Best interest of child and tender years doctrine June 6, 2013 9:51 pm
by BENCHPRESS DAILY COURTSIDE REPORT • • •
A Filipino couple, couple, both working in the United States (US), met and fell in love. After three (3) ears of living together and having a daughter, the got married. A few months later, the wife gave birth to their second child, but their relationship relationship began to deteriorate. deteriorate. !he !he wife claimed claimed that her husband nagged nagged her too much about about mone matters while he claimed she was a "spendthrift, buing e#pensive $ewelr and anti%ue furniture instead of attending to household e#penses.& 'ventuall, the relationship turned sour and the wife moved to a different state, leaving her husband and 'ventuall, children behind. !he husband moved back to the hilippines. ue to the demands of his work, however, he was forced to live in the US once again, so he left his children with his sister. *t was onl two ears later that the mother of the children went to the hilippines to gain custod over her children. !he +egional !rial ourt (+!) gave the father sole parental authorit and suspended the mother-s parental authorit over her children. isitation rights were to be agreed upon b the parties and approved b the +!. !he ourt of Appeals reversed the trial court-s decision and granted custod to the mother and visitation rights to the father on weekends premised on the tender ears doctrine, which provides that "no mother shall be separated from her child under seven ears of age, unless the court finds compelling reasons for such measure.& !he Supreme ourt (S) sustained the findings and conclusions of the +! +!,, reiterating that the paramount criterion for granting parental authorit authorit is the best interest of the child and not the tender ears doctrine / 01the +!2 gave greater attention to the choice of +osalind (the daughter) and considered in detail all the relevant factors bearing bearing on the issue of custod0 *t is not so much the suffering, pride, and other feelings of either parent but the welfare of the child which is the paramount consideration. iting Unson *** v. avarro, it e#plained that "in all controversies regarding the custod of minors, the sole and foremost consideration is the phsical, education, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the contending parents.& !he S further e#plained the rules in ascertaining the child-s best interest / *n ascertaining the welfare and best interests of the child, courts are mandated b the Famil ode to take into account all relevant considerations. considerations. *f a child is under seven ears of age, the law presumes that the mother is the best custodian. !he presumption is strong but it is not conclusive. *t can be overcome b "compelling "compelling reasons.& *f a child is over seven, his choice is paramount but, again, the court is not bound b that choice. *n its discretion, the court ma find the chosen parent unfit and award custod to the other parent, or even to a third part as it deems fit under the circumstance circumstances. s. 4astl, the ourt observed that the children-s age and their choice of parent should have been taken into consideration considerati on when assessing the childrens best interest / ot onl are the children children over seven ears ears old and their clear clear choice is the father, father, but the the illicit or immoral immoral activities of the mother had alread caused emotional disturbances, personalit conflicts, and e#posure to conflicting moral values, at least in +osalind. !his is not to mention her conviction for the crime of bigam0 !he children understand the unfortunate shortcomings of their mother and have been affected in their emotional growth b her behavior ('spiritu v. ourt ourt of Appeals, 5.+. o. 66789:, 67 ;arch 6<<7, =. ;elo).
Custody battle Nothing can be more traumatic than a husband and a wife’s battle for custody of their children, except probably for a child to know that his or h er parents are in a bitter, legal tugof-war for his or her custody.
Welfare of the minors is the controlling consideration; factors which determine fitness of a parent he !upreme "ourt in the case of Bondag of Bondag#y #y $s. Bondag Bondag#y #y %&.'. No. ()*+(. ecember , **(/ stated that the welfare of the minors is the controlling consideration on the issue. he "ourt also said that the factors that determine the fitness of any parent are0 1(2 the 1(2 the ability to see to the physical, educational, social and moral wel fare of the children, and 12 the ability to give them a healthy environment as well as physical and financial support taking into 12 the consideration the respective resources and social and moral situations of the parents.
3xcerpts from the !upreme "ourt decision Posted below are excerpts of the Bondagjy decision (emphasis by boldfacing supplied). he P! "#$% mentioned in the decision refers to the &ode of 'uslim Personal aws.
1(2 s a wife, a &hristian who converted to slam before her marriage to a 'uslim and converted back 1(2 s to &atholicism upon their separation, still bound by the moral laws of slam in the determination of her fitness to be the custodian of her children* he standard in the determination of sufficiency of proof, however, is not restricted to 'uslim laws. he +amily &ode shall be taken into consideration in deciding whether a non'uslim woman is incompetent. -hat determines her capacity is the standard laid down by the +amily &ode now that she is not a 'uslim. 4ndeed, what determines the fitness of any parent is the ability to see to the physical, educational, social and moral welfare of the children, and the ability to gi$e them a healthy en$ironment as well as physical and financial support taking into consideration the respecti$e resources and social and moral situations of the parents. he record shows that petitioner is eually financially capable of providing for all the needs of her children. he children went to school at !e a /alle 0obel /chool, 'untinlupa &ity with their tuition paid by petitioner according to the school1s certification. 12 he welfare of the minors is the controlling consideration on the issue. n ascertaining the welfare and best interest of the children, courts are mandated by the + amily &ode to take into account all relevant considerations.
Custody battle Nothing can be more traumatic than a husband and a wife’s battle for custody of their children, except probably for a child to know that his or h er parents are in a bitter, legal tugof-war for his or her custody.
Welfare of the minors is the controlling consideration; factors which determine fitness of a parent he !upreme "ourt in the case of Bondag of Bondag#y #y $s. Bondag Bondag#y #y %&.'. No. ()*+(. ecember , **(/ stated that the welfare of the minors is the controlling consideration on the issue. he "ourt also said that the factors that determine the fitness of any parent are0 1(2 the 1(2 the ability to see to the physical, educational, social and moral wel fare of the children, and 12 the ability to give them a healthy environment as well as physical and financial support taking into 12 the consideration the respective resources and social and moral situations of the parents.
3xcerpts from the !upreme "ourt decision Posted below are excerpts of the Bondagjy decision (emphasis by boldfacing supplied). he P! "#$% mentioned in the decision refers to the &ode of 'uslim Personal aws.
1(2 s a wife, a &hristian who converted to slam before her marriage to a 'uslim and converted back 1(2 s to &atholicism upon their separation, still bound by the moral laws of slam in the determination of her fitness to be the custodian of her children* he standard in the determination of sufficiency of proof, however, is not restricted to 'uslim laws. he +amily &ode shall be taken into consideration in deciding whether a non'uslim woman is incompetent. -hat determines her capacity is the standard laid down by the +amily &ode now that she is not a 'uslim. 4ndeed, what determines the fitness of any parent is the ability to see to the physical, educational, social and moral welfare of the children, and the ability to gi$e them a healthy en$ironment as well as physical and financial support taking into consideration the respecti$e resources and social and moral situations of the parents. he record shows that petitioner is eually financially capable of providing for all the needs of her children. he children went to school at !e a /alle 0obel /chool, 'untinlupa &ity with their tuition paid by petitioner according to the school1s certification. 12 he welfare of the minors is the controlling consideration on the issue. n ascertaining the welfare and best interest of the children, courts are mandated by the + amily &ode to take into account all relevant considerations.
5rticle (( of the 6amily "ode pro$ides that the father and mother shall #ointly exercise parental authority o$er the persons of their common children. !imilarly, 7. !imilarly, 7.. No. (*+8 is clear that th at where the parents are not di$orced or legally separated, the father and mother shall #ointly exercise #ust and reasonable parental authority and fulfill their responsibility o$er their legitimate children. 3ither parent may lose parental authority o$er the child only for a $alid reason. n reason. n cases where both parties cannot have custody because of their voluntary separation, we take into consideration the circumstances that would lead us to beli eve which parent can better take care of the children. 5lthough we see the need for the children to ha$e both a mother and a father, we belie$e that petitioner has more capacity and time to see to the children’s needs. 2espondent needs. 2espondent is a businessman whose work reuires that he go abroad or be in different places most of the time. 3nder P.!. P.!. 4o. 5#%, the custody of the minor children, absent a compelling reason to the contrary, is given to the mother. 182 9owe$er, the award of custody to the wife does not depri$e the husband of parental authority. n authority. n the case of /ilva v. &ourt &ourt of 6ppeals, we said that7 8Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their upbringing and safeguard their best interest and welfare. his authority and responsibility may not be unduly denied the parents9 neither may it be renounced b y them. :ven when the parents are estranged and their affection for each other is lost, the attachment and feeling for their offsprings invariably remain unchanged. 4either the law nor the courts allow this affinity to suffer absent, of course, any real, grave and imminent threat to the wellbeing of the child.
Tender Tender years rules rules
When Mother of Child Can be Deprived of Custody Custo dy Asagener al r ul e,ac hi l dunder7year sofageshal l bei nt hecus t odyoft hemot her( Ar t213oft he Fami l yCode) .Thi si sk no wnast hema mat er nal pr ef er enc er ul eort ender y ear s r ul e. Butt hi sr u l eha se x c ep t i ons :whent hec our tfi ndscomp el l i ngr eas on st oor dero t her wi s e.Th i s i n cl u de sfi nd i n gc omp el l i ngev i d en cesh owi n gt h emo t h er ’ sun fit n es ss uc ha s : •
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aba ndo nme ment
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unempl oy ment
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i mmor al i t y
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ha bi t ual dr u nk enn es s
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dr ugaddi c t i on
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mal t r eat mentoft hec hi l d
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i ns ani t y
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-ednesday, ;uly "", <##=
&ustody battles over children7 what determines fitness of a parent over another*
Notes0 %(/ &lick %(/ &lick the picture to download a free P!+ newsletter on this topic9 %/ %/ Please Please read my related posts titled 8 >isitation rights over illegitimate children?9 children ?9 and 8@ow 8@ow do our courts determine which parent has the right of custody of the children* ?.
Nothing can be more traumatic than a husband and a wife’s battle for custody of their children, except probably for a child to know that his or h er parents are in a bitter, legal tugof-war for his or her custody.
Welfare of the minors is the controlling consideration; factors which
determine fitness of a parent he !upreme "ourt in the case of Bondag of Bondag#y #y $s. Bondag Bondag#y #y %&.'. No. ()*+(. ecember , **(/ stated that the welfare of the minors is the controlling consideration on the issue. he "ourt also said that the factors that determine the fitness of any parent are0 1(2 the 1(2 the ability to see to the physical, educational, social and moral wel fare of the children, and 12 the 12 the ability to give them a healthy environment as well as physical and financial support taking into consideration the respective resources and social and moral situations of the parents.
