. The legal remedy is filing a petition for habeas corpus under the Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors A.M. No. 03-04-04-SC or a petition for Protection Order under RA 9262. 3. The father's visitation right over an illegitimate child is personal to him; it cannot be exercised by others, such as the child’s grandparents. Unresolved legal issue: If the mother of an illegitimate child dies, who will exercise parental authority? The biological father? The grandparents? Which grandparents - paternal or maternal?

I have previously written about custody battles over children between the father and the mother. In this post, I will discuss the following issues:

• Family Code provisions on parental authority
• Custody battles over children between a parent (either the father or the mother) on one side and grandparents on the other side
• Supreme Court ruling in Santos vs. CA: In custody battles, the law favors the parents over the grandparents
• Natural love of a parent outweighs that of the grandparents
• If the grandparents have, by force or stealth, taken away the grandchild, how can the mother or father regain custody?
• If the mother of an illegitimate child dies, who will exercise parental authority?
• The father's visitation right over an illegitimate child is personal to him; it cannot be exercised by others, like the child's grandparents

Why do grandparents want custody of their grandchildren?

The grandchildren may be so cute and lovable that some grandparents are fighting tooth and nail for their custody. Sometimes it seems that grandparents are more interested in having custody rather than the parents themselves. Some women have e-mailed me saying that their child’s father do not really want to have anything to do with the child, but that it is the grandparents who want to have the time and opportunity (if not outright custody) to be with the child.

Why? Someone said that it is because the grandparents already failed with their own children and they want another chance to make up for their mistakes. This time, hopefully with their grandchildren, they will be able to do things right.

Family Code provisions on parental authority

Articles 209 to 233 of the Family Code are the governing laws on parental authority. Below are some articles relevant to our discussion:

Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.

Art. 210. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law.

Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.

Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority.

Art. 212. In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children.

Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

Family Code provisions on substitute parental authority of grandparents

Articles 214 and 216 of the Family Code deal with situations when grandparents can exercise substitute parental authority over their grandchildren:

Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.

Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated:

(1) The surviving grandparent, as provided in Art. 214;

(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and

(3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.

Whenever the appointment of a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed.

In custody battles, the law favors the parents over the grandparents

The Supreme Court in the case of Santos vs. CA (G.R. No. 113054 March 16, 1995) laid down the rule that “the law considers the natural love of a parent to outweigh that of the grandparents, such that only when the parent present is shown to be unfit or unsuitable may the grandparents exercise substitute parental authority.”

The facts of the Santos case

Petitioner Leouel Santos, Sr., (“Santos” for brevity) an army lieutenant, and Julia Bedia, a nurse by profession, were married in Iloilo City in 1986. Their union produced only one child, Leouel Santos, Jr. who was born July 18, 1987.

From the time the boy was released from the hospital until sometime thereafter, he had been in the care and custody of his maternal grandparents, private respondents Leopoldo and Ofelia Bedia (“Bedias” for brevity).

Santos and wife Julia agreed to place Leouel Jr. in the temporary custody of the latter’s parents, the respondent Bedias. The latter alleged that they paid for all the hospital bills, as well as the subsequent support of the boy because petitioner could not afford to do so.

The boy’s mother, Julia Bedia-Santos, left for the United States in May 1988 to work. Santos alleged that he was not aware of her whereabouts and his efforts to locate her in the United States proved futile. The Bedias claimed that although abroad, their daughter Julia had been sending financial support to them for her son.

On September 2, 1990, Santos along with his two brothers, visited the Bedia household, where three-year old Leouel Jr. was staying. The Bedias claimed that through deceit and false pretensions, Santos abducted the boy and clandestinely spirited him away to his hometown in Bacong, Negros Oriental.

The Bedias then filed a “Petition for Care, Custody and Control of Minor Ward Leouel Santos Jr.,” before the Regional Trial Court of Iloilo City, with Santos, Sr. as respondent.

After an ex-parte hearing on October 8, 1990, the trial court issued an order on the same day awarding custody of the child Leouel Santos, Jr. to his grandparents, Leopoldo and Ofelia Bedia.

Santos appealed this order to the Court of Appeals (CA). In its decision dated April 30, 1992, the CA affirmed the trial court’s order. The Court of Appeals held that although there is no evidence to show that petitioner (Santos Sr.) was “depraved, a habitual drunkard or poor, he may nevertheless be considered, as he is in fact so considered, to be unsuitable to be allowed to have custody of minor Leouel Santos Jr.” The CA ruled:

From the evidence adduced, this Court is of the opinion that it is to be (sic) best interest of the minor Leouel Santos, Jr. that he be placed under the care, custody, and control of his maternal grandparents the petitioners herein. The petitioners have amply demonstrated their love and devotion to their grandson while the natural father, respondent herein, has shown little interest in his welfare as reflected by his conduct in the past. Moreover the fact that petitioners are well-off financially, should be carefully considered in awarding to them the custody of the minor herein, lest the breaking of such ties with his maternal grandparents might deprive the boy of an eventual college education and other material advantages (Consaul vs. Consaul, 63 N.Y.S. 688). Respondent had never given any previous financial support to his son, while, upon the other hand, the latter receives so much bounty from his maternal grandparents and his mother as well, who is now gainfully employed in the United States. Moreover, the fact that respondent, as a military personnel who has to shuttle from one assignment to another, and, in these troubled times, may have pressing and compelling military duties which may prevent him from attending to his son at times when the latter needs him most, militates strongly against said respondent. Additionally, the child is sickly and asthmatic and needs the loving and tender care of those who can provide for it.

His motion for reconsideration having been denied, Santos appealed to the Supreme Court.

Issues before the Supreme Court

1. Between Santos, the father, or the Bedias, the grandparents, who should properly be awarded custody of the minor Leouel Santos, Jr.?

The mother of the minor Santos, Jr., is working in the United States while the father, Santos, Sr., is present. Not only are they physically apart but are also emotionally separated. There has been no decree of legal separation and Santos’s attempt to obtain an annulment of the marriage on the ground of psychological incapacity of his wife has failed.

2. According to Santos, the CA erred in awarding custody of the boy to his grandparents and not to himself. He contends that since the Bedias have failed to show that he was an unfit and unsuitable father, substitute parental authority granted to the boy’s grandparents under Art. 214 of the Family Code was inappropriate.

Santos added that the reasons relied upon by the Bedias in having custody over the boy, were flimsy and insufficient to deprive him of his natural and legal right to have custody.

