Is the Philippine embassy in Japan violating Article 26 of the Family Code and Supreme Court decisions?

Update as of April 25, 2018: “SC recognizes divorce in marriage with foreigners” (Rappler) The Supreme Court (SC) en banc issued a landmark ruling on Tuesday, April 24, recognizing divorce in marriages with foreigners Voting 10-3-1, the SC en banc ruled “that a foreign divorce secured by a Filipino against a foreign spouse is also considered valid in the Philippines, even if it is the Filipino spouse who files for divorce abroad.” “Republic of the Philippines v. Marelyn Tanedo Manalo” G.R. No. 221029. April 24, 2018 Based on a clear and plain reading of paragraph 2 of Article 26 (Family Code), the provision only requires that there be a divorce validly obtained abroad. The letter of the law does not demand that the alien spouse should be the one who initiated the proceedings wherein the divorce decree was granted. It does not distinguish whether the Filipino spouse is the petitioner or the respondent in the foreign divorce proceeding.”

Through an e-mail, I was informed that the Philippine embassy in Japan has issued as of September 2009 guidelines titled “Announcement for Divorced Filipinos” and for what it calls “Certificate of No Objection” for Filipinos wishing to marry Japanese and foreign nationals.

Part of the guidelines concerns requirements for divorced Filipinos who wish to marry either Japanese or other foreign nationals. I stand to be corrected, but at first glance, it seems that the guidelines issued by the Philippine embassy in Japan violate Article 26 of the Family Code of the Philippines and various Supreme Court decisions (please read my posts Divorce obtained abroad by a Filipino not recognized here and The right of a divorced Filipino spouse to remarry under Article 26 of the Family Code).

The Supreme Court has ruled that a Filipino citizen against whom a divorce was filed and obtained by the foreigner-spouse can only remarry after the foreign divorce decree has been recognized by a Philippine court of competent jurisdiction and such court has ruled that the Filipino can legally remarry. It seems that the Philippine embassy in Japan has by itself and without any legal authority done away with the need for the judicial recognition of a foreign divorce decree. I will further investigate this issue and keep you informed. Posted below is part of the guidelines issued by the Philippine embassy in Japan:

For Divorced Filipinos:

8. Valid Passport: Original & one (1) photocopy of first page, visa page, and last page.NOTE: If Expired Passport/Lost Passport/Mutilated Passport/Passport under an Assumed Name (AKA/Alias)/Passport with Discrepancy (First Name/Middle Name/Last Name/Date of Birth/Place of Birth), applicant has to apply for a new passport prior to acceptance of application for CNO. (Please see requirements for the abovementioned passport cases.)

9. Certificate of Philippine Nationality/Identity (CPNI) under single name (please see requirements for CPNI)

10. Completed Affidavit of Civil Status to be filed with the Embassy

11. One Original and one (1) photocopy of the following, whichever is applicable, to be obtained from the City Hall:

a. If former spouse is a Japanese, Family Registry (Koseki Tohon) reflecting the couples’ place and date of divorce. Please note that Koseki Shohon (part of Koseki Tohon) and Juri Shomeisho (Certificate of Acceptance) are not acceptable.

b. If former spouse is a foreign national other than Japanese, Certificate of Acceptance of Divorce (Juri Shomeisho) showing the couples’ place and date of divorce.

12. Original Report of Marriage (if married in Japan or outside the Philippines) or NSO Marriage Contract authenticated by the DFA (if married in the Philippines) of applicant and former spouse (Original and 1 Photocopy)

13. Birth Certificate in security paper issued by the NSO authenticated by the Department of Foreign Affairs (Original & 1 Photocopy).

14. Two (2) Passport Size Pictures

For Filipinos whose marriage has been annulled:

1. Valid Passport (Original & one (1) photocopy of first page, visa page, and last page)

For female applicants: Present original passport and submit one photocopy of first page, page with amendment to “single name,” and last page bearing name of signing officer

For male applicants: Original & one (1) photocopy of first page & last page

NOTE: If Expired Passport/Lost Passport/Mutilated Passport/Passport under an Assumed Name (AKA/Alias)/Passport with Discrepancy (First Name/Middle Name/Last Name/Date of Birth/Place of Birth), applicant has to apply for a new passport prior to acceptance of application for CNO. (Please see requirements for the above-mentioned passport cases.)

