Child Support Policy for Separated Families Introduction Child support is a basic right. The Constitution protects the right of children to support and assistance, including proper care and nutrition, and special protection from all forms of neglect. 1 The Family Code protects the right of children to receiv receivee suppor supportt from their their parent parents, s, grandp grandpare arents nts,, other other legiti legitimat matee ascend ascendant ants, s, 2 brothers, and sisters. The The ule uless of Court Court and and vari variou ouss spec specia iall rule ruless prov provid idee ! remedies to obtain child support. The evised Penal Code even punishes the failure of a parent to give a child the education according to his station in life and financial condition. " #o$ever, obtaining child support is still a challenge for many separated families. First, many fathers have not yet voluntarily recogni%ed their illegitimate children, so the children still have to see& paternal recognition first before they can demand for support. Second, court actions often ta&e years and cost thousands of pesos, so families often resort to self'help instead of fighting for the child(s right to support through the courts. Third, millions of parents $or& and live abroad or far from home, so enforcement of child support payments is difficult for lac& of )urisdiction over the non'custodial parent or for lac& of administrative enforcement over child supp support ort paym paymen ents ts.. Four Fourth th,, chil child d supp suppor ortt coll collec ecti tion on is ofte often n dela delaye yed d and and insufficient because child support enforcement is often $ea& and penalties for non' comp compli lian ance ce are are seld seldom om impl implem emen ente ted. d. *eca *ecaus usee cour courtt acti action onss are are slo$ slo$ and and e+pensive and many parents no$ $or& overseas, remedies for obtaining child suppor supportt should should favor favor volunt voluntary ary proces processes ses,, faster faster admini administr strati ative ve suppor support, t, and enforceable agreements. This This paper paper on child child suppor supportt policy policy is organi organi%ed %ed into three three parts parts family family la$, la$, reme remedi dial al la$, la$, and and priv privat atee inte intern rnat atio iona nall la$. la$. The The Fami Family ly Code Code provi provide dess the the subs substa tant ntia iall la$ la$ on chil child d supp suppor ortt and and ans$ ans$ers ers the the -ues -uesti tion onss on $hat $hat is chil child d support, $ho is entitled to it and obliged to give it, $hen is it due, ho$ much is demandable, etc. emedies to obtain child support can either be e+tra)udicial or )udicial, $hich can either be civil or criminal. +tra)udicial remedies rely on the initiative of family 1 Constitution, /rticle 0, Section !13 2 Family Code, /rticle 145 ! ules of Court, ule 61 " evised Penal Code, /rticle 277 1
memb members ers,, empl employ oyer ers, s, conc concer erne ned d indi indivi vidu dual als, s, loca locall gove govern rnme ment nt unit units, s, and and administrative agencies. 8udicial remedies are provided in the Family Code, ules of Court, evised Penal Code, Child and 9outh :elfare Code, /nti'iolence /gainst :omen and their Children /ct, and other special la$s and r ules protecting children. Private international la$ $ould apply $hen Filipino children $hose parents live and $or& overseas see& child support, support, especially especially on the issues of )urisdicti )urisdiction on and enfo enforc rcem emen ent. t. efo eform rm on Phil Philip ippi pine ne chil child d supp suppor ortt poli policy cy is nece necess ssar ary y if the the Philippines $ants to ratify the international conventions on child support and to pass a divorce la$ to ensure ensure that the best interests interests of the child are protected. protected. :hat is Child Support; The The Fami Family ly Code Code,, as amen amende ded d by epu epubl blic ic /ct /ct 4 6=>4,, prov provid ides es that that emancipation ta&es place at the age of ma)ority, $hich commences at the age of 1= years. The Convention on the ights of / Child defines a child as every human being belo$ the age age of 1= years. Support Support comprises comprises everythin everything g indispens indispensable able for sustenanc sustenance, e, d$elling, d$elling, clothing, clothing, medical attendance, education and transportation, in &eeping $ith the financial capacity of the family. ?inds of Child Support Tole Tolent ntin ino o dist distin ingu guis ishe hess that that natu natura rall supp suppor ortt is abso absolu lute tely ly indi indisp spen ensa sabl blee for for subsistenc subsistence, e, $hile civil support is necessary necessary for the recipient recipient to live and maintain maintain himself himself in accordance accordance $ith his condition condition and circumstan circumstance. ce. :hile the Civil Civil Code provides that support must be @according to the social position of the family,A the Family Code has changed the standard to @in &eeping $ith the financial capacity of the family.A The Family Code has included transportation as part of support, $hich implies that transportation is not part of sustenance. Beans of communications could also be included in support. :ho is bliged to Dive Support; Parents, grandparents, other ascendants, brothers and sisters are obliged to support a child. The Family Code sets the order that family members are obliged to support 2