3. On the other hand, the Bedias claimed that they could provide an air-conditioned room for the boy and that Santos would not be in a position to take care of his son since he has to be assigned to different places. They also allege that Santos did not give a single centavo for the boy’s support and maintenance. When the boy was about to be released from the hospital, they were the ones who paid the fees because their daughter and Santos had no money. Besides, Julia Bedia Santos, their daughter, had entrusted the boy to them before she left for the United States. Furthermore, Santos’s use of trickery and deceit in abducting the child in 1990, after being hospitably treated by them, did not speak well of his fitness and suitability as a parent.

The Bedias argued that although the law recognizes the right of a parent to his child’s custody, ultimately the primary consideration was what was best for the happiness and welfare of the latter. As maternal grandparents who have amply demonstrated their love and affection for the boy since his infancy, they claimed to be in the best position to promote the child’s welfare.

The decision of the Supreme Court: the natural love of a parent outweighs that of the grandparents

1. The right of custody accorded to parents springs from the exercise of parental authority. Parental authority or “patria potestas” in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter’s needs.

It is a mass of rights and obligations which the law grants to parents for the purpose of the children’s physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses. As regards parental authority, “there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor.”

2. Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children's home or an orphan institution.

When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same.

The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody and company.

3. The child’s welfare is always the paramount consideration in all questions concerning his care and custody.

4. The law vests on the father and mother joint parental authority over the persons of their common children. In case of absence or death of either parent, the parent present shall continue exercising parental authority.

5. Only in case of the parents’ death, absence or unsuitability may substitute parental authority be exercised by the surviving grandparent.

6. Santos has not been shown to be an unsuitable and unfit parent. The Bedias’ demonstrated love and affection for the boy, notwithstanding, the legitimate father is still preferred over the grandparents. The latter’s wealth is not a deciding factor, particularly because there is no proof that Santos is in no position to support the boy. The fact that he was unable to provide financial support for his minor son from birth up to over three years when he took the boy from his in-laws without permission, should not be sufficient reason to strip him of his permanent right to the child’s custody.

7. While Santos’s previous inattention is inexcusable and merits only the severest criticism, it cannot be construed as abandonment. His appeal of the unfavorable decision against him and his efforts to keep his only child in his custody may be regarded as serious efforts to rectify his past misdeeds. To award him custody would help enhance the bond between parent and son. It would also give the father a chance to prove his love for his son and for the son to experience the warmth and support which a father can give.

8. His being a soldier is likewise no bar to allowing him custody over the boy. So many men in uniform who are assigned to different parts of the country in the service of the nation, are still the natural guardians of their children. It is not just to deprive our soldiers of authority, care and custody over their children merely because of the normal consequences of their duties and assignments, such as temporary separation from their families.

9. Santos’s employment of trickery in spiriting away his boy from his in-laws, though unjustifiable, is likewise not a ground to wrest custody from him.

10. The attachment of the Bedias to the young boy whom they have reared for the past three years is understandable. Still and all, the law considers the natural love of a parent to outweigh that of the grandparents, such that only when the parent present is shown to be unfit or unsuitable may the grandparents exercise substitute parental authority, a fact which has not been proven here.

The strong bonds of love and affection possessed by the Bedias as grandparents should not be seen as incompatible with Santos’s right to custody over the child as a father.

Related cases and issues

1. If the grandparents have, by force or stealth, taken away the grandchild, how can the father or mother regain custody?

The Supreme Court ruled in Tijing vs. Court of Appeals G.R. No. 125901, March 8, 2001 that the parent who wants to regain custody can file a petition for a writ of habeas corpus.

The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. Thus, it is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of his own free will. It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose of determining the right of custody over a child.

Please read “Rule On Custody Of Minors And Writ Of Habeas Corpus In Relation To Custody Of Minors.”

2. If the mother of an illegitimate child dies, who will exercise parental authority?

An OFW from the Middle East e-mailed me asking about his right to his illegitimate children since the mother has died. He said that he wants custody of his children, but the maternal grandparents refuse to let the children be with him.

Article 212 of the Family Code states: “In case of absence or death of either parent, the parent present shall continue exercising parental authority.”

I stand to be corrected, but I do not think that Article 212 applies in this situation. Notice that it says “the parent present shall continue exercising parental authority.” But under Article 176 of the Family Code, sole parental authority belongs to the mother. The biological father does not have any parental authority, and so, in case of the mother’s death, what parental authority can he “continue” to exercise?

I think Article 214 of the Family Code provides a possible answer. It says:

In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.

The question is which grandparents – the maternal grandparents or the paternal grandparents? Again based on Article 176, I will say that it is the grandparents on the illegitimate child’s mother side who should exercise parental authority.

In the situation of that OFW I told you about above, he can of course file a petition in court for parental authority to be granted to him. He can file a petition to this effect or file for adoption of his illegitimate children under RA 8552. Either way, if the court grants his petition, he will have parental authority over his children.

3. The father's visitation right over an illegitimate child is personal to him; it cannot be exercised by others, such as the child's grandparents.

I have previously discussed the issue of visitation rights a father over has over his illegitimate child. You can download my free PDF newsletter Issue no. 008 September 30, 2008 on this topic.

The problem is that a lot of times, the father himself does not want to have anything to do with his child. The persons who want to spend time with the child are the grandparents. The father’s visitation right is personal to him. Thus, if the court has granted the terms and conditions of his visitation, once he leaves the country (to work, for example), his visitation right cannot be exercised by other parties, like the grandparents.

4. Vancil vs. Belmes G.R. No. 132223, June 19, 2001

Bonifacia Vancil (“Bonifacia” for brevity), a US citizen, is the mother of Reeder C. Vancil, a Navy serviceman of the United States of America who died in the said country on December 22, 1986. During his lifetime, Reeder had two children named Valerie and Vincent by his common-law wife, Helen G. Belmes (“Helen” for brevity). Bonifacia obtained a favorable court decision appointing her as legal and judicial guardian over the persons and estate of Valerie Vancil and Vincent Vancil Jr. She alleged that Helen was morally unfit as guardian of Valerie considering that Helen’s live-in partner raped Valerie several times.

Since Valerie had reached the age of majority at the time the case reached the Supreme Court, the issue revolved around the guardianship of Vincent.

The Supreme Court ruled that Bonifacia, as the surviving grandparent, can exercise substitute parental authority only in case of death, absence or unsuitability of Helen. Considering that Helen is very much alive and has exercised continuously parental authority over Vincent, Bonifacia has to prove, in asserting her right to be the minor’s guardian, Helen’s unsuitability. Bonifacia, however, has not proffered convincing evidence showing that Helen is not suited to be the guardian of Vincent. Bonifacia merely insists that Helen is morally unfit as guardian of Valerie considering that her live-in partner raped Valerie several times. But Valerie, being now of major age, is no longer a subject of this guardianship proceeding.

