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Best interest of child and tender years doctrine

June 6, 2013 9:51 pm

by BENCHPRESS

DAILY COURTSIDE REPORT

A Filipino couple, both working in the United States (US), met and fell in love. After three (3) years of living
together and having a daughter, they got married. A few months later, the wife gave birth to their second child,
but their relationship began to deteriorate. The wife claimed that her husband nagged her too much about
money matters while he claimed she was a spendthrift, buying expensive jewelry and antique furniture
instead of attending to household expenses.
Eventually, the relationship turned sour and the wife moved to a different state, leaving her husband and
children behind. The husband moved back to the Philippines. Due 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. It was only two years later that
the mother of the children went to the Philippines to gain custody over her children.
The Regional Trial Court (RTC) gave the father sole parental authority and suspended the mothers parental
authority over her children. Visitation rights were to be agreed upon by the parties and approved by the RTC.
The Court of Appeals reversed the trial courts decision and granted custody to the mother and visitation rights
to the father on weekends premised on the tender years doctrine, which provides that no mother shall be
separated from her child under seven years of age, unless the court finds compelling reasons for such
measure.
The Supreme Court (SC) sustained the findings and conclusions of the RTC, reiterating that the paramount
criterion for granting parental authority is the best interest of the child and not the tender years doctrine
[the RTC] gave greater attention to the choice of Rosalind (the daughter) and considered in detail all the
relevant factors bearing on the issue of custody It is not so much the suffering, pride, and other feelings of
either parent but the welfare of the child which is the paramount consideration.
Citing Unson III v. Navarro, it explained that in all controversies regarding the custody of minors, the sole
and foremost consideration is the physical, education, social and moral welfare of the child concerned, taking
into account the respective resources and social and moral situations of the contending parents.
The SC further explained the rules in ascertaining the childs best interest
In ascertaining the welfare and best interests of the child, courts are mandated by the Family Code to take into
account all relevant considerations. If a child is under seven years of age, the law presumes that the mother is
the best custodian. The presumption is strong but it is not conclusive. It can be overcome by compelling
reasons. If a child is over seven, his choice is paramount but, again, the court is not bound by that choice. In
its discretion, the court may find the chosen parent unfit and award custody to the other parent, or even to a
third party as it deems fit under the circumstances.
Lastly, the Court observed that the childrens age and their choice of parent should have been taken into
consideration when assessing the childrens best interest
Not only are the children over seven years old and their clear choice is the father, but the illicit or immoral
activities of the mother had already caused emotional disturbances, personality conflicts, and exposure to
conflicting moral values, at least in Rosalind. This is not to mention her conviction for the crime of bigamy
The children understand the unfortunate shortcomings of their mother and have been affected in their
emotional growth by her behavior (Espiritu v. Court of Appeals, G.R. No. 115640, 15 March 1995, J. Melo).

Custody battle
Nothing can be more traumatic than a husband and a wifes battle for custody of their
children, except probably for a child to know that his or her 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
The Supreme Court in the case of Bondagjy vs. Bondagjy (G.R. No. 140817. December 7,
2001) stated that the welfare of the minors is the controlling consideration on the issue. The
Court also said that the factors that determine the fitness of any parent are:
[1] the ability to see to the physical, educational, social and moral welfare of the children, and
[2] the ability to give them a healthy environment as well as physical and financial support taking into
consideration the respective resources and social and moral situations of the parents.