a child. /scendants are called to support their descendants before brothers and sist sister erss are are call called ed to supp suppor ortt each each othe other. r. The The Fami Family ly Code Code bind bindss ille illegi giti tima mate te brothers and sisters to support each other e+cept $hen the need for support of the sibling $ho is of age is due to the claimantEs fault or negligence. Since the provisions on support ma&e more family members liable for supporting a child and since Filipino households tend to have more e+tended families instead of nuclea nuclearr famili families, es, more members members of the the family family give suppor supportt to a child child before before demand for support is made on a non'custodial parent. Family members related by blood to the custodial parent $ill e+haust all their means first before they demand child support from the other parent. The e+haustion of resources of the family of the custodial parent $or&s best if the family is $ell'to'do and rich or if the family lives in rural areas. #o$ever, nuclear households, single'parent families, and urban households have increased so reliance on e+tended families and their support could have diminished. emand for Support Prices of basic commodities, housing, clothing, medical fee, tuition, educational fee, fee, and transp transport ortati ation on have have greatl greatly y increa increased sed in compari comparison son to $ages. $ages. Bany Bany parents are no$ $or&ing overseas to earn more for their families since $ages in the Philippines cannot &eep up $ith rising prices of goods and services. verseas Filipino $or&ers no$ number around 1> million, and they send billions of pesos of remittances every year. If all overseas Filipinos send sufficient support timely and regularly, enforcement of child support for such families $ould no longer be necessary. #o$ever, there have been many cases $here the overseas parent has been remiss in sending support, so the childEs $elfare could suffer even if the family has the means to sustain the child. This situation usually happens $hen the family in the Philippine has limited means of livelihood and relies on overseas remittances as their main income. The child child $hose $hose parent parentss are separa separated ted,, $hethe $hetherr legall legally y separa separated ted or de facto facto separated, $ould also have to as& for support from the non'custodial parent. The Family Code provides that the obligation to give support may be fulfilled by paying a fi+ed allo$ance or by receiving and maintaining the child in the family d$el d$elli ling ng.. The The non' non'cu cust stod odia iall paren parentt only only has has the the opti option on of payi paying ng the the fi+e fi+ed d allo$ance.
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*esides higher costs of living, another reason to as& for child support is to hold the non' non'cu cust stod odia iall pare parent nt resp respon onsi sibl blee for for his his duti duties es and and obli obliga gati tion onss to his his chil child. d. Financial Financial support support is only a part of the many responsibi responsibilitie litiess of a parent to a child, but support is vital to sustain the childEs rights to survival and development. Sufficient child support can be the difference bet$een life and death for children living in poverty. #olding parents accountable for child support $ould greatly ease the burden of the state to protect the $elfare of children and to ensure that children survive and develop into $ell'functioning citi%ens. /mount :hile the things included in support are clear and determinate, the amount of support $ould differ because the court that grants support $ould have to consider the financial capacity of the family and the best interests of the child. #ence, a court $ould have to consider the peculiar circumstances of each case in a$arding child support. Gnbridled discretion $ould be fine if all family court )udges $ere unbiased and trust$orthy, and all litigants and counsels $ere honest, forthcoming, and fair. Separated Families Separa Separated ted and illegi illegitim timate ate childr children en have have to as& their their non'cu non'custo stodia diall parent parent for support $hen many legitimate children $ho live $ith their parent do not have to do so. Separated children, $hether legitimate or illegitimate, can only as& for a fi+ed allo$ance from the non'custodial parent, unless that parent has )oint custody over the child and there is no legal or moral obstacle to child living in his home. Children can also have problems communicating $ith their parents, especially if the parents are un$illing or unable to spea& or $rite to their o$n children. Parents $ho live and $or& overseas can be costly and challenging to reach by phone or through the internet, especially if the children are young and not yet educated and the family has limited financial and educational capacity. Illegitimate Children Illegitimate children also have more problems than legitimate children in as&ing for support because they must validly establish their paternity or filiation first before they can see& support. ven if they have validly established their paternity and filiation, they have less priority in the property regime if one parent is validly married to another person $ho is not the other parent. If there is no marriage settle settleme ment nt provid providing ing for the proper property ty regim regime, e, the defaul defaultt proper property ty regim regimee is "