Even assuming that Helen is unfit as guardian of minor Vincent, still Bonifacia cannot qualify as a substitute guardian. She is an American citizen and a resident of Colorado. Obviously, she will not be able to perform the responsibilities and obligations required of a guardian. In fact, in her petition, Bonifacia admitted the difficulty of discharging the duties of a guardian by an expatriate, like her. To be sure, she will merely delegate those duties to someone else who may not also qualify as a guardian.

5. Tonog vs. CA G.R. No. 122906, February 7, 2002

This case revolved around Gardin Faith, an illegitimate child. Article 176 of the Family Code states that sole parental authority belongs to the mother. In this case, the Supreme Court ruled that while the guardianship proceedings were ongoing at the trial court level, TEMPORARY custody of the child should be retained by the father. The child should not be wrenched from her familiar surroundings, and thrust into a strange environment away from the people and places to which she had apparently formed an attachment. Moreover, whether a mother is a fit parent for her child is a question of fact to be properly entertained in the special proceedings before the trial court.

RA 9262 and other cases involving women: where to ask for help

For RA 9262 and other cases involving women, you can ask for help from the following:

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

Philippine General Hospital (PGH) Women’s Desk Tel. Nos.: (02) 524-2990; 521-8450 loc. 3816

Women’s Crisis Center Women and Children Crisis Care & Protection Unit – East Avenue Medical Center (WCCCPU-EAMC) Tel. Nos.: (02) 926-7744; 922-5235

HB 6699: Child spanking soon outlawed in RP? Is spanking a Biblically-endorsed way of discipline?

(Note: Jump to the sections “Is spanking a Biblically-endorsed way of discipline?” and “Practical considerations: spanking in church-based schools”)

Article 45 of Presidential Decree No. 603 “The Child and Youth Welfare Code” states that parents have the right to discipline the child as may be necessary for the formation of his good character, and may therefore require from him obedience to just and reasonable rules, suggestions and admonitions.” This right to discipline includes corporal punishment which is moderate in degree.

But House Bill 6699 “The Anti-Corporal Punishment Act of 2009”, principally authored by Tarlac Rep. Monica Prieto-Teodoro (wife of Defense Secretary Gilberto Teodoro) intends to prohibit the use of physical force to reprimand children, and deems as illegal verbal assaults and placing children in degrading or humiliating situation to correct their behavior.

HB 6699 also covers corporal punishments in schools, institutions, youth detention centers, and the workplace. Penalties range from one month to six months imprisonment, or suspension of parental authority over the children. The bill is co-authored by 56 other representatives and is expected to be approved by Congress before the year ends.

HB 6699 identifies forms of corporal punishments as:

1. Use of physical force (hitting any part of the body, pinching, twisting joints, pulling of ears or hair, shaving of hair, dragging or throwing a child, or cutting or piercing the skin)
2. Forcing a child to perform physically painful or damaging act (holding weights with arms stretched, kneeling on stones, salt, or pebbles or squatting)
3. Deliberate neglect of a child’s physical needs (starving a child if he doesn’t want to eat vegetables)
4. Use of external substance to punish a child (putting hot pepper in the mouth when he curses, placing him in a container of water, or exposing him to smoke)
5. Use of hazardous tasks and punishments (sweeping in the rain or under the heat of the sun)
6. Confinement (being shut in a confined space, tied-up, or forced to remain in one place for an extended period of time)
7. Verbal assaults, threats, or intimidation

Rationale for the law

Rep. Prieto-Teodoro explained that although laws trying to protect children from violence are already in place, some of their provisions are unclear: “The present laws lack the explicit prohibition on the use of corporal punishment, especially in the home and family setting, except for children in conflict with the law and children in detention who are now adequately given protection and more humane treatment under the Juvenile Justice and Welfare Act”.

Statistics on child abuse

[1] Many of the children who experience verbal abuse show anxiety, lack of concentration, thoughts of rejection, and low self-esteem among others, according to a 2006 study, “Parental Verbal Abuse: Culture-Specific Coping Behavior of College Students in the Philippines.”

[2] A 2005 study by Save the Children showed that 85 percent of the children interviewed in cities of Caloocan and Cebu were being punished in the home, with spanking as the most common. Eighty-two percent said they were hit on different parts of the body.

[3] A recent data of Plan Philippines showed that 500 to 800 child abuses each year are committed by teachers.

[4] For more facts and statistics on child abuse, please surf to “Child Protection in the Philippines, Philippine Resource Network”. Though unofficial, this is the first website that features organizations in the Philippines, both state-run and non-governmental, that work on the issue of child protection. This is a project supported by the Arci Cultura E Sviluppo, Save the Children (UK) Philippines, and UNICEF Manila with the participation of 8 more organizations. This undertaking aims to present to the world the situation of abused children and the roles of these organizations in addressing the issues through the World Wide Web.

Proposed penalties under HB 6699

With the proposed Anti-Corporal Punishment Act, children or concerned individuals may directly file complaints with their barangays, police stations, or local offices of the Department of Social Welfare and Development.

Authorities are expected to file a case in the regional trial court, or if not conduct an investigation within 8 hours from the time they receive the complaint.

Violators may face a month of imprisonment or suspension of their parental authority over the children, depending on the penalties provided by existing laws to protect children. If the penalty is just a month of imprisonment, the court prosecutor may just order the offender to attend seminars on children’s rights, positive and non-violent discipline, and anger management. Six months of imprisonment await those who will be found guilty of offenses under HB 6699 that are not covered by laws like the Special Protection of Children Against Child Abuse, Exploitation, and Discrimination Act (Republic Act 7610) and Anti-Violence Against Women and Children Act (RA 9262).

Positive discipline: a proposed alternative to spanking

Child rights advocates say that, instead of spanking, parents and other individuals responsible with a child should practice positive discipline. Wilma Banaga of Plan Philippines said “positive discipline” involves:

• Identifying the values and life skills that they want the child to adopt.
• Expressing affection and support (a hug, a pat on the back, or appreciating their accomplishments), but at the same time giving clear guidelines for their behavior.
• Understanding how children think and feel.
• Discussing the problem with the child and identify effective approaches to solve it.
• Listening carefully and helping children learn the use of words to express their feelings.
• Giving children quality time.
• Becoming a good example on how to react when faced by undesirable situations.