3xcerpts from the !upreme "ourt decision Posted below are excerpts of the Bondagjy decision (emphasis by boldfacing supplied). he P! "#$% mentioned in the decision refers to the &ode of 'uslim Personal aws. 1(2 s 1(2 s a wife, a &hristian who converted to slam before her marriage to a 'uslim and converted back to &atholicism upon their separation, still bound by the moral laws of slam in the determination of her fitness to be the custodian of her children* he standard in the determination of sufficiency of proof, however, is not restricted to 'uslim laws. he +amily &ode shall be taken into consideration in deciding whether a non'uslim woman is incompetent. -hat determines her capacity is the standard laid down by the +amily &ode now that she is not a 'uslim. 4ndeed, what determines the fitness of any parent is the ability to see to the physical, educational, social and moral welfare of the children, and the ability to gi$e them a healthy en$ironment as well as physical and financial support taking into consideration the respecti$e resources and social and moral situations of the parents. he record shows that petitioner is eually financially capable of providing for all the needs of her children. he children went to school at !e a /alle 0obel /chool, 'untinlupa &ity with their tuition paid by petitioner according to the school1s certification. 12 he welfare of the minors is the controlling consideration on the issue. n ascertaining the welfare and best interest of the children, courts are mandated by the + amily &ode to take into account all relevant considerations. 5rticle (( of the 6amily "ode pro$ides that the father and mother shall #ointly exercise parental authority o$er the persons of their common children.
!imilarly, 7.. No. (*+8 is clear that where the parents are not di$orced or legally separated, the father and mother shall #ointly exercise #ust and reasonable parental authority and fulfill their responsibility o$er their legitimate children. 3ither parent may lose parental authority o$er the child only for a $alid reason. n cases where both parties cannot have custody because of their voluntary separation, we take into consideration the circumstances that would lead us to beli eve which parent can better take care of the children. 5lthough we see the need for the children to ha$e both a mother and a father, we belie$e that petitioner has more capacity and time to see to the children’s needs. 2espondent is a businessman whose work reuires that he go abroad or be in different places most of the time. 3nder P.!. 4o. 5#%, the custody of the minor children, absent a compelling reason to the contrary, is given to the mother. 182 9owe$er, the award of custody to the wife does not depri$e the husband of parental authority. n the case of /ilva v. &ourt of 6ppeals, we said that7 8Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their upbringing and safeguard their best interest and welfare. his authority and responsibility may not be unduly denied the parents9 neither may it be renounced b y them. :ven when the parents are estranged and their affection for each other is lost, the attachment and feeling for their offsprings invariably remain unchanged. 4either the law nor the courts allow this affinity to suffer absent, of course, any real, grave and imminent threat to the wellbeing of the child.
Summary: [1] In custody disputes, the paramount criterion is the welfare and well-being of the child. [2] General rule: custody of a child below seven years of age belongs to the mother. [3] Eception: if there are compelling reasons, custody may be denied and granted to another party under !rticle "#$ of the %amily Code. [4] Compelling reasons for a mother to lose custody: neglect& abandonment& unemployment and immorality& habitual drun'enness& drug addiction& maltreatment of the child& insanity& a(iction with a communicable illness. Posted by 6tty. Aerry . Aalacio at -ednesday, ;uly "", <##=
39 comments :
6nonymous said... greetings atty, i would like to ask for your opinion on my situation. i am separated from my husband not legally. we separated because he is having an affair with another woman and had a child with her. presently, he is living in with that woman and their child, while me and my son have our own apartment to stay. i work in an office and i have a yaya for my son. my husband does not give financial support regularly, so my inlaws sometimes takes over and gives support to us. ever since we separated, about yrs, little by little he distants himself from my son. before he would come visit my son every < weeks and then lately months will take before he sees him. my inlaws regularly visits us every < weeks, and they are the ones getting updates about their grandson and tells my husband. i guess my husband doesnt want to see me thats why he seldom visits my son. my son who is = years old is beginning to ask me why his father do not stay with us and why does his father doesnt fulfill his role of being a father to him like his other classmates in school. i just change the subject whenever he asks because i dont want to rationaliCe to my son or give an impression to my son that me and his father have mutual views on the separation. he is slowly staying away from his responsibility to my son. i would like to ask atty what do i have to tell my son if he asks uestions about his fatherDs absence* is my husband developing no concern with my son anymore that he is drifting away, much more at the time my son needs a father at his age* is it normal for a father that its ok with him of not being part of the life of his own child* because i can see in my son his longing for a father role in his life. my heart breaks when i see my son like this. can you help me atty* thank you so much for your time. ;uly %", <##$ %7" 6'
dreamer said... his is how think of the situation7 &hildren will always ask uestion. -ill you tell the child the truth,beataroundthebush, or assume. would tell the child the truth, but just not in so many words, how ever would try to explain, as long as donDt have to lie, it wont hurt me as much in the future. ;uly %", <##$ ""7%% 6'
6tty. Aerry . Aalacio said... (. 4n terms of financial support, you can obligate your husband to support you and your son. Please read my post in this blog titled “Support for abandoned woman and family” . also have a free P!+ newsletter on this topic which you can download from my +amily 'atters website. Eou did not state what led to your husband1s adulterous relationship. n my /alt and ight blog, have several articles on marital infidelity. 4 highly ad$ise that you read r. :ames obson’s book “Love Must Be Tough” on how to deal with an adulterous spouse. <. /adly, a lot of men do not understand or realiCe the impact they have on their children. &hildren who grow up without a positive masculine role model often have great difficulty believing in Aod. his was the experience, for example, of &./. ewis (he wrote The Chronicles of Narnia which was turned into a series of @ollywood movies). @is father was a very strict disciplinarian who punished him as a young boy by asking him to recite the ord1s Prayer in atin. 8. 5lthough it may be awkward and difficult to explain to your son what the problem is, it will be better in the long run for you to be honest with him NW about his absentee father.
6lso, !r. !obson1s +ocus on the +amily ministry has a website www.family.org. Please surf to the section on FParentingG /pecial +amily /ituationsF where you will find articles such as7 &doptin" a Si"nificant 'amily (urpose) Sin"le *ads +aisin" *au"hters) ,ne Sin"le *ad-s Story) Net Steps +elated /nformation) &s a sin"le parent0 am / desertin" my children by ta!in" a few days to myself1 r. obson’s article titled = What encouragement can you offer to single parents>? can be found at http://family.custhelp.com/cgi-bin/family.cfg/php/enuser/st!ap.php"p!fa#i$%&' 6ugust #", <##$ H7< 6'
6nonymous said... thank you so much atty for your advices and suggested articles and books i can read to help me with my situation. my husband was always passive before when i try to talk to him about his affair, he was in denial at first but when i found out proofs of his infidelity, he finally told me that i was the reason why he had that affair because i did not fulfill his desire of having another child with him after our first born. in my heart atty, i wanted to have another child but i have a reproductive problem, so bearing another child will be a challenging one for me as i did with my firstborn. i was so thankful to Aod that @e blessed us with our firstborn inspite of my reproductive problem. my IBAE4 told me to wait a few years after our first born before i conceive again. but my husband didnt understand my situation, he accuses me that i did not want another child so he was tempted to have one with a mistress. but i believe atty that in our early years of our marriage that he has been philandering behind my back and when he mistakenly had his mistress pregnant, he put the blame on me because i have a reproductive problem. my husband had many girlfriends before he was married to me. i didnt got a &:4I'62 of him to check of his background, because i trusted him that much. he wasnt very open to talk about his girlfriends before and i respected that because i trust him. however, he was able to mention to me before, that before he had me as his girlfriend, he had an existing one. when we went steady, he did not ended his relationship immediately with the other girl, it went to a point that he had two of us as his girlfriends. but then at his own will, he broke up with the other one, and we were steady for % years before getting married.
i was so in love with him that i didnt forsee this kind of behavior in him about that situation having two girlfriends at the same time, and how can this be a piece of information on how will he handle relationships in the future. when i found out about his affair, and he finally admitted it, he told me that there is nothing to talk about and he wants to get out of our marriage and if he has the money, he will file for annulment. when he said that i believe he has come up with this decision of leaving us finally after denying the affair at first because he was still in the process of making decision of leaving us or not. so when he finally made that decision of leaving us, no one can change his decision not even his parents. i also sought for his parentsD help, but they cant do anything to the stubbornness of my husband. atty, how can i explain this all to my son* about the situation of me and his fatherDs infidelity* about why did his father left us* can you please help me atty* i dont know how to explain to my son. i dont know what to tell him or not to tell him. can you give me an example of what to tell my son, please atty* thank you so much po. 6ugust #<, <##$ =7J# 6'
/heila 'arie said... Areetings 6tty,id like to ask if i can force the father of my son to visit hi m and spend time with our son.Iur son is 5 yrs old now.:versince i gave birth he has constantly visted our son on weends.t stopped only about two momths ago.@e still continues to give financial support but thats not all im after. want my son to grow up close to his father.'y ex is % yrs old and is still single. Ictober <", <##$ H7%< P'
6tty. Aerry . Aalacio said... sheila marie, he love and care for a child are voluntary emotions and actions on the part of the father or mother. here is no legal remedy to force a father or mother to love his or her child. Please
read my related article 8&an you legally force your spouse to love and live with you*? (look for the link in the sidebar). f you want people to pray for you regarding this situation, please follow this link to a prayer room for men and women7 http7GGwomentodaymagaCine.comGchatGshare.html Ictober <%, <##$ %7JJ P'
6nonymous said... -hat if the parents were never married. he mother has been taking care of the child since day ", the father has not shown any kind of support, interest, or has not donated a penny towards the childDs needs. @e is now taking the mother to court seeking paternity and legitimation, and is also seeking joint custody but he has other children that he owes child support on. he mother is about to graduate from college and feels like she can raise her son without the drama and leeching behavior that comes along with the father. !o you think the court will grant his wishes even though he has been to jail, owes thousands in child support, and is involved in uestionable activity* 4ovember %#, <##$ H7%# 6'
6tty. Aerry . Aalacio said... +irst of all, an illegitimate child is under the /I: parental authority of the mother as provided for by 6rticle "=5 of the +amily &ode. /econdly, Philippine courts follow what is call ed the 8best interest of the child? d octrine. &ertain portions of the +& however lean towards the 8tender years? doctrine. -hether Ftender yearsF or Fbest interestF is used, doubt very much if the court will grant the petition with the irresponsible nature and the criminal record of the biological father. !ecember #%, <##$ H7
6nonymous said...