absolute community of property for marriages celebrated during the effectivity of the Family Code and con)ugal partnership of gains for marriages celebrated before the effectivity of the Family Code. Illegitimate childrenEs support must first come from the separate property of the parent and if it is insufficient, the absolute commun community ity or con)ug con)ugal al partne partnersh rship ip $ould $ould be liable liable for suppor support. t. #o$eve #o$ever, r, all children have the same basic needs so the separation and illegitimacy of a child puts him at a great disadvantage disadvantage to obtain support. support. Proof of Paternity and Filiation Hegiti Hegitimat matee child children ren do not have have proble problems ms in provin proving g patern paternity ity and filiat filiation ion because the la$ provides that children children born or conceived during a valid valid marriage is legitimate, unless this legitimacy is directly challenged in a )udicial action. The problem of proving paternity and filiation normally arises for illegitimate children. If the father signs the bac& of the birth certificate and attests that he is the father of the illegitimate child, the proof for the paternity of the child is already met. If the father $as unable to sign the birth certificate, he can still voluntarily signify that he is the father of the illegitimate child by attesting such fact in a public document or or in a private hand$ritten hand$ritten instrument signed by him. him. The problem in proving paternity arises $hen the father refuses to recogni%e the child or contests the alleged paternity. In the Philippines, the child $ith the help of his guardian must file a civil action for compulsory recognition and support. The plaintiff must prove paternity by the open and continuous possession of a status of an illegitimate or by other measures allo$ed by the ules of Court and special la$s la$s.. In a numbe umberr of case cases, s, the Sup Suprem reme Court ourt has appr appro oved ved the the use use of deo+yribonucleic acid
emand for Support Support is demandable from the time the child needs it for maintenance $hich could be as early as his birth or the motherEs pregnancy. #o$ever, support shall not be paid e+cept from the date of e+tra)udicial demand. #ence, a child or his custodial parent or guardian must still as& the non'custodial parent for support if no support $as given or forthcoming from him. / demand for child support may be in any form since the la$ does not specify the form. #o$ever, a $ritten demand for support may be easier to prove in court. Children are entitled to support from their parents, grandparents, other other ascendants, brothers, and sisters. #o$ever, #o$ever, illegitimate children must first establish their illegitimate paternity or filiation before they can as& for support from their father. /fter a child as&s for support either e+tra)udicially and the non'custodial parent is still un$illing to give support or such support is insufficient despite the financial capacity of that parent, the child as represented by his parent or guardian may file a civil action for support and apply for the provisional remedy of support pendent elite. If the father has committed a violation against the mother of the child under ./. 4262 or the /nti'iolation /gainst :omen and their Children /nti'/:C3 /ct, the mother may file a criminal action and civil action in court and file for a barangay protection order. efusal to give financial support or $ithholding the allo$ance of a child may be grounds for economic abuse under the /nti'/:C /ct. If the the non'cu non'custo stodia diall parent parent has committe committed d crimes crimes agains againstt the child child under under the evised Penal Code, the Child and 9outh :elfare /ct, and Special Protection /gainst /gainst Child /buse, +ploitation +ploitation and iscrimina iscrimination tion /ct, and other penal la$s, the child may file a criminal action against that parent. efusal to give child support may come under neglect of a child under these penal la$s. ptions to Dive Support / parent fulfills his obligation to give support to his child by paying the allo$ance fi+ed or by receiving and maintaining the child in the family d$elling. esearchers in other countries -ualify further the forms of child support into formal, informal, in'&ind, and custody. Formal child support is ordered and fi+ed by a court or administrative agency to be paid by a non'custodial parent. Informal child support 6
is monetary support voluntarily given by a non'custodial parent $hen there is no formal support or in e+cess of such formal support. In'&ind child support is non' monetary support given by a non'custodial parent to a child, $hich may include food, clothing, toys, vacations, tuition, boo&s, etc. Custody as a form of child support means receiving or maintaining a child in his o$n home. In other )urisdictions, formal child support is generally reduced if there is )oint custod custody. y. Formal Formal child child suppor supportt is sub)ec sub)ectt to change change and never never attain attainss finali finality ty because the circumstances of the child or the parent may change. In states $ith e+tensive $elfare agencies, the non'custodial parent sends the amount of financial support to the child support agency, $hich gives the appropriate support to the custodial parent. The child support agency is subrogated to their rights of custodial parents to collect support support and file actions against against delin-uent parents. parents. In the the Phil Philip ippi pine nes, s, the the non' non'cu cust stod odia iall pare parent nt must must pay pay form formal al supp suppor ortt to the the custodial parent $ithin the first five days of the month $hen support is needed. The custodial parent must provide evidence of the e+penses of the child. For informal and in'&ind support, the amount and &ind of support $ould depend on the non'custodial parent.