The Child Rights Information Network provides a 2.1 MB, 356 pages long PDF download from Dr. Joan E. Durant on what positive discipline is all about. CRN also provides “A to Z of child rights” available in English, Arabic, Spanish, French and Russian.

United Nations Convention on the Rights of the Child

The UN Convention on the Rights of the Child, often referred to as CRC or UNCRC, is an international convention setting out the civil, political, economic, social and cultural rights of children. Nations that ratify this international convention are bound to it by international law. Compliance is monitored by the United Nations Committee on the Rights of the Child which is composed of members from countries around the world. Once a year, the Committee submits a report to the Third Committee of the United Nations General Assembly, which also hears a statement from the CRC Chair, and the Assembly adopts a Resolution on the Rights of the Child. (from Wikipedia)

The United Nations Committee on the Rights of the Child defined corporal (from the root word corpus, referring to body) as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. However, other forms of punishment may also be considered corporal punishment even if they re not physical in nature. They are word and actions that belittle, humiliate, denigrate, threaten, scare or ridicule the child.

The UNICEF website provides photo essay on the “Rights of the Child” (Part I and Part 2). It also provides a helpful article “Definition of key terms” and a PDF download of children’s rights.

Is spanking a Biblically-endorsed way of discipline?

The following points must be clearly established and emphasized:
[1] I am strongly opposed to violence or abuse against children. Fundamentalist and evangelical Christian parents who do believe in spanking would also affirm that they are opposed to violence or abuse against children.

[2] “Spanking” understood and implemented correctly is a form of loving discipline that the Bible endorses.

Dr. James Dobson of “Focus on the Family” has ably and eloquently articulated the bases for spanking as a form of loving discipline in his books “The New Dare to Discipline” (read a sample chapter) and “The New Strong-Willed Child” (read a sample chapter).

Dobson’s three concepts on Biblical discipline are:

(1) The authority of parents is endorsed;

(2) Discipline is in the best interest of children;

(3) Discipline must not be harsh and destructive to the child’s spirit.

In his printable article titled “Approaches to Discipline”, Dobson discusses issues such as Does Spanking Work for All Kids?; To Spank or Not to Spank; When Kids Run You Over; Handling Disrespect; and Behavior and Consequences.

Related issues which Dobson discusses in his website are:

• Effective Biblical Discipline
• Why Kids Misbehave
• The Strong-Willed Child
• What is the most common error made by parents in disciplining their children?
• Should I discipline my child for every little thing he does wrong?
• How do you discipline a difficult teen?
• At what age should discipline begin?
• Should parents with abusive tendencies avoid corporal punishment?
• What specific Scripture verses do you base your views of discipline on?
• Is it healthy to spank a child?

Practical considerations; spanking in church-based schools

1. What should our stand be towards HB 6699? While we believe in spanking as a Biblical form of discipline, fundamentalist and evangelical Christians must also take a strong stand opposing violence and abuse against children.

Instead of a complete repeal, Article 45 of Presidential Decree No. 603 “The Child and Youth Welfare Code” allowing corporal punishments as long as these are “just and reasonable” and “moderate in degree” must be clarified or fine tuned instead.

2. Churches, numbering perhaps in the hundreds, have established schools based on the School of Tomorrow program. As I have been told by several school administrators, part of the SOT’s requirements is that parents must sign a document allowing teachers to spank misbehaving children. On the contrary, someone who claimed to be an SOT consultant told me that such is not a requirement of the SOT and that it is up to the schools to ask parents to allow the spanking of their children by the teachers.

(As you can read, my information on this matter is second hand. I would appreciate any correction from the SOT, school administrators and the parents.)

In the legal seminars I have given for churches and groups of pastors, people have always raised the issue of this alleged SOT requirement. I have always replied by pointing out Article 233 of the Family Code (take note especially of the second paragraph) which states:

The person exercising substitute parental authority shall have the same authority over the person of the child as the parents.

In no case shall the school administrator, teacher or individual engaged in child care exercising special parental authority inflict corporal punishment upon the child.
(emphasis by boldfacing supplied)

The phrase “in no case” means that even with the SOT document signed by the parents, teachers are not allowed to spank the students. I have always said that if the students needed to be spanked, the school administrators should call the parents who will do the spanking themselves.

3. Have the provisions of the Family Code on parental authority, specifically Articles 209 to 233, already repealed Article 45 of Presidential Decree No. 603 “The Child and Youth Welfare Code”? These articles do not mention anything about the right of parents to discipline their children as PD 603 provides. Large portions of PD 603 have been repealed or modified by the Family Code of the Philippines and numerous other laws. In our legal system, however, implied repeals are frowned upon and therefore, it can be argued that Article 45 of Presidential Decree No. 603 is still good law.

If a wife gets pregnant by a man not her husband, will the child be legitimate or illegitimate?

Summary: How does a wife get pregnant by a man who is not her husband? What will be the status of the child? Situation 1: By artificial insemination; if the wife and her husband complied with the 2nd paragraph of Article 164 of the Family Code, then the child is legitimate. Situation 2: By sexual intercourse in a one-night stand or a live-in relationship while the marriage is subsisting; the child, however, is considered the legitimate child of the wife and her husband because of Article 164 of the Family Code (“children conceived or born during the marriage of the parents are legitimate”) and Article 167 (“the child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress”). Situation 2 creates a big legal mess for the physically separated wife and husband. The wife no longer wants to have anything to do with her husband, but the child is presumed to be legitimate. What surname will she use in the child’s birth certificate? If she uses the biological father’s surname, this can be used as evidence by her husband in filing a case of adultery against her and the biological father. If she informs the Local Civil Registrar that she is physically separated from her husband, the LCR will not allow her to register the child under the biological father’s surname because of Articles 164 and 167 of the Family Code. She can claim that she is single and then either leave the entry for the name of the father blank or use the biological father’s name; in this situation, she can potentially be charged with perjury. If she uses her husband’s surname for the child, her husband can file a case of damages against her. Whatever the wife does with the child’s birth certificate, there are adverse legal and practical consequences. On the other hand, if the husband fails to comply with the periods stated in Article 170, then he (or his heirs) can no longer question the legitimacy of the child. The child will be entitled to inherit from him. For children who may have been born in this kind of situation, they will find themselves in a limbo: they are legitimate from the legal point of view but are illegitimate biologically.