Excerpts from the Supreme Court decision


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

[1] Is a wife, a Christian who converted to Islam before her marriage to a Muslim and converted back
to Catholicism upon their separation, still bound by the moral laws of Islam in the determination of
her fitness to be the custodian of her children?
The standard in the determination of sufficiency of proof, however, is not restricted to Muslim laws.
The Family Code shall be taken into consideration in deciding whether a non-Muslim woman is
incompetent. What determines her capacity is the standard laid down by the Family Code now that
she is not a Muslim.
Indeed, what determines the fitness of any parent is the ability to see to the physical,
educational, social and moral welfare of the children, and the ability to give them a healthy
environment as well as physical and financial support taking into consideration the
respective resources and social and moral situations of the parents.
The record shows that petitioner is equally financially capable of providing for all the needs of her
children. The children went to school at De La Salle Zobel School, Muntinlupa City with their tuition
paid by petitioner according to the schools certification.
[2] The welfare of the minors is the controlling consideration on the issue.
In ascertaining the welfare and best interest of the children, courts are mandated by the Family Code
to take into account all relevant considerations.

Article 211 of the Family Code provides that the father and mother shall jointly exercise
parental authority over the persons of their common children.
Similarly, P.D. No. 1083 is clear that where the parents are not divorced or legally separated,
the father and mother shall jointly exercise just and reasonable parental authority and fulfill
their responsibility over their legitimate children.
Either parent may lose parental authority over the child only for a valid reason. In cases where
both parties cannot have custody because of their voluntary separation, we take into consideration
the circumstances that would lead us to believe which parent can better take care of the
children. Although we see the need for the children to have both a mother and a father, we
believe that petitioner has more capacity and time to see to the childrens needs. Respondent
is a businessman whose work requires that he go abroad or be in different places most of the time.
Under P.D. No. 603, the custody of the minor children, absent a compelling reason to the contrary, is
given to the mother.
[3] However, the award of custody to the wife does not deprive the husband of parental
authority. In the case of Silva v. Court of Appeals, we said that:
Parents have the natural right, as well as the moral and legal duty, to care for their children, see to
their upbringing and safeguard their best interest and welfare. This authority and responsibility may
not be unduly denied the parents; neither may it be renounced by them. Even when the parents are
estranged and their affection for each other is lost, the attachment and feeling for their offsprings
invariably remain unchanged. Neither the law nor the courts allow this affinity to suffer absent, of
course, any real, grave and imminent threat to the well-being of the child.

Tender years rules

When Mother of Child Can be Deprived of Custody


As a general rule, a child under 7 years of age shall be in the custody of the mother (Art 213 of the
Family Code). This is known as the maternal preference rule or tender-years-rule.
But this rule has exceptions: when the court finds compelling reasons to order otherwise. This
includes finding compelling evidence showing the mothers unfitness such as:

neglect

abandonment

unemployment

immorality

habitual drunkenness

drug addiction

maltreatment of the child

insanity

affliction with a communicable disease

Case law: Agnes Hirsch vs. CA and Franklin Hirsch (GR No. 174485, July 11, 2007)

Wednesday, July 11, 2007

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

Notes: (1) Click the picture to download a free PDF


newsletter on this topic; (2) Please read my related posts titled Visitation rights over illegitimate
children; and How do our courts determine which parent has the right of custody of the children?.

Nothing can be more traumatic than a husband and a wifes battle for custody of their
children, except probably for a child to know that his or her 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


The Supreme Court in the case of Bondagjy vs. Bondagjy (G.R. No. 140817. December 7,
2001) stated that the welfare of the minors is the controlling consideration on the issue. The
Court also said that the factors that determine the fitness of any parent are:
[1] the ability to see to the physical, educational, social and moral welfare of the children, and
[2] the ability to give them a healthy environment as well as physical and financial support taking into
consideration the respective resources and social and moral situations of the parents.