2. Amended Marriage Contract issued by the NSO (Original & 1 Photocopy) has to be authenticated by Authentication Division, DFA Manila

3. Certificate of Finality of Decision and Court Order/Decision (Original & 1 Photocopy) has to be authenticated by Authentication Division, DFA Manila

4. Birth Certificate issued on security paper by the NSO (Original & 1 Photocopy) has authenticated by Authentication Division, DFA Manila

5. Two (2) passport-size pictures

As you can read from the guidelines above, the Philippine embassy in Japan issues a “Certificate of No Objection” (CNO) to previously- divorced Filipino citizens who wish to re-marry Japanese and foreign nationals, without requiring the presentation of a decision by a Philippine court recognizing the foreign divorce decree and declaring the Filipino’s right to remarry.

On the other hand, the embassy’s requirements for the issuance of a CNO for Filipinos whose marriages have been annulled provide that the following must be submitted: (a) amended marriage certificate from the NSO; and (b) certificate of finality of decision and court order/decision authenticated by the DFA.

If a person gets married while the petition for declaration of nullity of the first marriage is ongoing, can he or she be charged with bigamy?

Please also read the earlier post: Is bigamy committed when a person gets married to another party while his or her petition for annulment of a previous marriage is pending in court?

Related issues:

1. What if the first marriage is declared null and void? Will this make the second marriage valid?

2. What if the second marriage was declared null and void on the ground of psychological incapacity? Will this be a defense against a charge of bigamy?

What is bigamy?

Article 349 of the Revised Penal Code states that bigamy is committed when “a person contracts a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings”. The penalty for bigamy is prision mayor (minimum of six years and one day to a maximum of twelve years). Bigamy is a public crime which means that anyone who knows of the bigamous marriage can file the criminal complaint.

People in a void marriage cannot take the law into their own hands and by themselves declare that their marriage is void

Please take note that under Article 40 of the Family Code, people in a void marriage cannot take the law into their own hands and by themselves declare that their marriage is void. Article 40 states that “the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void”. Simply stated, if the marriage is void, either or both spouses must file a petition asking the court to declare the marriage void.

If the court declares the marriage void, can there be a subsequent marriage immediately?

Some people got married immediately after they received the copy of the court’s decision granting the petition for declaration of nullity of their first marriage. This is wrong. At what point in time can a subsequent marriage take place? Please take note of Sections 21 to 23 of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. Only when these sections have been complied with can a subsequent marriage take place.

Sec. 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes. - Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings.

Sec. 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage.-

(a) The court shall issue the Decree after:

(1) Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located;

(2) Registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located; and

(3) The delivery of the children's presumptive legitimes in cash, property, or sound securities.

(b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition.

Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected.

Sec. 23. Registration and publication of the decree; decree as best evidence. –

(a) The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report to the court compliance with this requirement within thirty days from receipt of the copy of the Decree.

(b) In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation.

(c) The registered Decree shall be the best evidence to prove the declaration of absolute nullity or annulment of marriage and shall serve as notice to third persons concerning the properties of petitioner and respondent as well as the properties or presumptive legitimes delivered to their common children.

The Supreme Court ruled in Mercado vs. Tan, Tenebro vs. CA, and in Abunado vs. People, respectively, that:

1. The subsequent judicial declaration of nullity of marriage on the ground of psychological incapacity does not retroact to the date of the celebration of the marriage insofar as the Philippines’ penal laws are concerned. As such, an individual who contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent declaration that the second marriage is void ab initio on the ground of psychological incapacity.

2. A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statute as “void.”

3. The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioner’s assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

Mercado vs. Tan (G.R. No. 137110, 1 August 2000)

In the instant case, petitioner contracted a second marriage although there was yet no judicial declaration of nullity of his first marriage. In fact, he instituted the Petition to have the first marriage declared void only after complainant had filed a letter-complaint charging him with bigamy. By contracting a second marriage while the first was still subsisting, he committed the acts punishable under Article 349 of the Revised Penal Code.