Most of you will probably say that of course, the child will be illegitimate. But I wish to discuss here several issues that give us a different answer:

1. Conception as a result of artificial insemination

2. Presumption of legitimacy of a child born during the marriage of the parents

3. Ways legitimacy can be impugned or questioned

4. DNA testing to prove legitimacy or illegitimacy

Conception as a result of artificial insemination

The 2nd paragraph of Article 164 of the Family Code states:

Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child.

Artificial insemination can either be AIH (artificial insemination by husband) or AID (artificial insemination by donor). Both husband and wife must have given their consent in a written document recorded with the Local Civil Registrar’s office. Firstly, I find it difficult to conceive, pardon the pun, of a woman being subjected to artificial insemination against her consent or willing participation. Secondly, if it is AIH, why would a written and recorded document still be necessary?

Why would couples resort to artificial insemination? Please take time to read the following articles by Sandra Glahn:

• Infertility: Myths and Facts
• A Heart's Desire: Encouragement for Couples Facing Infertility
• Infertility Tries Patients' Patience
• Facing the No-Baby Blues

Presumption of legitimacy of a child born during the marriage of the parents

The first paragraph of Article 164 of the Family Code states that “children conceived or born during the marriage of the parents are legitimate.” This presumption can be disputed; Article 166 provides the grounds for questioning the legitimacy of a child. This presumption on legitimacy can however become conclusive as the Supreme Court explained in the case of Dizon vs. De Jesus G.R. No. 142877, October 2, 2001:

There is perhaps no presumption of the law more firmly established and founded on sounder morality and more convincing reason than the presumption that children born in wedlock are legitimate. This presumption indeed becomes conclusive in the absence of proof that there is physical impossibility of access between the spouses during the first 120 days of the 300 days which immediately precedes the birth of the child due to (a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife are living separately in such a way that sexual intercourse is not possible; or (c) serious illness of the husband, which absolutely prevents sexual intercourse.

The child is considered legitimate even though the mother has been convicted of adultery

The law favors the legitimacy of the child as Article 164 provides. Moreover, Article 167 provides that “the child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.”

The law favors the legitimacy of a child

Please read carefully the 2005 Supreme Court decision in the case of “Gerardo Concepcion vs. Court of Appeals and Ma. Theresa Almonte.” In this case, Gerardo filed a case for declaration of nullity of his marriage to Theresa on the ground that their marriage was bigamous. Theresa was already married to a certain Mario when they got married (and Mario was still alive and living in Quezon City.) As a result, the trial court declared their son Jose Gerardo to be an illegitimate child. When the trial court denied Theresa’s motion to have Jose Gerardo’s surname changed to her maiden surname, she brought the case up to the Court of Appeals.

The CA ruled, to the shock of both Gerardo and Theresa, that Jose Gerardo was not the son of Ma. Theresa by Gerardo but by Mario during her first marriage. The CA ruling, later on affirmed by the Supreme Court, declared that every presumption must be in favor of legitimacy. The Supreme Court ruled that

During the period that Gerardo and Ma. Theresa were living together in Fairview, Quezon City, Mario was living in Loyola Heights which is also in Quezon City. Fairview and Loyola Heights are only a scant four kilometers apart.

Not only did both Ma. Theresa and Mario reside in the same city but also that no evidence at all was presented to disprove personal access between them. Considering these circumstances, the separation between Ma. Theresa and her lawful husband, Mario, was certainly not such as to make it physically impossible for them to engage in the marital act.

Sexual union between spouses is assumed. Evidence sufficient to defeat the assumption should be presented by him who asserts the contrary. There is no such evidence here. Thus, the presumption of legitimacy in favor of Jose Gerardo, as the issue of the marriage between Ma. Theresa and Mario, stands.

The Supreme Court ruled that it was only Mario (the first husband) or in the proper case, his heirs, who could question the legitimacy.

Ways by which legitimacy can be questioned

Article 166 of the Family Code provides the ways by which legitimacy can be impugned or questioned:

(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.

Periods within which to question legitimacy

Article 170 provides for certain periods within which the husband can question the legitimacy of the child:

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.

Briefly, the period is one year from the birth of the child if the husband or his heirs live in the same town or city where the child was born. The period is two years if the husband or his heirs if they reside elsewhere in the Philippines. The period is three years if the husband or his heirs are living abroad.

Article 171 provides for the grounds whereby the husband’s heirs can question the legitimacy of the child:

The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases:

(1) If the husband should die before the expiration of the period fixed for bringing his action;

(2) If he should die after the filing of the complaint without having desisted therefrom; or

(3) If the child was born after the death of the husband.

Can the action to question the legitimacy of a child be filed beyond the periods provided by Article 170? This question was raised in the 2000 case of “Teofista Babiera, petitioner, vs. Presentacion B. Catotal, respondent.” The Supreme Court clarified that:

1. Articles 170 and 171 of the Family Code apply to instances in which the father impugns the legitimacy of his wife’s child. The provisions, however, presuppose that the child was the undisputed offspring of the mother.

2. These articles govern a situation where a husband (or his heirs) denies as his own a child of his wife. These articles do not contemplate a situation where a child is alleged not to be the child of nature or biological child of a certain couple.

DNA testing to prove legitimacy or illegitimacy; the need to amend Articles 170 and 171 of the Family Code

What these provisions of the FC are saying is that if the period (one, two or three years) has already passed, the husband or his heirs can no longer question the legitimacy of the child. These periods provided by the Family Code, as far as I can recall, were taken verbatim from the New Civil Code of the Philippines. The NCC became effective in 1949 while the Family Code became effective in 1998. As far as I can recall from my Persons and Family relations class in MLQU in 1987-88, these periods were provided because of the fickleness of human memory.

Today, however, DNA testing can very easily determine the paternity of children. This is one area where the Family Code has not kept pace with technology. Perhaps our senators and congressmen can modify Article 170 of the Family Code so that any father who wants to question the legitimacy of a child can do so even beyond these periods. Please read my post “DNA testing to prove legitimacy or illegitimacy of children; Supreme Court’s New Rule on DNA Evidence.”

Republic Act No. 9485 Anti-Red Tape Act of 2007

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RA 9485 became effective June 02, 2007 and its Implementing Rules and Regulations were released last year. The law will become fully effective this September 2009. Among the highlights of this law are (1) limitation of signatories required for any document to only five; (2) limit of five days for simple transactions and ten days for complex transactions; (3) automatic renewal of licenses and permits if not acted upon within the prescribed period; and (4) prohibition against irrelevant requirements. Posted below is a primer on this law.

What is the policy of the State with regards accountability, proper management of public affairs and public property?