&an a FwouldbeF mom force the father to acknowledge(through surname and financial support) their child even if the father doesnDt want to* heirs is an extramarital affair because the man is already married though he is filing for an annulment. thanks atty. ;anuary "<, <##H "7%# P'
6tty. Aerry . Aalacio said... Please read my post titled 8/upport for abandoned woman and family.? he principles and procedures are the same, that is, avail of a Protection Irder under 26 H<5< to compel the man to provide support to the pregnant woman and the baby later on. ;anuary "%, <##H %75 P'
6nonymous said... just a follow up to the previous post atty.. what if the wife of the man filing for annulment knew of this situation (pregnant other woman). what might possibly happen to the case* will it favor the wife now* pwede ba silang ipakulong ng wife* ;anuary ", <##H "7%< P'
6tty. Aerry . Aalacio said... he wife has several options7 file a case for concubinage against her husband and the mistress, or psychological violence under 26 H<5<. ;anuary "J, <##H "<7%< 6'
;ojo said... !ear 6tty., am the ninong of three, wonderful kids who love so much as if they were my own children.
n fact, am the one supporting the education of one of the children, the middle of the three, whom am the most closest to emotionally and feels the same way for me in return. he father and mother lives in my house as my sort of FassistanceF to them and also want to be with the children and experience their presence. @owever, the mother has been errign and doing some strange, mysterious actions lately like leaving the house in the early afternoon, telling the kids that she is going to buy school supplies or whatever but then she comes home the following day at "# a.m. intoxicated. -e investigated and have discovered that she is seeingGdating a /P#< policeman. -e also discovered that this has been going on for a long time now. he husband and wife are always fighting because of this but the wife who is an longga (and not so educated) is very FmatarayF and she threatens the husband that she will take the kids away and the husband will not see them anymore (which also means will not see them too since am close to the husband) and also demands FsustentoF if ever they will spearate. /he screams at the top of voice and is very scandalous specially when she is drunk. pity my kumpare, the husband, because he is so tolerant and understanding and tries his best to try to mend the problem peacefully but the wife is very a busive and repeats her galivanting out at night. 6lso, pity the husband because he is a part time reflexologist and whatever he earns he gives to her so that she can save the money but instead it appears she spends it on her drinking spree and we have been told by witnesses that she sometimes pays for the bill of the whole FbarkadaF of that policeman that we think she is having an affair with. !apat with all the money he has been remitting to her from his parttime work he should already ahve saved almost <#K but when he asked the wife wala dawL AeeshL /he spends like there is no tomorrow and living the life of a single womanL o top it all she has in the past verbally threatened the husband re kilala n ya isang pulis against him. -e strongly beli eve that she is having an extra martal affair because of her regularity going out, lying and leaving the kids all alone with no one to watch them and retuning back the following morning but we have no solid evidence but all verbal reports from friends and witnesses and we do believe they are reliable. and the husband are distressed by this and the husband would like to separate but he would also like to have custody of the children since he is the breadwinner (and of course would also like to continue my assistance for the kids but am at a dead end since have no blood relations to them whatsoever). (or rather the husband) needs help as he is a battered husband psychologically by the wife but what is a common concern for both of us is that he at the same time will be able to gain custody of the kids specially the
connections. hank you so much and please we need help. 'arch #H, <##H "#7J" 6'
;ojo said... !ear 6tty., Ih forgot to mention that the /P#< police officer was talking about is also a married man the info we got was from other policemen working in the same precint he is assigned to. &an the husband also file a case against that police officer aside from pursuing his cause with his wife and gaining custody of his kids* 'arch #H, <##H ""7<= 6'
6tty. Aerry . Aalacio said... Please also read my post titled 8&an a mother be deprived of custody of her child*? (look for the link in the sidebar). f the husband is able to prove that there are compelling grounds for depriving the mother of custody, then the court will grant custody to the father. Eour friend can file administrative case against the police officer with the 6/ (nternal 6ffairs /ervice of the P4P). @e can also inuire with the Public 6ssistance Bureau of the Iffice of the Imbudsman in 6gham 2oad, MueCon &ity, if he can file the case directly with the Imbudsman. 6s to the legal separation, custody of kids, your friend can try to ask for free legal help from the P6I (Public 6ttorneys Iffice) or from the BP (ntegrated Bar of the Philippines) chapter in your town or city. he BP chapter offices are usually located in the @all of ;ustice of cities. Eou can also try to get free legal help from the I6 (office of egal 6id) of the 3P &ollege of aw in !iliman, MueCon &ity. he !I; 6ction &enter also acts on complaints, reuests for assistance and legal ueries of walkin clients of the !I;. +or legal assistance please visit the !epartment of ;ustice 6ction &enter (!I;6&) 'ain Iffice, Around +loor, 'ultiPurpose Building, Padre +aura /treet,
:rmita, 'anila9 elephone no7 J<%$$"9 :mail 6ddress7 dojacNdoj.gov.ph or visit any 2egionalGProvincialG&ity Prosecution Iffices in your locality. 'arch "#, <##H J7"% P'
Parenthood said... Aood !ay 6tty. Aalacio i lost my love to my husband so i had committed adultery and now iDm pregnant with another man. i had a Jyr old daughter with my husband. since i am pregnant with my Jyr old daughter, we live with my parents. though heDs giving a financial support, still its lack. now heDs working abroad, he earns money but he gives us no half of his salary and sometimes delayed for how many months. when he found out that iDm pregnant, he took my daughter away from me and he decided that his sister in law would take care of my daughter while heDs back in abroad now. what will be my rights for my daughter* they even donDt want me to borrow my daughter... pls help me. i want my daughter back. 6pril #5, <##H "#7<# 6'
6tty. Aerry . Aalacio said... Eou can file a petition for Protection Irder under 26 H<5< to regain custody of your child. Please read my posts on 26 H<5<(look for the links i n the sidebar). +rom a Biblical point of view however, the loss of love is not a ground for annulling a marriage, or an excuse for being involved in an adulterous affair. 6pril #=, <##H =7"% 6'
6nonymous said... ggod morning..my brother got married last <##5 thru a civil wedding..and he had < kids now < years old and months old... @e had a hard time to look fof a job because of his age so my parents provide everything and me too.. was the one who provide money for < caesarian operations that cost
%Jthousand each...from giving birt..and i was very much disappointed b ecause the girl choose to live in her parents house and since the birth of the children my parents were not able to see them because the wife doesnt allow my brother to visit my parents in davao..But my parents were the one whoe provide for the milk,foods and clothings because of my brother situation.. then last week his wife told him that she will changed the family name of my < nephews..because my brother cant give what she want i am overseas..i spent more money since <##J for her knowing that she will be a good mother because she is a christian... my parents were in davao and the children were in manila...do my brother had a right to bring my nephew to visit my parents in davao* or does his wife has the right to change the family name of the kids because she want too*whats our right as a provider of the kids needs...im overseas and i felt so bad for the kids because the woman cant provide anything when it talks about the future..til now my parents provide everything especially the milk..the side of the girl did not provide anything because they have no money...my parents continue to give money even if they were not able to see the kids...when they bay were hospitaliCed i sent money for the private hospital..i just want a n answer if she can easily changed the family name of my nephews*what are the grounds of changing it... hope to hear from you atty..thanks and have a blessed holy week... 6pril #H, <##H $7%= 6'
6tty. Aerry . Aalacio said... he children are legitimate and therefore their surnames are that of their parents (middle name is the mother1s surname and the surname is your brother1s surname). he wife cannot simply by her whim and personal desires have their names changed. 6pril ", <##H H7"" 6'
6nonymous said... @ello 6ttorney, just learnt about 2epublic 6ct H<5< or the F6nti>iolence 6gainst -omen and their &hildren
6ct of <##?. his is my story. am now annulled and got the finality last year. and my ex husband have % kids, ", "< and "# years old. he problem started when my exhusband went to ;apan to work. and the kids stayed in the Philippines. @e would go home in the Philippines twice or % times a year. hen one day had my papsmear and he call ed that day and wanted to know the result. joked and told him that Dm infected wG a sexual disease and asked him if ke was cheating on me and having sex wG other girls in ;apan. @is voice trembled and sounded worried. -hen started laughing and told him was just joking he got really angry. -hich made me suspicious. hen one day he called overseas and asked him if he is cheating on me coC could feel something different the last time h e went home and called. 6nd at that very moment he admitted he has a girlfriend there and they are living together and he told the girl that he is married but we are separated wGc at that time was a lie. Because we were together still. earning about his FpambabaeF really hurt me a lot and at that time my kids were Jyears old, % years old and " "G< year old. Ine of our close friends suggested that should be smart and ask him to sponsor me to go to ;apan so could start earning for myself and my kids coC during our marriage was a plain housewife. thought Fyeah, why notF. hinking Dll try to save the marriage eventhough he cheated because wanted my kids to have a whole family and if things donDt workout between me and my husband then can start my life. /o told him that idea and he agreed but he had some terms. shouldnDt show my face to his g irlfriend then and go and stay with my cousin who lives in a coutryside area in ;apan. @e was and is in okyo. /o agreed but wasnDt able to get a good job in that area where my cousin was staying. /o called him up and ask if could go to okyo and begged. +inally, he agreed after begged and cried a lot but have to hide from the girlfriend then. 6t that time was really naive and stupid. -hy do have to hide* 6nyway, was able to get a job in okyo and few months after without knowing that he was actually keeping tab of the money that he has spent on me getting to ;apan and while was looking for a job. Ine day he surprised me and showed me a list of the amount owe him up to the last centavo. got annoyed and told him he doesnDt have the right to make a tab and suddenly tell me owe him that much. 6fter that argument he stopped and told me donDt have to pay it anymore and told him donDt owe him anything but he owes me a lot because he is the guilty party in this separation. 4ow, have boyfriend and our marriage is annulled. am still here in okyo and working. he kids were staying with my family in the Philippines. 'y mother past away two years ago and my father si diabetic and has high blood pressure. !espite the annullment am in good terms wG my inlaws. 'y exhusband give child support (<#,###yen per kid). his year agreed that the kids can stay wG his family for a year or two while Dm waiting for my &anadian visa. Before he would be sending me 5#,### yen per month for child support for the % kids. But because the kids are now wG his family. @e wonDt be sending me the child support but send it directly to his family and he is asking me to help him financially. @e has a livein girlfriend now and she is % months pregnant. 4ow my uestion is, after all he did to me, can he do that ask ': to help him financially for the child support* -hat if donDt give him any financial help he was the guilty
party anyway, will be legally in trouble* -ill he have a case against me if donDt give any* /orry for the long story. 6pril "5, <##H $7%# P'
6tty. Aerry . Aalacio said... Please read the court decision in your declaration of nullity case. hat court decision outlines what obligations (financial, custody, etc) you and your exhusband have towards your children. 6pril <#, <##H 57J= 6'
60I !:46 &4& said... Aood !ay /ir, -e really need your advise..'y cousin has % children with his ex girlfriend a "< year old girl and twin boys age H.hey are not married, the twins is after his name. 6fter they broke up H yrs ago the family of the girl didnt allow my cousin to visit his children even the mother dont let him visit their children. 'y cousin is jobless got depressed and rehabilitated due to alcoholic addiction, neither his father and siblings didnt allow them to visit the children, my cousin got out from rehab center and tried to visit his children again but still they keep the children far from him. they found out that the mother of his children got married and has < children from her husband and the sad part of it she intruduce the guy as the father of my cousins % children. he guy is working but the mother is not. -ith these situation what rights does my cousin have to his children* @e is not after the custody because he cant afford since he is jobless, can he borrow the children for at least " overnight stay with him once in a while* !oes his siblings and father who are capable of helping his children with their needs have the right to get a custody or a visitation rights. !oes the chil dren has the right to know who their father really is*....hank you hope you can help us soon. tin 'ay #=, <##H "<7#= P'
6tty. Aerry . Aalacio said... Please read my egal 3pdates post titled 8>isitation rights over illegitimate children? (look for the link in the sidebar) he issue of visitation rights and support are separate. 6s you can read in this post (F>isitation rightsF), your cousin has these rights and for your children to know you as their biological father. f your cousin and the children1s mother cannot agree, then your cousin will have to go to court to let it decide on the terms and conditions of his visitation rights. “*oes his siblin"s and father who are capable of helpin" his children with their needs ha2e the ri"ht to "et a custody or a 2isitation ri"hts.” t is only your cousin (the children1s father) who has visitation rights. Eour cousin1s siblings and parents do not have these rights. 'ay #$, <##H $7#< 6'
6nonymous said... dear atty... good day. nagbabakasali na matulungan nyo ako sa sitwasyon ko. ganito kasi ako noon, from the celebration of our marriage <##%(civil in 'anila &ity @all), i stand as the breadwinner for my husband and an unborn child. we lived in his parents house, i sent him to finish his college educ. (he was turning in
syempre, sinama ko yung panganay. hindi pa ako nakakapanganak, pinuntahan ako sa parents ko at nakikipagayos makipaghiwalay. so wala na kaming nagawa. nung manganak ako, wala sya, % days passed before he came to the hospital. at inaway away naman ako ng parents nya dahil ang gusto nila, sa kanila na daw yung panganay dahil may aalagaan na uli akong bago. (what kind of thinking is that*) at first, nakukuha nila yung panganay kung kelan nila gusto, kahit umuulan at ibabalik sa akin ng may sakit, dahil dun kaya hindi na ako pumayag. hindi ko naman sila pinagbawalan dumalaw. hindi sila kuntento dun. nagfile sila against me, Frotative custodyF over minor children... after disowning my bunso* i n terms of support, he only give what he wants, parang relief goods sa evacuation center, noodles, sardinas, toothpaste and others i call junks because it hurts my feeling as a mother seeing him treating my kids beggar. he never gave money. and now my panganay is turning = years old, iDm afraid he might get what he wants. gusto nya kasing madala kung saan nya gustuhin ang panganay for his parents (the first and only apo). he, himself, dont h ave any FamorF sa bata... just treating the child a toy or a display or a trophy. heDs not even a good example as a person dahil sa harap mismo ng mga anak ko, minumura nya ang tatay ko. at lahat sa petition nya ay kabaligtaran ng totoong nangyari. what should i do to get spousal support* hindi naman sa masamang motibo, mababawi ko ba ang pinagpaaral ko sa kanya para naman maibigay ko sa mga bata* anong gagawin ko para matapos na ang paghihirap ko sa kanya* how will i fight for justice* ;une #<, <##H %7%H P'
6tty. Aerry . Aalacio said... Please read my post 8/upport for abandoned woman and family? (look for the li nk in the sidebar) or download from my +amily 'atters website the free P!+ newsletter dated ssue no. ## ;uly %", <##$ F+inancial support for abandoned woman and her childrenF. :ssentially, through a Protection Irder, the court will order your husband and his employer to set aside a certain percentage of h is salary to be remitted directly to you and your children on a monthly basis. f your husband andGor his employer fail to do so, they can be charged with contempt of court. he amount of support is bala nced between the necessities of the person asking for support and the financial capability of the person from whom support is being asked.