That he subsequently obtained a judicial declaration of the nullity of the first marriage was immaterial. To repeat, the crime had already been consummated by then. Moreover, his view effectively encourages delay in the prosecution of bigamy cases; an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

Tenebro vs. CA, G.R. No. 150758, February 18, 2004

We are called on to decide the novel issue concerning the effect of the judicial declaration of the nullity of a second or subsequent marriage, on the ground of psychological incapacity, on an individual’s criminal liability for bigamy. We hold that the subsequent judicial declaration of nullity of marriage on the ground of psychological incapacity does not retroact to the date of the celebration of the marriage insofar as the Philippines’ penal laws are concerned. As such, an individual who contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent declaration that the second marriage is void ab initio on the ground of psychological incapacity.

Petitioner in this case, Veronico Tenebro, contracted marriage with private complainant Leticia Ancajas on April 10, 1990. The two were wed by Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City. Tenebro and Ancajas lived together continuously and without interruption until the latter part of 1991, when Tenebro informed Ancajas that he had been previously married to a certain Hilda Villareyes on November 10, 1986. Tenebro showed Ancajas a photocopy of a marriage contract between him and Villareyes. Invoking this previous marriage, petitioner thereafter left the conjugal dwelling which he shared with Ancajas, stating that he was going to cohabit with Villareyes.

On January 25, 1993, petitioner contracted yet another marriage, this one with a certain Nilda Villegas, before Judge German Lee, Jr. of the Regional Trial Court of Cebu City, Branch 15. When Ancajas learned of this third marriage, she verified from Villareyes whether the latter was indeed married to petitioner. In a handwritten letter, Villareyes confirmed that petitioner, Veronico Tenebro, was indeed her husband.

The second tier of petitioner’s defense hinges on the effects of the subsequent judicial declaration of the nullity of the second marriage on the ground of psychological incapacity.

Petitioner argues that this subsequent judicial declaration retroacts to the date of the celebration of the marriage to Ancajas. As such, he argues that, since his marriage to Ancajas was subsequently declared void ab initio, the crime of bigamy was not committed.

This argument is not impressed with merit. Petitioner makes much of the judicial declaration of the nullity of the second marriage on the ground of psychological incapacity, invoking Article 36 of the Family Code. What petitioner fails to realize is that a declaration of the nullity of the second marriage on the ground of psychological incapacity is of absolutely no moment insofar as the State’s penal laws are concerned.

As a second or subsequent marriage contracted during the subsistence of petitioner’s valid marriage to Villareyes, petitioner’s marriage to Ancajas would be null and void ab initio completely regardless of petitioner’s psychological capacity or incapacity. Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. Pertinently, Article 349 of the Revised Penal Code criminalizes “any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings”. A plain reading of the law, therefore, would indicate that the provision penalizes the mere act of contracting a second or a subsequent marriage during the subsistence of a valid marriage.

Thus, as soon as the second marriage to Ancajas was celebrated on April 10, 1990, during the subsistence of the valid first marriage, the crime of bigamy had already been consummated. To our mind, there is no cogent reason for distinguishing between a subsequent marriage that is null and void purely because it is a second or subsequent marriage, and a subsequent marriage that is null and void on the ground of psychological incapacity, at least insofar as criminal liability for bigamy is concerned. The State’s penal laws protecting the institution of marriage are in recognition of the sacrosanct character of this special contract between spouses, and punish an individual’s deliberate disregard of the permanent character of the special bond between spouses, which petitioner has undoubtedly done.

Moreover, the declaration of the nullity of the second marriage on the ground of psychological incapacity is not an indicator that petitioner’s marriage to Ancajas lacks the essential requisites for validity. The requisites for the validity of a marriage are classified by the Family Code into essential (legal capacity of the contracting parties and their consent freely given in the presence of the solemnizing officer) and formal (authority of the solemnizing officer, marriage license, and marriage ceremony wherein the parties personally declare their agreement to marry before the solemnizing officer in the presence of at least two witnesses). Under Article 5 of the Family Code, any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38 may contract marriage.

In this case, all the essential and formal requisites for the validity of marriage were satisfied by petitioner and Ancajas. Both were over eighteen years of age, and they voluntarily contracted the second marriage with the required license before Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City, in the presence of at least two witnesses.

Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, it is significant to note that said marriage is not without legal effects. Among these effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate. There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability for bigamy. To hold otherwise would render the State’s penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless women with the promise of futurity and commitment.