SEC. 2. Declaration of Policy. - It is hereby declared the policy of the State to promote integrity, accountability, proper management of public affairs and public property as well as to establish effective practices aimed at the prevention of graft and corruption in government. Towards this end, the State shall maintain honesty and responsibility among its public officials and employees, and shall take appropriate measures to promote transparency in each agency with regard to the manner of transacting with the public, which shall encompass a program for the adoption of simplified procedures that will reduce red tape and expedite transactions in government.

What government offices and agencies does RA 9485 cover?

SEC. 3. Coverage. - This Act shall apply to all government offices and agencies including local government units and government-owned or -controlled corporations that provide frontline services as defined in this Act. Those performing judicial, quasi-judicial and legislative functions are excluded from the coverage of this Act.

What are considered simple transactions?

"Simple Transactions" refer to requests or applications submitted by clients of a government office or agency which only require ministerial actions on the part of the public officer or employee, or that which present only inconsequential issues for the resolution by an officer or employee of said government office.

What are considered complex transactions?

"Complex Transactions" refer to requests or applications submitted by clients of a government office which necessitate the use of discretion in the resolution of complicated issues by an officer or employee of said government office, such transaction to be determined by the office concerned.

What are frontline services?

"Frontline Service" refers to the process or transaction between clients and government offices or agencies involving applications for any privilege, right, permit, reward, license, concession, or for any modification, renewal or extension of the enumerated applications and/or requests which are acted upon in the ordinary course of business of the agency or office concerned.

What does action mean?

"Action" refers to the written approval or disapproval made by a government office or agency on the application or request submitted by a client for processing.

Who are officers or employees?

"Officer or Employee" refers to a person employed in a government office or agency required to perform specific duties and responsibilities related to the application or request submitted by a client for processing.

What are irrelevant requirements?

"Irrevelant requirement" refer to any document or performance of an act not directly material to the resolution of the issues raised in the request or needed in the application submitted by the client.

Who are considered as fixers?

"Fixer" refers to any individual whether or not officially involved in the operation of a government office or agency who has access to people working therein, and whether or not in collusion with them, facilitates speedy completion of transactions for pecuniary gain or any other advantage or consideration.

What is reengineering of systems and procedures under RA 9485?

SEC. 5 Reengineering of Systems and Procedures. - All offices and agencies which provide frontline services are hereby mandated to regularly undertake time and motion studies, undergo evaluation and improvement of their transaction systems and procedures and re-engineer the same if deemed necessary to reduce bureaucratic red tape and processing time.

What is the Citizen's Charter?

SEC. 6. Citizen's Charter. - All government agencies including departments, bureaus, offices, instrumentalities, or government-owned and/or controlled corporations, or local government or district units shall set up their respective service standards to be known as the Citizen's Charter in the form of information billboards which should be posted at the main entrance of offices or at the most conspicuous place, and in the form of published materials written either in English, Filipino, or in the local dialect, that detail:

(a) The procedure to obtain a particular service;
(b) The person/s responsible for each step;
(c) The maximum time to conclude the process;
(d) The document/s to be presented by the customer, if necessary;
(e) The amount of fees, if necessary; and
(f) The procedure for filing complaints.

Who is responsible for the implementation of RA 9485?

SEC. 7. Accountability of the Heads of Offices and Agencies. - The head of the office or agency shall be primarily responsible for the implementation of this Act and shall be held accountable to the public in rendering fast, efficient, convenient and reliable service. All transactions and processes are deemed to have been made with the permission or clearance from the highest authority having jurisdiction over the government office or agency concerned.

What are the procedures for the accessing frontline services?

SEC. 8. Accessing Frontline Services. - The following shall be adopted by all government offices and agencies:

(a) Acceptance of Applications and Request -

(1) All officers or employees shall accept written applications, requests, and/or documents being submitted by clients of the office or agencies.

(2) The responsible officer or employee shall acknowledge receipt of such application and/or request by writing or printing clearly thereon his/her name, the unit where he/she is connected with, and the time and date of receipt.

(3) The receiving officer or employee shall perform a preliminary assessment of the request so as to promote a more expeditious action on requests.

(b) Action of Offices -

(1) All applications and/or requests submitted shall be acted upon by the assigned officer or employee during the period stated in the Citizen's Charter which shall not be longer than five working days in the case of simple transactions and ten (10) working days in the case of complex transactions from the date the request or application was received. Depending on the nature of the frontline services requested or the mandate of the office or agency under unusual circumstances, the maximum time prescribed above may be extended. For the extension due to nature of frontline services or the mandate of the office or agency concerned the period for the delivery of frontline services shall be indicated in the Citizen's Charter. The office or agency concerned shall notify the requesting party in writing of the reason for the extension and the final date of release for the extension and the final date of release of the frontline service/s requested.

(2) No application or request shall be returned to the client without appropriate action. In case an application or request is disapproved, the officer or employee who rendered the decision shall send a formal notice to the client within five working days from the receipt of the request and/or application, stating therein the reason for the disapproval including a list of specific requirement/s which the client failed to submit.

(c) Denial of Request for Access to Government Service - Any denial of request for access to government service shall be fully explained in writing, stating the name of the person making the denial and the grounds upon which such denial is based. Any denial of request is deemed to have been made with the permission or clearance from the highest authority having jurisdiction over the government office or agency concerned.

(d) Limitation of Signatories - The number of signatories in any document shall be limited to a maximum of five signatures which shall represent officers directly supervising the office or agency concerned.

(e) Adoption of Working Schedules to Serve Clients - Heads of offices and agencies which render frontline services shall adopt appropriate working schedules to ensure that all clients who are within their premises prior to the end of official working hours are attended to and served even during lunch break and after regular working hours.

(f) Identification Card - All employees transacting with the public shall be provided with an official identification card which should be visibly worn during office hours.

(g) Establishment of Public Assistance/Complaints Desk - Each office or agency shall establish a public assistance/complaints desk in all their offices.

What is automatic extension of permits and licenses?

SEC. 9. Automatic Extension of Permits and Licenses. - If a government office or agency fails to act on an application and/or request for renewal of a license, permit or authority subject for renewal within the prescribed period, said permit, license or authority shall automatically be extended until a decision or resolution is rendered on the application for renewal: Provided, That the automatic extension shall not apply when the permit, license, or authority covers activities which pose danger to public health, public safety, public morals or to public policy including, but not limited to, natural resource extraction activities.

What is the Report Card Survey?