o settle the issue of custody or the parental visits, you have to file a petition in court asking it to set the terms and conditions your husband can have custody of your children. Eou also have the option of filing 26 H<5< cases against your husband (please read my 26 H<5< posts9 look for the links in the sidebar). @usbands and wives are obliged to support each other. t is doubtful if you can have the money you spent for your husbandDs college studies reimbursed to you. +or free legal assistance, please contact the !I; 6ction &enter. he !I;6& acts on complaints, reuests for assistance and legal ueries of walkin clients of the !I;. +or legal assistance please visit the !epartment of ;ustice 6ction &enter (!I;6&) 'ain Iffice, Around +loor, 'ultiPurpose Building, Padre +a ura /treet, :rmita, 'anila9 elephone no7 J<%$$"9 :mail 6ddress7 dojacNdoj.gov.ph or visit any 2egionalGProvincialG&ity Prosecution Iffices in your town or city. Eou can also try to seek help from the /6A64 (/entro ng 6lternatibong ingap Panligal) 'anila, AG+ @offner Building, /ocial !evelopment &omplex, 6teneo de 'anila 3niversity, oyola @eights, MueCon &ity, Philippines9 el. (5%<) <55##" loc. $J$$5#, elefax7 (5%<) <55"<9 :mail7 saliganNsaligan.org9 -ebsite7 www.saligan.org ;une #, <##H "#7<" 6'
dali"H55 said... dear atty, my girlfriend has a malaysian husband, they are not yet divorced but due to his continued affairs my gf has moved back to phlippi nes from malaysia, her husband constantly threatens to come to the philipinnes and take her son away from her. &ould you please advise her as to his rifghts to do this. @ow does malaysian law stand up in the philipines. s he just trying to scare her or is it possible that he is correct and he can coe to take her son from her* hank you very much in advance of your responce. Eours sincerly an ;uly "J, <##H %7# P'
6nonymous said... !ear attorney, Aood day po. Kailangan kopo sana ng advice or opinon nio kung ano po ang dapat kong gawin.. 'arried na po kami ng husband ko for J years, pero nag decide na po kami na mag hiwalay na coC di na po talaga kami magkasundo. 4agkaron ako ng affair sa married man. apos na po yun bago ko pa man cia maging bf.6lam po ng asawa ko ang past ko bago pa kami ikasal.pero sa loob po ng na taon ng pagsasama namin madalas po na binubugbog nia ko at sinasabihan ng masasamang salita dahil sa pangit kong nakaraan.agi po niang iniinsist na nanlalake ako kahit hindi naman. iniis ko po yun sa paniniwalang nagkakaganun lang cia kasi nga dahil sa past ko.Pinapatawad ko cia everytime na humihingi cia ng tawad at sinasabing di na mauulit pang muli.Pero nung mangyari pa po ulit yun, gumawa cia ng sulat sa magulang ko na ipakulong na cia pag naulit pang saktan nia ko.@indi na nga po nia ko nasasaktan pero patuloy pa din po ang mga masasakit na salita na sinasabi nia sa akin. 6ng problem ko po ngaun ay kung may karapatan po ba ako na mag file ng custody para sa akin ang anak ko na < years old lang*3sapan po namin na tuwing week end sa kanya pero di po natutupad kasi lagi din nia kinukuha ang anak ko sa tuwing gusto nia. agi po ciang nag iinom at puro barkada.-ala po kaming trabaho pareho pero may business po kami na pinatayo ng magulang nia.. dun po kami kumukuha ng pangsustento sa anak namin.6t savings para sa anak namin.4gayon po ako lang ang nag mamanage ng business namin kasi nasa lupa po namin yun.Pede po bang mag file ako ng child custody or pananakit sa akin kahit matagal na po yung ngyari*. aware po ang lahat na ginagawa sa akin yun ng asawa ko.. sana po matulungan nio ako.. ;uly "5, <##H ""7J% 6'
6tty. Aerry . Aalacio said... Eour child is below seven and so custody belongs to you as the mother. f the acts of violence were committed 6+:2 'arch <## (when 26 H<5< 6nti>iolence 6gainst -omen and their &hildren 6ct of <## became effective), then you can file an 26 H<5< case against your husband. Please take note however that there is a prescriptive period of four years within which to file the case. his means that within four years after the acts of violence were committed, the case must be filed. Beyond the four year period, you
can no longer file the case. +or example, if the violence took place in 6pril <##, then it can no longer be filed today. /eek the help of the -omen and &hildren1s desk Ifficer of the nearest P4P /tation in filing a case against your husband. 3nder 26 H<5<, you can ask the court to issue a Protection Irder so that your husband can be forced to leave your conjugal dwelling and to stay away from you and your child. Please read my 26 H<5< posts (look for the links in the sidebar). 6sk the help of the !/-! in your town or city in filing for a Protection Irder under 26 H<5<. ;uly "=, <##H H7#% 6'
6tty. Aerry . Aalacio said... an, he son is 'alaysian in citiCenship since his father is 'alaysian. 6s to the laws regarding his custody, it is 'alaysian law that will prevail. Please consult other lawyers who may have opinions different from mine. +or free legal assistance, please contact the !I; 6ction &enter. he !I;6& acts on complaints, reuests for assistance and legal ueries of walkin clients of the !I;. +or legal assistance please visit the !epartment of ;ustice 6ction &enter (!I;6&) 'ain Iffice, Around +loor, 'ultiPurpose Building, Padre +a ura /treet, :rmita, 'anila9 elephone no7 J<%$$"9 :mail 6ddress7 dojacNdoj.gov.ph or visit any 2egionalGProvincialG&ity Prosecution Iffices in your town or city. ;uly "=, <##H H7"5 6'
6nonymous said... @i, i would like to ask about my niecesD situation and reuest your help on what options we can explore. 'y sisterDs husband has been having affairs with different women, although not simultaneously. he recent one was exposed by the other woman herself, with photos and friends to prove their affair. 'y eldest niece saw the photo and having heard her parentsD discussion over it has affected her psychologically. /he verbally told her mom that itDs ok if
her mom decides to kick her dad out, sensing that the issue may a ffect her momDs pregnancy. o make the story short, my sister did not kick her husband out and since the revelation she has been focusing more on her husband than the psychological effect on her daughter (her performance in school has deteriorated and she has been telling people how bothered she was that her dad had his arms wrapped around another woman). o make matters worse, her husband has been feeding negative things to my niece regarding her grandparents (my parents) and the rest of our family. @e even forbids my niece from going to my parentDs house or going with my mom. -e can see that my niece is getting very confused as she is very close to my mom and she is being forbidden to be with her all of a sudden. /he has now been showing episodes of tantrums, crying violently to tell my mother she can no longer come to visit (my mom and dad live a few houses away from my sisterDs house and my mom is the one who accompanies my niece to and from the school). his is very confusing for a child of = years. 'y sister, instead of mediating, sides with her husband and allows him to dictate every decision in their family no matter how detrimental to their daughter. 6s a backgrounder, my brother in law has been involved in and fired for mishandling of finances in his pr evious jobs. 6side from womaniCing, he also is a financial burden as he even spends his childrenDs money to buy branded clothing. Ince, some people from the barangay went to their house to collect money he owed a woman and left his wife to face them. 'y niece was likewise home to witness the confrontatoin. @e has been making loans under my sisterDs name and spends the money for his own pleasure. 6ll loans are being left to my sister for settling. s there any way that we can contest the custody of the chid, knowing very well that the child will choose her grandmother and that both parents are psychological not capable of protecting her* &an or any of my other siblings file adoption since we are all living comfortably abroad* f these options are not possible, can we reuest temporary custody of my niece till her p arents are cleared psychologically* /eptember #, <##H 7< P'
6tty. Aerry . Aalacio said... Please surf to my website www.familymatters.org.ph and read 82ule on Auardianship of 'inors? 6.'. 4o. #%#<#J/& and 82ule on &ustody of 'inors and -rit of @abeas &orpus in relation to &ustody of 'inors? 6.'. 4o. #%##/&. Please also read my post 8Procedures in adoption under 26 $JJ
traumatic situation. hese are legal options which you andGor your mother should weigh very carefully. Eour mother can try to get the child to counseling. /he can try to contact Ptr. &lem Auillermo and his wife, wellknown family counselors, through their nightly radio program 8@eartline? aired over !06/ =#< KhC, "#7%# to "<. think the !06/ tel. no. is H<""J<. he program is available on the nternet at http7GGwww.febc.phGstationsGdCasGindex.html . Ptr. &lem1s office is in the Back to the Bible Building, corner of -est 6venue and :!/6 (opposite /' &ity 4orth :!/6). f you prefer a psychiatrist to counsel your niece, please try to contact !r. 2andy !ellosa at http7GGwww.randydellosa.comG /eptember #=, <##H =7J$ 6'
6nonymous said... !ear 6tty, am a single mom of an $ month child. s it possible to ask a support from his father even if heDs living abroad. @e has the dual citiCenship of +ilipino and British. just want to be fair enough for my son since his father have % children in 3K and m pretty sure what my son is receiving right now is not as what the rule says of an illegitimate children. f its possible where will go* Ictober #", <##H J7" P'
6tty. Aerry . Aalacio said... Please read my post 8/upport for financial support for abandoned woman and family? (look for the link in the sidebar). 2ead also the comments and my replies to the comments. Ictober #=, <##H H7J# 6'
6nonymous said...