As a final point, we note that based on the evidence on record, petitioner contracted marriage a third time, while his marriages to Villareyes and Ancajas were both still subsisting. Although this is irrelevant in the determination of the accused’s guilt for purposes of this particular case, the act of the accused displays a deliberate disregard for the sanctity of marriage, and the State does not look kindly on such activities.Marriage is a special contract, the key characteristic of which is its permanence. When an individual manifests a deliberate pattern of flouting the foundation of the State’s basic social institution, the State’s criminal laws on bigamy step in.

Abunado vs. People, G.R. No. 159218, March 30, 2004

Petitioner claims that his petition for annulment/declaration of nullity of marriage was a prejudicial question, hence, the proceedings in the bigamy case should have been suspended during the pendency of the annulment case. Petitioner, in fact, eventually obtained a judicial declaration of nullity of his marriage to Narcisa on October 29, 1999.

A prejudicial question has been defined as one based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. The rationale behind the principle of suspending a criminal case in view of a prejudicial question is to avoid two conflicting decisions.

The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioner’s assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

The outcome of the civil case for annulment of petitioner’s marriage to Narcisa had no bearing upon the determination of petitioner’s innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted.

Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding. In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled.

Legal lessons from GMA 7 telenovela “Ikaw Sana”

I love watching local and foreign news programs. Last week while waiting for the 6:30 PM newscasts, I got to watch snippets of episodes of GMA 7 telenovela “Ikaw Sana” starring Jennilyn Mercado, Mark Herras and Pauleen Luna. The scenes involved Jennilyn’s character being sentenced in a criminal case, brought to Davao correctional facility, and acquitted after a new trial (all of these in a week or two of episodes).

What legal lessons can we learn from “Ikaw Sana”?

1. Eliza, the character played by Jennilyn was charged, if I remember correctly, with murder, a non-bailable offense. However, despite the term “non-bailable”, an accused can still file a petition for bail. If the court finds that the evidence of guilt is weak, then bail is granted. This, incidentally, is what happened in the case involving Dennis Roldan.

2. After Eliza was convicted, she asked the character played by Pauleen Luna to file an appeal for her. There are several options for an accused convicted by the court. These are:

• Appeal to a higher court – if the case originated from the MTC (Municipal or Metropolitan Trial Court), the appeal is to the Regional Trial Court. If the case came from the RTC, then the appeal is to the Court of Appeals. If the conviction involves “reclusion perpetua”, then the case is automatically elevated to the Supreme Court.

• Motion for modification of judgment of conviction – for example, by reducing the penalty imposed in view of a mitigating circumstance (Rule 120, Section 7) for purposes of applying for probation

• Motion for reconsideration – pointing out errors of law or fact in the judgment thus giving the court the opportunity to re-examine and correct its decision (Rule 121, Sections 1, 3 and 6)

• Motion for new trial – based on two grounds: (a) errors of law or irregularities committed during the trial which were prejudicial to the substantial rights of the accused; and (b) new and material evidence which the accused could not with reasonable diligence have discovered and produced at the trial, and which if introduced and admitted, would probably change the judgment (Rule 121, section 2).

(A “motion to reopen” is available only after either or both parties have presented their evidence; if the judgment has already been promulgated, the proper remedy is a motion for reconsideration or new trial).

In “Ikaw Sana” the lawyer for Eliza asked the court for a new trial, saying that a new witness (played by Harlene Bautista, I think) has become available. As the telenovela goes, the court acquitted Jennilyn’s character. But if Eliza has been in jail for several years (since the characters played by Mark and Pauleen already have a child), then the writers of the show had their legal remedy wrong. A motion for new trial is filed within the period for filing an appeal, that is, fifteen days from the time Eliza was found guilty by the court (“promulgation” is the legal term).

The telenovela also does not provide its viewers with a clear time frame for these events, as to how many months or even weeks passed between them. After the scene where the defense lawyer was asking for a new trial, there was a a commercial break. The next scene showed the judge acquitting Jennilyn’s character. This is very sloppy storytelling; the characters did not also seem to have aged even a little bit.
“Ikaw Sana” with its fast pace can also potentially create a mis-impression in the minds of its viewers. In real life, our judicial system crawls from hearing to hearing, from stage to stage. I can just imagine people thinking, “Bakit sa ‘Ikaw Sana’ ang bilis ng trial. Ang annulment ko, two years na, hindi pa tapos! Palaging reset!”

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.”