SEC. 10. Report Card Survey. - All offices and agencies providing frontline services shall be subjected to a Report Card Survey to be initiated by the Civil Service Commission, in coordination with the Development Academy of the Philippines, which shall be used to obtain feedback on how provisions in the Citizen's Charter are being followed and how the agency is performing.

The Report Card Survey shall also be used to obtain information and/or estimates of hidden costs incurred by clients to access frontline services which may include, but is not limited to, bribes and payment to fixers.

A feedback mechanism shall be established in all agencies covered by this Act and the results thereof shall be incorporated in their annual report.

What are considered as violations of RA 9485 and their penalties?

SEC. 11. Violations. - After compliance with the substantive and procedural due process, the following shall constitute violations of this Act together with their corresponding penalties:

(a) Light Offense -

(1) Refusal to accept application and/or request within the prescribed period or any document being submitted by a client;

(2) Failure to act on an application and/or request or failure to refer back to the client a request which cannot be acted upon due to lack of requirement/s within the prescribed period;

(3) Failure to attend to clients who are within the premises of the office or agency concerned prior to the end of official working hours and during lunch

(4) Failure to render frontline services within the prescribed period on any application and/or request without due cause;

(5) Failure to give the client a written notice on the disapproval of an application or request; and

(6) Imposition of additional irrelevant requirements other than those listed in the first notice.

Penalties for light offense shall be as follows:

First Offense - Thirty (30) days suspension without pay and mandatory attendance in Values Orientation Program;

Second Offense - Three (3) months suspension without pay; and

Third Offense - Dismissal and perpetual disqualification from public service.

(b) Grave Offense - Fixing and/or collusion with fixers in consideration of economic and/or other gain or advantage.

Penalty - Dismissal and perpetual disqualification from public service.

What is the criminal liability for fixers?

SEC. 12. Criminal Liability for Fixers. - In addition to Sec. 11 (b), fixers, as defined in this Act, shall suffer the penalty of imprisonment not exceeding six years or a fine not less than Twenty Thousand Pesos (P20,000.00) but not more than Two Hundred Thousand Pesos (P200,000.00) or both fine and imprisonment at the discretion of the court.

Can a government employee found guilty of an administrative offense under RA 9485 also be charged in a civil or criminal case?

SEC. 13. Civil and Criminal Liability, Not Barred. - The finding of administrative liability under this Act shall not be a bar to the filing of criminal, civil or other related charges under existing laws arising from the same act or omission as herein enumerated.

Which government agency has jurisdiction under RA 9485?

SEC. 14. Administrative Jurisdiction. - The administrative jurisdiction on any violation of the provisions of this Act shall be vested in either the Civil Service Commission (CSC), the Presidential Anti-Graft Commission (PAGC) or the Office of the Ombudsman as determined by appropriate laws and issuances.

Can a government employee or official charged in a violation of RA 9485 become a State witness?

SEC. 15. Immunity; Discharge of Co-Respondent/Accused to be a Witness. - Any public official or employee or any person having been charged with another under this Act and who voluntarily gives information pertaining to an investigation or who willingly testifies therefore, shall be exempt from prosecution in the case/s where his/her information and testimony are given. The discharge may be granted and directed by the investigating body or court upon the application or petition of any of the respondent/accused-informant and before the termination of the investigation: Provided, That:

(a) There is absolute necessity for the testimony of the respondent/accused-informant whose discharge is requested;

(b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said respondent/accused-informant;

(c) The testimony of said respondent/accused-informant can be substantially corroborated in its material points;

(d) The respondent/accused-informant has not been previously convicted of a crime involving moral turpitude; and

(e) Said respondent/accused-informant does not appear to be the most guilty.

Evidence adduced in support of the discharge shall automatically form part of the records of the investigation. Should the investigating body or court deny the motion or request for discharge as a witness, his/her sworn statement shall be inadmissible as evidence.

Katrina Halili and Hayden Kho scandal: being under the influence of alcohol or drugs is a prohibited defense under RA 9262

For the past two weeks, the country has been gripped by news stories (print, radio, television, the Web) on the sordid details of the Katrina Halili and Hayden Kho scandal. Someone has accurately described this kind of news coverage and its effect on society as the “tabloidization of Philippine culture.” Even our Senate has jumped into the bandwagon by conducting hearings in “aid of legislation” on this issue. (It was actually Sen. Bong Revilla who started this all.)

Prohibited defense under RA 9262

What’s amazing is that some people like lawyers of the opposing parties, some senators and government officials, people in media, etc. do not know what Republic Act No. 9262 “Anti-Violence Against Women and Their Children Act of 2004” provides. People are discussing the issue of Hayden Kho’s alleged use of drugs at the time the sex videos were made. It seems that this alleged use of illegal drugs is being floated as Hayden Kho’s possible defense against Katrina Halili’s complaints. Some people are discussing habituality and aggravating circumstance in the alleged use of drugs.

Section 27 of RA 9262 expressly provides that “being under the influence of alcohol, any illicit drug, or any other mind-altering substance” is a prohibited defense. Simply stated, any man accused of violating RA 9262 cannot use as a defense that he was under the influence of alcohol or of drugs when he committed the act of violence against the woman.

“Persona non grata” resolutions against Hayden

Some local government units are also jumping onto the bandwagon by passing resolutions declaring Hayden Kho as “persona non grata” in their town or city. Meaning, Hayden is not welcome and cannot set foot in their town or city. (If I remember correctly, a female comedian was recently declared “persona non grata” by the City of Baguio for her insulting remarks against Igorots.)

Haven’t these LGUs been advised about the landmark 1919 ruling of the Supreme Court in the case of Villavicencio vs. Lukban? Our local government officials should also read the 1987 Constitution and its provisions on the freedom of mobility.

Do these LGUs really think that they can validly and legally enforce these resolutions against Hayden (or anyone for that matter)? One senator said last night that every town and city in the Philippines should pass these “persona non grata” resolutions against Hayden. Let me use some “argumentum ad absurdum” in discussing this issue. If indeed every town and city passed this kind of a resolution agaunst Hayden, does this mean that he can no linger live in the Philippines?

The only legal way a person can be prohibited from residing in a specific place is when a woman has been convicted in a concubinage case. This is the penalty of destierro imposed on the mistress. Please read my post on “Adultery, concubinage and psychological violence” (look for the link in the sidebar), the comments and my replies to the comments.

Lest I be misunderstood in my discussion about these “persona non grata” resolutions, let me state that I am not condoning in any way Hayden Kho’s actions. I just want to point out some silly, misinformed ideas and legally-defective arguments floating around this sordid Katrina Halili and Hayden Kho scandal.