Areetings 6tty. would just like to ask, can file a case for custody sa < children ko, hindi kami kasal ng kinakasama ko and foreigner sya, since nalaman ko na may babae sya na binabahay ngayon nakikipaghiwalay nako sa kanya pero gusto ko makuha yung custody ng dalawang anak namin,kailangan ko lang po ng legal advice para alam ko yung hakbang nagagawin ko. 4ovember
6tty. Aerry . Aalacio said... Parental authority and custody belong to you since your children are illegitimate. Eou can file a petition for Protection Irder under 26 H<5< in order to regain custody of your children. Please read my 26 H<5< posts (look for the links i n the sidebar). he following are offices or agencies you can ask help from. he addresses are for 'etro 'anila but you can try to contact their regional offices (specially the 4B). *epartment of Social elfare and *e2elopment 4*S*5 Crisis /nter2ention 6nit 4C/65 +ehabilitation 6nit Tel. No.: 4%$5 738;3< NC+ 6"nayan" (a"asa0 =e"arda0 >anila Tel. Nos.: 4%$5 738;?7 to ? (hilippine National (olice 4(N(5 omen and Children@s Concern *i2ision 4CC*5 Tel. No.: 4%$5 7$3%8%? loc. 38% Call or tet ??7 4(&T+,= ??75 National Aureau of /n2esti"ation 4NA/5 Biolence &"ainst omen and Children@s *es! 4B&C*5 Tel. Nos.: 4%$5 <$3$3? loc. 38%3 *, (ublic &ttorney@s ,ffice omen-s *es!0 Tel. Nos.: 4%$5 9$99%?%) 9$9983; to 37 4ovember <$, <##H %7%# P'
6nonymous said... Aoodmorning 6tty, just need your opinion about this. f a mother has the custody of the child and the parents are not legally separated by court, they just distant themselves because the guy has an affair
with other girls, too many to count by they are in different places and he has another child to one of his affairs. /o he falls under 6dulteryG&oncubinage. -hen the mother had the child, she was still with the g uy so in the birth certificate the Fso calledF father acknowledge the child and lately the mother knew that the guy have different affairs with other girl. 4ote that they are not married and they are separated for almost years. he mother didnDt accept any support coming from the guy and she raised the child with the help of her parents and relatives. 'y uestion is that, the child has his fatherDs surname. he mother wants to have her surname used by his child. -hat are the things needed so that the child can have the mothers surname* hank you and have a good day !ecember <#, <##H ""7#" 6'
6tty. Aerry . Aalacio said... Please read my post “hat surname should ille"itimate children use1 (roblems and issues with +& 9$<< and its implementin" "uidelines” (look for the link in the sidebar). +irst of all, in terms of parental authority and custody, the child is illegitimate and so sole parental authority and custody belong to the mother. his is true even if the child is using the biological father1s surname. t will be very difficult to change the child1s surname from that of the father to the mother1 s surname. Ine, 26 H
!ecember <%, <##H H75 6'
!utch<% said... 'y partner and have decided to separate after % years of living together. -e are not married and we have < daughters who are % years old and < years old. Both our daughters are carrying my surname with my consent. /he works for a cruise liner based in 6merica and this ;anuary she will be leaving again for another "# months duty, this will be her second trip. work in a call center in alabang. -hat she wants is when she leaves again that our daughters stay with her mother in cavite. on the other hand would like the kids to stay with me in paranaue while she is away. understand that she has priority over kids since they are below = years old 'y uestion is, when she leaves, does she have the right to deny my claim as the father and not have custody of the kids* understand when she gets back then she has priority and would willingly give back the children. 6nd f am unable to have custody of the kids, what are my options or rights of visitation -hat are the laws on the family code that can be used to apply to our situation and what are the laws that apply to me as a father* @oping for your legal advice. hank Eou -arren ;anuary
6tty. Aerry . Aalacio said... -arren, hat she wants is when she lea2es a"ain that our dau"hters stay with her mother in ca2ite. / on the other hand would li!e the !ids to stay with me in paranaDue while she is away. / understand that she has priority o2er !ids since they are below 7 years old” O" Eour children are illegitimate and so under 6rticle "=5 of the +amily &ode, sole parental
authority belongs to the mother. :ven if your children are using your surname in their birth certificates with your consent, they remain illegitimate. :ven if your children reach seven years of age and above, they will remain under their mother1 s parental authority. Parental authority (which includes custody and the right to make all decisions regarding the children) belongs to the mother. /he can thus decide as to which person she can entrust the children while she is away. O< -hat you have as the father has is visitation right. Please read my post on 8>isitation rights over illegitimate children? (look for the link in the sidebar). f you and the mother cannot agree on the terms and conditions of the visitation, you will have to file a petition asking the court to set such terms and conditions. +ebruary #", <#"# "#7JH 6'
'onday, 6ugust #<, <#"#
@ow do courts determine which parent has the right of custody of the children in legal separation, annulment or declaration of nullity* 7lease read my pre$ious posts on the issue of custody0 &an a mother be deprived of custody of her child* &ustody battles over children7 what determines fitness of a parent over another* &ustody battles over children between grandparents and a father or mother he !upreme "ourt 'ule on 7ro$isional rders 5.@. No. *-((-(-!" enumerates the procedures that our 6amily "ourt #udges must follow in deciding the issue of custody in relation to petitions for legal separation, annulment of $oidable marriage or declaration of nullity of marriage. 7lease take note that0 %(/ his 2ule became effective in <##% or before 26 H<5< 86nti>iolence 6gainst -omen and heir &hildren 6ct of <##? became effective in <##9 and %/ his 2ule applies specifically to petitions for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation. 26 H<5< has its own mplementing 2ules and 2egulations and 2ule on >iolence 6gainst -omen and heir &hildren 6.'. 4o. #"#""/&. he speakers (active and retired +amily &ourt judges) in the '&: seminars am attending say that they also use the 2ule on Provisional Irders as
guidelines in granting orders in 26 H<5< cases whenever appropriate.
@ain guideline for award of custody0 Best interests of the child !ection ) of the !upreme "ourt 'ule on 7ro$isional rders states0 4n determining the right party or person to whom the custody of the child of the parties may be awarded pending the petition, the court shall consider the best interests of the child and shall gi$e paramount consideration to the material and moral welfare of the child. he court may likewise consider the following factors7 (a) the agreement of the parties9 (b) the desire and ability of each parent to foster an open and loving relationship between the child and the other parent9 (c) the child1s health, safety, and welfare9 (d) any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent9 (e) the nature and freuency of contact with both parents9 (f) habitual use of alcohol or regulated substances9 (g) marital misconduct9 (h) the most suitable physical, emotional, spiritual, psychological and educational environment9 and (i) the preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit.
rder of preference in the award of custody 4n keeping with 5rticles () and (A of the 6amily "ode, !ection A of the !upreme "ourt 'ule states0 he court may award provisional custody in the following order of preference7 (") to both parents jointly9 (<) to either parent taking into account a ll relevant considerations under the foregoing p aragraph,
especially the choice of the child over seven years of age, unless the parent chosen is unfit9 (%) to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or disualified9 () to the eldest brother or sister over twentyone years of age, unless he or she is unfit or disualified9 (J) to the child1s actual custodian over twentyone years of age, unless unfit or disualified9 or (5) to any other person deemed by the court suitable to provide proper care and guidance for the child. he custodian temporarily designated by the court shall give the court and the parents five days notice of any plan to change the residence of the child or take him out of his residence for more than three days provided it does not prejudice the visitation rights of the parents. !ection of the 'ule states that =appropriate $isitation rights shall be pro$ided to the parent who is not awarded pro$isional custody unless found unfit or disCualified by the court?.