Excerpts from the Supreme Court decision


Posted below are excerpts of the Bondagjy decision (emphasis by boldfacing supplied). The PD
1083 mentioned in the decision refers to the Code of Muslim Personal Laws.
[1] Is a wife, a Christian who converted to Islam before her marriage to a Muslim and converted back
to Catholicism upon their separation, still bound by the moral laws of Islam in the determination of
her fitness to be the custodian of her children?
The standard in the determination of sufficiency of proof, however, is not restricted to Muslim laws.
The Family Code shall be taken into consideration in deciding whether a non-Muslim woman is
incompetent. What determines her capacity is the standard laid down by the Family Code now that
she is not a Muslim.
Indeed, what determines the fitness of any parent is the ability to see to the physical,
educational, social and moral welfare of the children, and the ability to give them a healthy
environment as well as physical and financial support taking into consideration the
respective resources and social and moral situations of the parents.
The record shows that petitioner is equally financially capable of providing for all the needs of her
children. The children went to school at De La Salle Zobel School, Muntinlupa City with their tuition
paid by petitioner according to the schools certification.
[2] The welfare of the minors is the controlling consideration on the issue.
In ascertaining the welfare and best interest of the children, courts are mandated by the Family Code
to take into account all relevant considerations.
Article 211 of the Family Code provides that the father and mother shall jointly exercise
parental authority over the persons of their common children.

Similarly, P.D. No. 1083 is clear that where the parents are not divorced or legally separated,
the father and mother shall jointly exercise just and reasonable parental authority and fulfill
their responsibility over their legitimate children.
Either parent may lose parental authority over the child only for a valid reason. In cases where
both parties cannot have custody because of their voluntary separation, we take into consideration
the circumstances that would lead us to believe which parent can better take care of the
children. Although we see the need for the children to have both a mother and a father, we
believe that petitioner has more capacity and time to see to the childrens needs. Respondent
is a businessman whose work requires that he go abroad or be in different places most of the time.
Under P.D. No. 603, the custody of the minor children, absent a compelling reason to the contrary, is
given to the mother.
[3] However, the award of custody to the wife does not deprive the husband of parental
authority. In the case of Silva v. Court of Appeals, we said that:
Parents have the natural right, as well as the moral and legal duty, to care for their children, see to
their upbringing and safeguard their best interest and welfare. This authority and responsibility may
not be unduly denied the parents; neither may it be renounced by them. Even when the parents are
estranged and their affection for each other is lost, the attachment and feeling for their offsprings
invariably remain unchanged. Neither the law nor the courts allow this affinity to suffer absent, of
course, any real, grave and imminent threat to the well-being of the child.

Summary:
[1] In custody disputes, the paramount criterion is the
welfare and well-being of the child.
[2] General rule: custody of a child below seven years of
age belongs to the mother.
[3] Exception: if there are compelling reasons, custody
may be denied and granted to another party under
Article 214 of the Family Code.
[4] Compelling reasons for a mother to lose custody:
neglect; abandonment; unemployment and immorality;
habitual drunkenness; drug addiction; maltreatment of
the child; insanity; affliction with a communicable illness.
Posted by Atty. Gerry T. Galacio at Wednesday, July 11, 2007

39 comments :

Anonymous said...
greetings atty, i would like to ask for your opinion on my situation.
i am separated from my husband not legally. we separated because he is having an affair
with another woman and had a child with her. presently, he is living in with that woman and
their child, while me and my son have our own apartment to stay. i work in an office and i
have a yaya for my son. my husband does not give financial support regularly, so my inlaws
sometimes takes over and gives support to us. ever since we separated, about 4 yrs, little by
little he distants himself from my son. before he would come visit my son every 2 weeks and
then lately months will take before he sees him. my inlaws regularly visits us every 2 weeks,
and they are the ones getting updates about their grandson and tells my husband. i guess
my husband doesnt want to see me thats why he seldom visits my son. my son who is 7
years old is beginning to ask me why his father do not stay with us and why does his father
doesnt fulfill his role of being a father to him like his other classmates in school. i just change
the subject whenever he asks because i dont want to rationalize to my son or give an
impression to my son that me and his father have mutual views on the separation. he is
slowly staying away from his responsibility to my son.
i would like to ask atty what do i have to tell my son if he asks questions about his father's
absence? is my husband developing no concern with my son anymore that he is drifting
away, much more at the time my son needs a father at his age? is it normal for a father that
its ok with him of not being part of the life of his own child? because i can see in my son his
longing for a father role in his life.
my heart breaks when i see my son like this.
can you help me atty? thank you so much for your time.
July 31, 2008 3:41 AM

dreamer said...
This is how I think of the situation: Children will always ask question. Will you tell the child
the truth,beat-around-the-bush, or assume. I would tell the child the truth, but just not in so
many words, how ever I would try to explain, as long as I don't have to lie, it wont hurt me as
much in the future.
July 31, 2008 11:33 AM

Atty. Gerry T. Galacio said...