Philippine law on household helpers; pending bills “Batas Kasambahay” or “Magna Carta for Household Helpers”

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There are more than six hundred thousand household helpers in the Philippines. And yet only a few families who employ household helpers know that the Philippines has laws (and pending bills) on the employment of househelpers. Our current laws for house helpers are Articles 141 up to 152 of the Labor Code of the Philippines. The said articles state:

Employment of Househelpers

Art. 141. Coverage. This Chapter shall apply to all persons rendering services in households for compensation.

“Domestic or household service” shall mean service in the employer's home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employer's household, including services of family drivers.

Art. 142. Contract of domestic service. The original contract of domestic service shall not last for more than two (2) years but it may be renewed for such periods as may be agreed upon by the parties.

Art. 143. Minimum wage.

Househelpers shall be paid the following minimum wage rates:

Eight hundred pesos (P800.00) a month for househelpers in Manila, Quezon, Pasay, and Caloocan cities and municipalities of Makati, San Juan, Mandaluyong, Muntinlupa, Navotas, Malabon, Parañaque, Las Piñas, Pasig, Marikina, Valenzuela, Taguig and Pateros in Metro Manila and in highly urbanized cities;

Six hundred fifty pesos (P650.00) a month for those in other chartered cities and first-class municipalities; and

Five hundred fifty pesos (P550.00) a month for those in other municipalities.

Provided, That the employers shall review the employment contracts of their househelpers every three (3) years with the end in view of improving the terms and conditions thereof.

Provided, further, That those househelpers who are receiving at least One thousand pesos (P1,000.00) shall be covered by the Social Security System (SSS) and be entitled to all the benefits provided thereunder. (As amended by Republic Act No. 7655, August 19, 1993)

Art. 144. Minimum cash wage. The minimum wage rates prescribed under this Chapter shall be the basic cash wages which shall be paid to the househelpers in addition to lodging, food and medical attendance.

Art. 145. Assignment to non-household work. No househelper shall be assigned to work in a commercial, industrial or agricultural enterprise at a wage or salary rate lower than that provided for agricultural or non-agricultural workers as prescribed herein.

Art. 146. Opportunity for education. If the househelper is under the age of eighteen (18) years, the employer shall give him or her an opportunity for at least elementary education. The cost of education shall be part of the househelper's compensation, unless there is a stipulation to the contrary.

Art. 147. Treatment of househelpers. The employer shall treat the househelper in a just and humane manner. In no case shall physical violence be used upon the househelper.

Art. 148. Board, lodging, and medical attendance. The employer shall furnish the househelper, free of charge, suitable and sanitary living quarters as well as adequate food and medical attendance.

Art. 149. Indemnity for unjust termination of services. If the period of household service is fixed, neither the employer nor the househelper may terminate the contract before the expiration of the term, except for a just cause. If the househelper is unjustly dismissed, he or she shall be paid the compensation already earned plus that for fifteen (15) days by way of indemnity.

If the househelper leaves without justifiable reason, he or she shall forfeit any unpaid salary due him or her not exceeding fifteen (15) days.

Art. 150. Service of termination notice. If the duration of the household service is not determined either in stipulation or by the nature of the service, the employer or the househelper may give notice to put an end to the relationship five (5) days before the intended termination of the service.

Art. 151. Employment certification. Upon the severance of the household service relation, the employer shall give the househelper a written statement of the nature and duration of the service and his or her efficiency and conduct as househelper.

Art. 152. Employment record. The employer may keep such records as he may deem necessary to reflect the actual terms and conditions of employment of his househelper, which the latter shall authenticate by signature or thumbmark upon request of the employer.

Pending Senate bills: “Batas Kasambahay” or “Magna Carta for Household Helpers”

Several bills aimed at improving the lot of household helpers are pending in the Senate, namely:

[1] SBN-1631: Magna Carta of Household Helpers' or 'Batas Kasambahay'

An Act Providing for the Magna Carta of Household Helpers Filed on September 20, 2007 by Miriam Defensor-Santiago

[2] SBN-1141: Magna Carta of Household Helpers

An Act Instituting Policies Governing the Household Employment Industry, Establishing a Standard of Protection and Promoting the Welfare of Household Helpers Filed on July 4, 2007 by Aquilino Q. Pimentel Jr.

[3] SBN-77: Magna Carta of Household Helpers (Batas Kasambahay)

An Act Instituting Regulatory Policies for the Household Employment Industry, Establishing Standards of Protection and Promotion of Their Welfare and of Their Families, Amending for the... Filed on June 30, 2007 by Loren B. Legarda

Sen. Many Villar has also filed Senate Bill 2275 seeking to increase the minimum wage to P1,200 in Metro Manila; P950 in chartered cities and first-class municipalities; and P750 in other municipalities.

Features of Loren’s bill

Under the proposed Magna Carta for Household Helpers, authored by Sen. Loren Legarda, all domestic staff would be expressly guaranteed the right to just and humane working as well as living conditions, among other freedoms.

Notarized job contract

The bill mandates that a notarized job contract would have to be executed by and between the employer and househelper before the start of any service. This would cover the specific job terms and conditions, including a provision for annual pay increases, indicating the amount mutually agreed and fixed by the parties.

13th month pay, Philhealth coverage

Under the bill, all househelpers would be entitled to statutory pay rates, a 13th month pay equal to one month's salary and mandatory coverage by the Philippine Health Insurance Corp. (Philhealth), on top of existing protection by the Social Security System (SSS).

10 hours of work maximum per day

Househelpers would enjoy normal work hours not exceeding 10 hours every day. Any work they perform in excess would have to be paid extra. They would be entitled to at least eight hours of continuous rest every day, in addition to one-hour respites each for breakfast, lunch and dinner.

14 days annual vacation leave with pay

Househelpers would also work not more than six consecutive days every week. They would be entitled to 14 days annual vacation leave with pay.

Under Legarda’s bill, househelpers would likewise be entitled to basic necessities, including three full meals every day; adequate, private and safe sleeping quarters; as well as advances to cover work-related illnesses or injuries, subject to reimbursement by the SSS and Philhealth.

Legarda’s bill also sets a comprehensive standard for the decent treatment of househelpers. Their mistreatment, such as the deprivation of basic necessities as punishment or disciplinary action, would be totally forbidden.

The bill likewise prohibits the employment of househelpers via sub-contracting; bans recruitment and finder's fees at the househelper's expense; and disallows bonded labor, or the use of future services as collateral for an advance extended to the househelper.