tty laserna !uvenile "usti#e and $elfare a#t %he !uvenile !usti#e and Welfare Coun#il &!!WC' under the Department of !usti#e has issued the implementin( rules and re(ulations of )** +o* ,344- or the .!uvenile !usti#e and Welfare #t of 2//0*
t #ites rti#le 4/ of the nited +ations Convention on the )i(hts of the Child- $hi#h provides that the members states have the duty to re#o(nie .the ri(ht of every #hild alle(ed as- a##used of- ad"ud(edor re#o(nied as- havin( infrin(ed the penal la$ to be treated in a manner #onsistent $ith the promotion of the #hild5s sense of di(nity and $orth- ta6in( into a##ount the #hild5s a(e and desirability of promotin( his7her reinte(ration8 that .$henever appropriate and
desirable- the State shall adopt measures for dealin( $ith su#h #hildren $ithout resortin( to "udi#ial pro#eedin(s- providin( that human ri(hts and le(al safe(uards are fully respe#ted8 that the member states .shall ensure that #hildren are dealt $ith in a manner appropriate to their $ell9bein( by providin( for- amon( others- a variety of disposition measures su#h as #are- (uidan#e and supervision orders- #ounselin(- probation- foster #are- edu#ation and vo#ational trainin( pro(rams and other alternatives to institutional #are*
main feature of )** +o* ,344 is that CC are vre;uired to underso a .diversion pr(ram $hi#h refers to .an alternative- #hild9 appropriate pro#ess of determinin( the responsibility and treatment of a #hild in #on
nder )** +o* ,344- ."uvenile "usti#e and $elfare system is de>ned as .a system dealin( $ith #hildren at ris6 and #hildren in #on
n addition to the basi# human ri(hts of a #itien under rt* &?ill of )i(hts' of the 1,@A Constitution- as implemented by relevant la$s- every #hild in #on
1* not to be imposed a senten#e of #apital punishment or life imprisonment- $ithout the possibility of release8 2* to be detained or imprisoned only as a last resort- $hi#h shall be for the shortest appropriate period of time8
3* to be separated from adult o=enders at all times- to be #onveyed separately to or from the #ourt durin( #ourt hearin(s- and to a$ait the hearin( of his7her o$n #ase in a separate holdin( area* 4* to bail and re#o(nian#e- in appropriate #ases8 B* to testify as a $itness in his7her o$n behalf under the rule on eamination of a #hild $itness8 0* to have his7her priva#y respe#ted fully at all sta(es of the pro#eedin(s8 A* to have restri#tions on his7her personal liberty limited to the minimum- and $here dis#retion is (iven by la$ to the "ud(e to determine $hether to impose >ne or imprisonment- the imposition of >ne bein( preferred as the more appropriate penalty8 @* to automati# suspension of senten#e8 ,* to probation as an alternative to imprisonment- if ;uali>ed under the probation la$8
%he #on#ept of .restorative "usti#e (uides the "uvenile "usti#e and $elfare sysem* t is a prin#iple that re;uires .a pro#ess of resolvin( #on
spe#ial pro#edure for ta6in( #hild into #ustody is mandated by )** +o* ,344*
rom the moment the #hild is ta6en into #ustody- the la$ enfor#ement oE#er shall immediately notify the #hild5s parents7(uardians- the lo#al so#ial $elfare and development oE#er &SWDF'- and the Gubli# ttorney5s FE#e of the #hild5s apprehension- not later than ei(ht &@' hours after apprehension*
fter eplainin( to the #hild in simple lan(ua(e and in a lan(ua(e or diale#t that he7she #an understand the reason for pla#in( the #hild
under #ustody- the o=ense that he7she alle(edly #ommitted- and his7her #onstitutional ri(hts- the la$ enfor#ement oE#er shall immediately start the determination of the a(e of the #hild abd ta6e the #hild immediately to the proper medi#al and health oE#er for a thorou(h physi#al and mental eamination and thereafter turn over the #ustody of the #hild to the lo#al so#ial $elfare and development oE#er &SWDF' or other a##redited non9(overnment or(aniations immediately but not later than ei(ht &@' hours*
#hild in #on
%he la$ enfor#ement oE#er- spe#i>#ally from the Women and Children Grote#tion Des6 $here present- shall ta6e the statement of the #hild durin( the initial investi(ation in the presen#e of the #hild5s #ounsel of #hoi#e or in the absen#e thereof- a la$yer from the Gubli# ttorney5s FE#e- his parents- (uardian- or nearest relative- as the #ase may be8 and the lo#al so#ial $elfare and development oE#er* n the absen#e of the #hild5s parents- (uardianor nearest relative- and of the SWDF- the investi(ation shall be #ondu#ted in the presen#e of a representative of an +HF or faith9 based (roup- or a member of the ?CGC*
n ta6in( the statement of the #hild- the la$ enfor#ement oE#er shall observe the follo$in( (uidelines:
1* %he investi(ation shall be #hild friendly and be #ondu#ted in a non9intimidatin( manner* 2* %he intervie$ of the #hild shall be #ondu#ted in a separate intervie$ room to ma6e the #hild feel #omfortable and free to epress him7herself* 3* %he la$ enfor#ement oE#er shall use simple and understandable lan(ua(e in ta6in( the statement of the #hild durin( the initial investi(ation* 4* %he la$ enfor#ement oE#er shall allo$ the SWDF- or the persons ta6in( his7her pla#e as above enumerated- to a#tively assist in #ondu#tin( the initial investi(ation*
B* %here should be enou(h priva#y to avoid unne#essary interruptions- distra#tions and7or parti#ipation from non9parties that #ould humiliate or ma6e the #hild un#omfortable* 0* %he $ritten statement to be prepared shall re
%he initial investi(ation shall be #ondu#ted in the best interest of the #hild and in a manner $hi#h allo$s the #hild to parti#ipate and to epress him7herself freely*
%he la$ enfor#ement oE#er #ondu#tin( the initial investi(ation shall ensure that all statements si(ned or thumbmar6ed by the #hild durin( investi(ation shall be $itnessed by the #hild5s parents or (uardian- the SWDF- or if not present- any other so#ial $or6er- or #ounsel in attendan#e- $ho shall aE his7her si(nature to the said statement*
n the #ase of a #hild $ho is above >fteen &1B' years of a(e but belo$ ei(hteen &1@' years of a(e- the la$ enfor#ement oE#er shall refer the re#ords of the #hild to the SWDF for an assessment if the #hild a#ted $ith dis#ernment*
fter the initial investi(ation- the la$ enfor#ement oE#er shall refer the #ase of the #hild to the SWDF for intervention in a##ordan#e if the #hild is 1B years old or belo$ or above 1B but belo$ 1@ years of a(e and a#ted $ithout dis#ernment*
Diversion is re;uired if the #hild is above 1B but belo$ 1@ years of a(e and a#ted $ith dis#ernment and the o=ense #ommitted #arries an imposable penalty of not more than si &0' years of imprisonment*
%he re#ord of the #ase shall be referred the prose#utor or "ud(e if the #hild is above >fteen &1B' but belo$ 1@ years of a(e and a#ted $ith dis#ernment and the o=ense #ommitted #arries an imposable penalty of more than si &0' years of imprisonment*
n all #ases- the la$ enfor#ement oE#er shall turn over the physi#al #ustody of the #hild to the SWDF $ithin ei(ht &@' hours from apprehension- as re;uired under Se#tion 21&i' of )** +o* ,344even if the la$ enfor#ement oE#er has not yet ehausted all measures to determine the a(e of the #hild and even if the initial investi(ation has not yet been terminated*
n the event a #hild $hose #ustody is turned over by the la$ enfor#ement oE#er is 1B years old or belo$- the SWDF shall ta6e all measures to release the #hild to the parents or (uardians- or to any of the persons or or(aniations auithoried by )** +o* ,344and pro#eed $ith the development of appropriate pro(rams as provided by the said la$*
rom the time he7she ta6es #ustody of the #hild in #ondentiality* Garti#ularly- the la$ enfor#ement oE#er shall:
&a' se a system of #odin( that provides aliases for #hildren ta6en into #ustody8
&b' Maintain a separate lo(boo6 for #hildren in #on
&#' I#lude the publi#- parti#ularly the media- from the area $here the #hild is bein( held in #ustody pursuant to Se#tion 43 of the #t8
&d' +ot provide any detail or information to the publi#- parti#ularly the media- that shall lead to the identity of the #hild8
&e' Jeep the results of the medi#al eamination #on>dential8 and
&f' Mar6 the re#ords of the #hild and the report on the initial investi(ation as #on>dential*
%he prohibited a#ts $hen in #ustody of #hild are:
1* #hild in #onrearm- $eaponhand#u=s or other instruments of for#e or restraint- unless absolutely ne#essary and only after all other methods of #ontrol have been ehausted and have failed* A* %he la$ enfor#ement oE#er shall avoid the use of violen#e or unne#essary for#e on the #hild in #on
s to the matter of #riminal responsibility- pursuant to Se#tion 0 of )** +o*,344- the follo$in( shall be eempt from #riminal liability:
1* #hild 1B years of a(e or under at the time of the #ommission of the o=ense8 2* #hild above 1B years but belo$ 1@ years of a(e $ho a#ted $ithout dis#ernment at the time of the #ommission of the o=ense*
%he eemption from #riminal liability of #hildren under thela$ does not in#lude eemption from #ivil liability- $hi#h shall be enfor#ed in a##ordan#e $ith eistin( la$s*
%he .presumption of minority rule under Se#* A of )** +o* ,344 provides that the #hild in #on
Se#* A of )** +o* ,344 (ives .any person #ontestin( the a(e of the #hild in #onlin( of the information in any appropriate #ourt &the ri(ht' to >le a #ase in a summary pro#eedin( for the determination of a(e before the amily Court $hi#h shall de#ide the #ase $ithin t$enty four &24' hours from re#eipt of the appropriate pleadin(s of all interested parties* f a #ase has been >led a(ainst the #hild in #onle a motion to determine the a(e of the #hild in the same #ourt $here the #ase is pendin(* Mean$hile- the pro#eedin(s on the main #ase shall be suspended* n all pro#eedin(s- la$ enfor#ement oE#ersprose#utors- "ud(es and other (overnment oE#ials #on#erned shall eert all e=orts at determinin( the a(e of the #hild in #on
Se#* 2/ of )** ,344 provides that if it has been determined that the #hild ta6en into #ustody is 1B years old or belo$- the authority $hi#h $ill have initial #onta#t $ith the #hild has the duty to .immediately release the #hild to the #ustody of his7her parents or (uardian- or in the absen#e thereof- the #hild5s nearest relative and .notify the SWDF for the determination of appropriate intervention and prevention pro(rams for the #hild*
nder )ule 31*b of the ))- f the parents- (uardians or nearest relatives #annot be lo#ated- or if they refuse to ta6e #ustody of the #hild- the #hild may be released by the authority havin( initial #onta#t $ith the #hild to any of the follo$in(:
&1' duly re(istered non9(overnmental or(aniation- i*e*- duly li#ensed and a##redited by the DSWD8
&2' faith9based or(aniation8
&3' baran(ay oE#ial8
&4' member of the ?CGC8
&B' n SWDF8 or
&0' %he DSWD $hen and $here appropriate*
f parents- (uardians or relatives are unable to ta6e #ustody of the #hild due to mental or physi#al in#apa#ity or in#ar#eration- the #hild shall be referred to alternative pla#ement su#h as foster homes- in addition to $hat has been provided in the #t*
mmediately after bein( noti>ed of the apprehension of the #hild >fteen &1B' years old or belo$- the SWDF- under )ule 31*#- shall:
&1' Grepare a #ase study report on the #hild8 and