+tra)udicial emedies The Family Code provides that child support shall not be paid e+cept upon )udicial or e+tra)udicial demand. #ence, the la$ provides t$o &inds of remedies )udicial and e+tra)udicial. *ecause of the congestion of court doc&et, parents should try to e+haust e+tra)udicial remedies to obtain child support. The simplest remedy is for the child or guardian to as& in $riting for the non' custodial parent to give support. If the parent agrees to give support, the child or guardian should be ready $ith a list of e+penses for the parent to support. *eing prepared $ith an amount ma&es it easier for a child to as& and negotiate for support. support. Sending money is no$ faster and more convenient convenient because many ban&s, remi remitt ttan ance ce cent center ers, s, and and cour courie ierr serv servic ices es in the the Phil Philip ippi pine ness offe offerin ring g mone money y remittance services. :hile some remittance services cost more than ban&s, not all Filipinos have ban& accounts so remittance centers are more accessible. :ith :ith the the cons consen entt of the the non' non'cu cust stod odia iall pare parent nt,, the the guard guardia ian n can can also also as& as& the the employer to send the money directly to the person $ith custody of the child. Bilitary personnel can also provide for an allotment or fi+ an amount from their 7
salaries to be sent directly to the ban& account of a dependent, $hich could be hi parent, spouse, or child. If the child and custodial parent live in the same barangay as the non'custodial parent, the child and guardian can see& barangay conciliation and mediation to fi+ the amount of support. :hile future support is not sub)ect to compromise, the amount of support and support in arrears may be validly compromised. #o$ever, barangay conciliation and mediation is no longer necessary $hen the child intends to file an action $ith application for support pendente lite because actions $ith provisional remedies are not re-uired to undergo barangay barangay conciliation. In other )urisdictions, child support agencies have -uasi')udicial authority to hear and decide child support cases. These agencies can often be better than courts in because they have speciali%ed &no$ledge and e+perience, undergo e+pedited proceedings, and offer better better access to indigent families. families. Civil emedies Civil remedies for child support include an action for support $ith application for the provisional remedy of support pendente lite. The follo$ing civil actions may include an application for support pendent lite annulment of marriage, declaration of nullity of marriage, legal separation, )udicial separation of property, habeas corpus, child custody, etc. The childEs mother may file civil and criminal actions against the father if there are violations based on the /nti'/:C /ct, $hich includes economic abuse. The plaintiff may see& temporary and permanent protection orders and apply for support pendente lite. If there is physical violence or threat of violence, the mother may also see& a barangay protection order before filing an action in court. Criminal /ction The child may file criminal actions against the non'custodial parent for neglect under the evised Penal Code, the Child and 9outh :elfare /ct, and Special Protection /gainst Child /buse, +ploitation and iscrimination /ct, and other penal la$s. / victim of rape or other crime $ho has given birth to a child $here the accused is the father should file a criminal action and see& child support. Proof of the rape or crime should include the proof of paternity. If the court convicts the accused and
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finds that he is the father of the child, the accused is obligated to support the child, even though he $ould not have parental authority. Three bills in Congress, t$o in the Senate, one in the #ouse of epresentatives, see& to criminali%e the failure of a parent to give a certain amount of child support. These bills are meant to provide teeth on the failure of enforcing child support, even though failure to give support is already punishable as neglect and child abuse under penal la$s and child $elfare la$s. #ague Convention on Child Support The Philippines is not a signatory to the #ague Convention on Child Support, but it is a signatory to the #ague Convention on Private International Ha$. This is. good thing because the Philippines can still create an administrative policy and improve the enforc enforceme ement nt for child child suppor support. t. :hile :hile other other countr countries ies have have admini administr strati ative ve agencies that deal $ith child support, the Philippines relies on the courts. :hile $e have family courts that speciali%e on child support cases, $aiting for child support enforcement can ta&e years. isobedience to child support payments are liable for contempt, but this is discretionary $ith )udges. :e need a child support la$ to supplement the provisions of the Family Code and an administrative agency that could assist people $ho $ant e+tra)udicial measures of obtaining child support before $e could sign and ratify the #ague Convention on Child Support. eform Improving child support enforcement means reducing the effort, time, and cost in obtain obtaining ing child child suppor support. t. The state state should should impro improve ve admini administr strati ative ve remedi remedies es in obtaining child support.
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