&2' Determine the appropriate intervention and prevention pro(rams in #onsultation $ith the #hild and the person havin( #ustody over the #hild*
%he SWDF shall also determine if the #hild is abandonedne(le#ted or abused by his7her parents for purposes of >lin( a petition for involuntary #ommitment if ne#essary* f the safety of the #hild is in dan(er in vie$ of the alle(ed #ommission of the o=ense- the SWDF shall en#oura(e the parent or (uardian of the #hild to re;uest for temporary #ustody of the #hild to the DSWD or li#ensed and a##redited +HFs* n the event the parent or (uardian does not a(ree to the re;uest for temporary #ustody of the #hild- the SWDF shall #arefully revie$ the #ase of the #hild and >le a petition for involuntary #ommitment $hen san#tioned by la$- in a##ordan#e $ith G*D* 0/3 and the SC )ule on Commitment of Children*
petition for involuntary #ommitment may be >led by the SWDF $ith the te#hni#al assistan#e of DSWD- or by the DSWD- per )ule 32if:
&a' %he #hild in #on
&b' %he parents do not #omply $ith the intervention and prevention pro(rams as determined under Gart K of these )ules*
#hild in #on
&a' .bandoned $hen the #hild has no proper parental #are or (uardianship or $hen the #hild5s parents or (uardians have deserted him7her for a period of at least si &0' #ontinuous monthsas provided in rt* 141&2'- %itle K of G*D* 0/38
&b' .+e(le#ted $hen his7her basi# needs have been deliberately unattended or inade;uately attended as provided in rt* 141&3' of G*D* 0/38 or
&#' .bused $hen upon the evaluation of the SWDF- the #hild is found to be maltreated- $hether habitual or not- as de>ned in Se#tion 3&b' of )epubli# #t +o* A01/- or the .Spe#ial Grote#tion of Children (ainst buse- Iploitation and Dis#rimination #t [.)** A01/]*
%he >lin( of the petition for involuntary #ommitment shall be done in a##ordan#e $ith the provisions of %itle K- Chapter 1 of G*D* 0/3 and the SC )ule on Commitment of Children*
%he #hild in #onfteen &1B' but belo$ ei(hteen &1@' years of a(e shall be eempt from #riminal responsibility- unless he7she a#ted $ith dis#ernment* ?ein( eemptthe #hild shall be dealt $ith in the same manner as a #hild $ho is
belo$ the a(e of #riminal responsibility as provided in )ule 3/ and Gart K of these )ules* &)ule 33*a'*
Ger )ule 43*b- %he SWDF- after the la$ enfor#ement oE#er refers the re#ords of a #hild $ho is >fteen &1B' years old or above but belo$ ei(hteen &1@' years old as provided in )ule 2B*f- shall prepare a report indi#atin( an assessment if the #hild a#ted $ith dis#ernment for the purpose of determinin( $hether to pro#eed $ith intervention or $ith diversion*
fter ma6in( an assessment- the SWDF shall prepare a report sho$in( the basis for the assessment if the #hild a#ted $ith or $ithout dis#ernment* %his report shall be submitted to the la$ enfor#ement oE#er handlin( the #ase of the #hild* fter re#eipt of the report by the SWDF- the la$ enfor#ement oE#er shall #on#lude the initial investi(ation and refer the #ase of the #hild in a##ordan#e $ith )ule 20* &)ule 34*d'*
nder )ule 34*e- f after #onsideration of the initial assessment that the #hild $ho is above >fteen &1B' but belo$ ei(hteen &1@' years of a(e a#ted $ithout dis#ernment- the la$ enfor#ement oE#er refers the #ase of the #hild to the SWDF for intervention- the SWDF has the duty to:
&1' mmediately release the #hild to the #ustody of his7her parents or (uardian- or in the absen#e thereof- the #hild5s nearest relative or to those listed in )ule 31 $hen appropriate8 and
&2' Determine the appropriate intervention and prevention pro(rams for the #hild as provided in Gart K of these )ules* %he intervention pro(rams for the #hild eempt from #riminal liability may in#lude any or a #ombination of the follo$in(- per )ule 3A:
&a' Counselin(8
&b' Geer #ounselin( and life s6ills trainin( and edu#ation8
&#' Grovision of support servi#es to the family- e*(*- parent e=e#tiveness servi#e- livelihood pro(rams- s6ills trainin(s- et#*8
&d' )eferral to other a(en#ies for appropriate servi#es- e*(*edu#ation- health- s6ills trainin(- et#*8 and
&e' ##ess to #hild and youth or(aniations in the #ommunity- su#h as but not limited to the San((unian( Jabataan*
%he intervention pro(rams determined by the SWDF also in#lude pro(rams for the parents and family of the #hild* %he time frame of the intervention pro(rams and the out#ome desired shall be spe#i>ed*
Ger )ule 3,- f the #hild and the parents- (uardian or persons havin( #ustody of the #hild fail to #omply $ith the intervention pro(ramdespite ehaustin( all e=orts to assist them- the SWDF may >le the proper petition for involuntary #ommitment of the #hild pursuant to G*D* 0/3*
nder )ule 4/- diversion refers to an alternative- #hild9appropriate pro#ess of determinin( the responsibility and treatment of a #hild in #on
&a' se of positive measures8
&b' ull mobiliation of all possible resour#es- $hi#h in#lude the family- volunteers- s#hools and other #ommunity institutions8
&#' I=e#tive- fair and humane dealin( $ith the #hild8 and
&d' Gromotion of the $ell9bein( of the #hild*
Ger )ule 41- pursuant to Se#tion 23 of the #t- the #hild in #on
&a' s above >fteen &1B' years but belo$ ei(hteen &1@' years of a(e8
&b' #ted $ith dis#ernment8 and
&#' lle(edly #ommitted an o=ense $ith an imposable penalty of not more than si &0' years of imprisonment if diversion is #ondu#ted at the baran(ay- poli#e or prose#utor5s level- and not more than t$elve &12' years of imprisonment- if diversion is resorted to by the #ourt*
nder )ule 42- as provided under Se#tion 24 of the #t- if the imposable penalty for the o=ense #ommitted is not more than si &0' years of imprisonment- diversion may be #ondu#ted at the:
&a' Jatarun(an( Gambaran(ay level under the Gunon( ?aran(ay as provided in )ule 438
&b' Goli#e investi(ation sta(e under the la$ enfor#ement oE#er as provided in )ule 448 or
&#' n;uest or preliminary investi(ation sta(e under the prose#utor as provided in )ule BB*
f the o=ense $ith the imposable penalty of not more than si &0' years imprisonment is a vi#timless #rime- the diversion pro#eedin(s shall be #ondu#ted by the SWDF in #oordination $ith the ?CGC*
f the imposable penalty for the o=ense #ommitted e#eeds si &0' years of imprisonment but not more than t$elve &12' years of imprisonment- diversion may resorted to only by the #ourt*
ndeer )ule 43- et#*- the rules of the Jatarun(an( Gambaran(ay may apply* #hild in #on
Diversion at the Jatarun(an( Gambaran(ay level shall be #ondu#ted by the upon %a(apamayapa- #haired by the Gunon( ?aran(ay- $ith the assistan#e of the members of the ?CGC- as provided in Se#tion 23 &a' of the #t* %he Gunon( ?aran(ay shall #ondu#t mediationfamily #onferen#in( and #on#iliation and- $here appropriate- adopt indi(enous modes of #on
%he #hild and his7her family shall be present in the #ondu#t of these diversion pro#eedin(s* %he o=ended party may parti#ipate in the diversion pro#eedin(s* %he absen#e of the o=ended party in the diversion pro#eedin(s or his7her disa(reement in its #ondu#t shall not prevent the pro#eedin(s from bein( #ondu#ted* %he Gunon( ?aran(ay shall- ho$ever- endeavor to obtain the parti#ipation and the #onsent of the o=ended party in the formulation of the diversion pro(ram*
Gursuant to Se#tion 2A of the #t- the Gunon( ?aran(ay handlin( the #ase shall- $ithin three &3' days from determination of absen#e of "urisdi#tion or termination of the diversion pro#eedin(s as provided belo$- for$ard the re#ords of the #ase to the:
&1' a$ enfor#ement oE#er or prose#utor L $hen the #hild or the #hild5s parents7(uardian does not #onsent to a diversion* pon the issuan#e of the #orrespondin( do#ument- #ertifyin( to the fa#t that no a(reement has been rea#hed by the parties- the #ase shall be >led a##ordin( to the re(ular pro#ess* &2' Grose#utor or the #ourt L $hen the #ase involves an o=ense $ith an imposable penalty of more than si &0' years imprisonment*
nder )ule 44- diversion shall be #ondu#ted at the la$ enfor#ement level $hen:
&1' fter the #ondu#t of diversion pro#eedin(s at the Jatarun(an( Gambaran(ay level- the #hild or the #hild5s parents7(uardian does not #onsent to a diversion and the Gunon( ?aran(ay for$ards the #ase of the #hild as provided under )ule 43*d &i'8
&2' fter the #ondu#t of the initial investi(ation- the la$ enfor#ement oE#er determines that the #hild is above 1B but belo$ 1@ years of a(e- a#ted $ith dis#ernment and alle(edly #ommitted an o=ense- that is not a vi#timless #rime- $ith an imposable penalty of not more than si &0' years of imprisonment- as provided under )ule 20&2'&a'*
Diversion at the poli#e investi(ation sta(e shall be #ondu#ted by the la$ enfor#ement oE#er $ith the assistan#e of the SWDF- as provided in Se#tion 23&a' of the #t*
%he nature of diversion pro#eedin(s to be #ondu#ted by the la$ enfor#ement oE#er and the parti#ipants therein shall be the same as that under )ule 43*#*
Gursuant to Se#tion 23 of the #t- the la$ enfor#ement oE#er handlin( the #ase shall for$ard the re#ords of the #ase to the prose#utor or "ud(e $hen the #ase involves an o=ense $ith an imposable penalty of more than si &0' years imprisonment8 or the #hild or the #hild5s parents7(uardian does not #onsent to a diversion* %he #ase re#ords shall be for$arded $ithin three &3' days from determination of absen#e of "urisdi#tion or termination of the diversion pro#eedin(s as above stated*
%he prose#utor or "ud(e to $hom the re#ords are referred shall #ondu#t the preliminary investi(ation and determine $hether or not the #hild should remain under #ustody and #orrespondin(ly #har(ed in #ourt*
nder )ule 4 diversion shall be #ondu#ted at the level of the SWDF $hen after the #ondu#t of initial investi(ation- the la$ enfor#ement oE#er determines that the #hild is above 1B but belo$ 1@ years of a(e- a#ted $ith dis#ernment and alle(edly #ommitted a
vi#timless #rime $here the imposable penalty is not more than si &0' years of imprisonment- as provided under )ule 20&2'&b'*
%he SWDF shall meet $ith the #hild and his7her parents or (uardians for the development of the appropriate diversion and rehabilitation pro(ram- in #oordination $ith the ?CGC*
nder )ule 40- $here the imposable penalty for the #rime #ommitted e#eeds si &0' years imprisonment- diversion measures may be resorted to only by the #ourt and $ill pro#eed in a##ordan#e $ith the SC )ules on !uveniles in Con
Ger )ule 4A- the authority #ondu#tin( the diversion pro#eedin(s shall:
&1' Iplain to the #hild and his7her family the ob"e#tive of the diversion pro#eedin(s- the value of diversion and the #onse;uen#e of not under(oin( diversion*
&2' s6 the #hild of the #ir#umstan#es of the o=ense- the motives or purpose of the o=ense and the fa#tors that led the #hild to #ommit the o=ense*
&3' s6 the #hild of his7her personal #ir#umstan#e in#ludin( his7her parents and family- his7her peers and edu#ational status*
&4' Ma6e the #hild in #on
&B' Insure that the #hild understands and realies his7her a##ountability- be remorseful of his7her a#tions and ta6es on the responsibility in repairin( the harm done in lieu of >lin( a formal #ase in the #ourt*
%he authority #ondu#tin( the diversion pro#eedin(s shall also determine if diversion is appropriate and desirable based on the
fa#tors provided in the net )ule* pon a >ndin( that diversion is not appli#able or desirable- the authority handlin( the diversion pro#eedin(s shall issue the #orrespondin( do#ument #ertifyin( to su#h fa#t and shall >le the #ase a##ordin( to the re(ular pro#ess*
%he authority #ondu#tin( the diversion pro#eedin(s shall ensure that the pro#eedin(s are #hild9friendly and sensitive to the needs$elfare and the prote#tion of the ri(hts of the #hild in #on
Diversion pro#eedin(s shall be #ondu#ted in a pla#e $here the identities of the #hild and the parties #on#erned are 6ept #on>dential* %here should be enou(h priva#y to avoid unne#essary interruptions- distra#tions and7or parti#ipation from non9parties that #ould humiliate or ma6e the #hild un#omfortable*
%he DSWD- in #onsultation $ith the Hs parti#ularly CGCs- shall formulate rules and (uidelines that should be follo$ed durin( the diversion pro#eedin(s to prote#t the #hild from #oer#ionintimidation- harm- abuse- or other a#tions detrimental to the #hild* Su#h (uidelines shall ensure that the #hild understands the diversion pro#eedin(s in $hi#h he7she is involved*
Gendin( the #ondu#t of the diversion pro#eedin(s- the #ustody of the #hild shall be (iven to the parents- (uardians- relatives or any other responsible person in the #ommunity- ta6in( into #onsideration the best interest of the #hild in #on
%he #onsent of the #hild and of the parents or (uardian of the #hild shall be obtained in arrivin( at a #ontra#t of diversion* When the #onsent of either is not obtained- the diversion pro#eedin(s shall be terminated and the #ase of the #hild referred in a##ordan#e $ith )ule B1*
%he diversion pro#eedin(s shall be #ompleted $ithin forty9>ve &4B' days*
Diversion pro#eedin(s are deemed terminated $hen:
&1' #ontra#t of diversion has been entered8
&2' %he forty9>ve day period epires $ithout any a(reement rea#hed8
&3' %he #hild or his7her parents or (uardian do not #onsent to a diversion8
&4' %he authority #ondu#tin( the diversion >nds that diversion is not appli#able based on the fa#tors enumerated in the immediately pre#edin( )ule*
nder )ule 4@- a #ontra#t of diversion may be entered durin( the diversion pro#eedin(s $hen the #hild voluntarily admits the #ommission of the a#t as provided in Se#tion 20 of the #t* %he voluntary admission of the #hild durin( the diversion pro#eedin(s shall be only deemed as #onsent to under(o the diversion pro(ram and shall not be #onsidered a plea of (uilt*
ny admission of the #hild shall not be used a(ainst the #hild in any subse;uent "udi#ial- ;uasi9"udi#ial or administrative pro#eedin(s* +either shall the admission be used a(ainst the #hild throu(h denial of privile(es and opportunities- dis#rimination in treatment- or imposition of any form of liability or punishment by reason of su#h admission*
%he #ontra#t of diversion #ontainin( the diversion pro(ram shall be e=e#tive and bindin( if a##epted by the #hild and the parents or (uardian of the #hild* %he #ontra#t shall be in $ritin( and si(ned by the:
&1' Child8
&2' Garents or (uardian of the #hild8
&3' uthority that #ondu#ted the diversion pro#eedin(s &the Gunon( ?aran(ay- the la$ enfor#ement oE#er or the prose#utor'8
&4' Member of the ?CGC assistin( the Gunon( ?aran(ay- in #ases of diversion pro#eedin(s at the Jatarun(an( Gambaran(ay level8 and
&B' SWDF in #ases of diversion pro#eedin(s by the la$ enfor#ement oE#er or by the prose#utor*
%he #ontra#t of diversion shall #ontain the individualied diversion pro(ram and shall stipulate the ri(hts- responsibilities or a##ountabilities of the #hild- the parents or (uardian and the o=ended party- $hen appli#able* %he #ontra#t of diversion #onsiders as the responsibility or a##ountability of the #hild to restore the harm done in vie$ of the o=ense #ommitted* s su#h- the authority #ondu#tin( the diversion pro#eedin(s shall endeavor to obtain the a(reement of the o=ended party in the formulation of the individualied diversion pro(ram #ontained in the #ontra#t of diversion by:
&1' Iplainin( to the o=ended party the bene>ts of for(iveness and diversion- and the need to reform the #hild $ithin the auspi#es of the #ommunity instead of detention homes or rehabilitation #enters on#e the #hild epresses remorse and a $illin(ness to as6 for for(iveness from the o=ended party8 and
&2' ssurin( the o=ended party that the SWDF- to(ether $ith the lo#al (overnment and the #ommunity- $ill ta6e #are of the responsibility of reformin( and monitorin( the #hild throu(h various diversion pro(rams*
No$ever- the a##eptan#e of the o=ended party is not re;uired for a #ontra#t of diversion to be valid*
Ger )ule /- the #ommunity9based pro(rams for diversion- as distin(uished from the pro(rams for intervention under )ule 1@shall respond to the spe#ial needs- problems- interests and #on#erns of #hildren in #on
#ommunity9based me#hanisms and pro(rams to prevent them from o=endin( and re9o=endin(*
%he #ommunity9based pro(rams for diversion shall be developed by the Hs throu(h the SWDFs and the CGCs- in #oordination $ith the s#hools- youth or(aniations and other #on#erned a(en#ies* %hese pro(rams shall be #onsistent $ith the standards pres#ribed in the #t and (uidelines issued by the DSWD*
%he San((unian( Jabataan- as pres#ribed by Se#tion 1A of the #tshall #oordinate $ith the CGC in the formulation and implementation of diversion pro(rams in the #ommunity*
Hs shall be responsible ma6in( the assessment and evaluation of the #ommunity9based pro(rams for diversion in their annual report on the #omprehensive "uvenile intervention pro(rams*
Ger )ule B1- the #hild to(ether $ith the parents or (uardians shall present themselves to the #ompetent authorities that imposed the diversion pro(ram at least on#e a month for reportin( and evaluation of the e=e#tiveness of the pro(ram*
ailure to #omply $ith the terms and #onditions of the #ontra#t of diversion- as #erti>ed by the SWDF- shall (ive the o=ended party the option to institute the appropriate le(al a#tion*
n #ases $here the there is failure of diversion at the ?aran(ay level- the Gunon( ?aran(ay that #ondu#ted the diversion pro#eedin(s- upon a >ndin( of failure to #omply- may refer the #ase of the #hild to the la$ enfor#ement oE#er or prose#utor as if there is no #onsent to the diversion or that diversion is not appropriate and desirable for the #hild as provided in Se#tion 2, of the #t*
n #ases $here the o=ense #ommitted is a vi#timless #rime- the SWDF that #ondu#ted the diversion pro#eedin(s- upon a >ndin( of failure to #omply- may refer the #ase of the #hild to the prose#utor as if there is no #onsent to the diversion or that diversion is not appropriate and desirable for the #hild as provided in Se#tion 2, of the #t*
nder )ule B2- the period of pres#ription of the o=ense shall be suspended until the #ompletion of the diversion pro#eedin(s but not to e#eed forty9>ve &4B' days*
%he period of pres#ription of the o=ense shall be suspended durin( the e=e#tivity of the diversion pro(ram- but not e#eedin( a period of t$o &2' years*
Ger )ule B3- a #hild in #on
&a' %he o=ense #ommitted by the #hild in #on
&b' F=ended party opts to >le an a#tion $ith failure to #omply $ith the terms of diversion8
&#' +o #onsent or a(reement to a diversion8 and
&d' When #onsiderin( the assessment and re#ommendation of the SWDF- the prose#utor determines that diversion is not appropriate for the #hild in #on
Ger )ule BA- upon determination of probable #ause by the prose#utor- the information a(ainst the #hild shall be >led before the amily Court $ithin forty9>ve &4B' days from the start of the preliminary investi(ation*
)ule B@ provides that f the #hild in #on
Where the maimum penalty imposed by la$ for the o=ense $ith $hi#h the #hild in #onne or >ne alone re(ardless of the amount- and before arrai(nment of the #hild in #on
nder )ule 01- #hildren detained pendin( trial may be released on bail or re#o(nian#e as provided for under Se#tions 34 and 3B of the #t* n all other #ases and $henever possible- detention pendin( trial may be repla#ed by alternative measures- su#h as #lose supervision- intensive #are or pla#ement $ith a family or in an edu#ational settin( or home* nstitutionaliation or detention of the #hild pendin( trial shall be used only as a measure of last resort and for the shortest possible period of time*
Ger )ule 03- $here a #hild is detained- the #ourt shall order the:
&a' release of the minor on re#o(nian#e to his parents and other suitable persons8
&b' release of the #hild in #on
&#' transfer of the minor to a youth detention home7youth rehabilitation #enter*
%he #ourt shall not order the detention of a #hild in a "ail pendin( trial or hearin( of his7her #ase*
Whenever detention is ne#essary- a #hild $ill al$ays be detained in youth detention homes established by lo#al (overnments- pursuant to Se#tion @ of the amily Courts #t- in the #ity or muni#ipality $here the #hild resides* n the absen#e of a youth detention home- the #hild in #on
a(en#y #on#erned shall be responsible for the #hild5s appearan#e in #ourt $henever re;uired*
Ger )ule 0B- on#e the #hild $ho is under ei(hteen &1@' years of a(e at the time of the #ommission of the o=ense is found (uilty of the o=ense #har(ed- the #ourt shall determine and as#ertain any #ivil liability $hi#h may have resulted from the o=ense #ommitted* No$ever- instead of pronoun#in( the "ud(ment of #onvi#tion- the #ourt shall pla#e the #hild in #on
pon the re#ommendation of the so#ial $or6er $ho has #ustody of the #hild- the #ourt shall dismiss the #ase a(ainst the #hild $hose senten#e has been suspended and a(ainst $hom disposition measures have been issued- and shall order the >nal dis#har(e of the #hild if it >nds that the ob"e#tive of the disposition measures have been ful>lled* %he dis#har(e of the #hild in #on
Ger )ule @2- as provided in Se#tion B&h' of the #t- the publi# shall be e#luded durin( the pro#eedin(s- from initial #onta#t to the >nal disposition of the #ase- and all re#ords from these pro#eedin(s shall not be dis#losed dire#tly or indire#tly to anyone by any of the parties or the parti#ipants in the pro#eedin(s for any purpose $hatsoever- e#ept:
&a' %o determine if the #hild in #on
&b' f the #hild in #on
&#' %o enfor#e the #ivil liability imposed in the #riminal a#tion*
nder )ule @0- as re;uired under Se#tion 43 of the #t- all authorities havin( #onta#t $ith the #hild in #ondentiality of pro#eedin(s- in#ludin( the:
&(' se of a system of #odin( that provides aliases for #hildren ta6en into #ustody8
&h' Maintenan#e of a separate lo(boo6 and a separate poli#e blotter for #hildren in #on
&i' I#lusion of the publi#- parti#ularly the media- from the area $here the #hild is bein( held in #ustody pursuant to Se#tion 43 of the #t8
&"' +on9dis#losure of any detail or information to the publi#parti#ularly the media- that shall lead to the identity of the #hild8
&6' Jeepin( the results of the medi#al eamination #on>dential8 and
&l' Mar6in( of the re#ords of the #hild and the report on the initial investi(ation as #on>dential*
ailure to underta6e measures to maintain #on>dentiality is punishable under Se#* 02 of the #t*
person $ho has been in #on