1. In terms of financial support, you can obligate your husband to support you and
your son. Please read my post in this blog titled Support for abandoned woman and
family. I also have a free PDF newsletter on this topic which you can download from my
Family Matters website.
You did not state what led to your husbands adulterous relationship. In my Salt and Light
blog, I have several articles on marital infidelity. I highly advise that you read Dr. James
Dobsons book Love Must Be Tough on how to deal with an adulterous spouse.
2. Sadly, a lot of men do not understand or realize the impact they have on their children.
Children who grow up without a positive masculine role model often have great difficulty
believing in God. This was the experience, for example, of C.S. Lewis (he wroteThe
Chronicles of Narnia which was turned into a series of Hollywood movies). His father was a
very strict disciplinarian who punished him as a young boy by asking him to recite the Lords
Prayer in Latin.
3. Although it may be awkward and difficult to explain to your son what the problem is,
it will be better in the long run for you to be honest with him NOW about his absentee
father. You will be always evading the issue or be forced to invent various reasons
why his father cannot be with him.
Please surf to my June 13, 2008 Father's Day post where I discussed the video "Father's
Love Letter."
4. You can ask the help of your brothers (if any), your father, other male relatives, minister,
schoolteachers, churchmates, etc to take your son under their wings, so to speak, and be
the positive masculine role model your son needs. You should avoid what Dr. Laura (a wellknown American counselor) said about thefeminization of boys. Boys and girls are
different. One resource you should definitely read is Dr. James Dobsons book
entitled Bringing Up Boys.
Please also avoid the mistake of telling your son that because his father is not with you, then
he is the man of the house. That will just set him up for failure.
I can recommend to you the website www.crosswalk.com which has a section (or channel)
on parenting with several articles for single parents. You can use this link:
http://www.crosswalk.com/search/single%20parents/

Also, Dr. Dobsons Focus on the Family ministry has a website www.family.org. Please surf
to the section on "Parenting/ Special Family Situations" where you will find articles such
as: Adopting a Significant Family Purpose; Single Dads Raising Daughters; One Single
Dad's Story; Next Steps / Related Information; As a single parent, am I deserting my children
by taking a few days to myself?
Dr. Dobsons article titled What encouragement can you offer to single parents?
can be found at
http://family.custhelp.com/cgi-bin/family.cfg/php/enduser/std_adp.php?p_faqid=908
August 01, 2008 9:24 AM

Anonymous said...
thank you so much atty for your advices and suggested articles and books i can read to help
me with my situation.
my husband was always passive before when i try to talk to him about his affair, he was in
denial at first but when i found out proofs of his infidelity, he finally told me that i was the
reason why he had that affair because i did not fulfill his desire of having another child with
him after our first born.
in my heart atty, i wanted to have another child but i have a reproductive problem, so bearing
another child will be a challenging one for me as i did with my firstborn. i was so thankful to
God that He blessed us with our firstborn inspite of my reproductive problem. my OBGYN
told me to wait a few years after our first born before i conceive again.
but my husband didnt understand my situation, he accuses me that i did not want another
child so he was tempted to have one with a mistress.
but i believe atty that in our early years of our marriage that he has been philandering behind
my back and when he mistakenly had his mistress pregnant, he put the blame on me
because i have a reproductive problem.
my husband had many girlfriends before he was married to me. i didnt got a CENOMAR of
him to check of his background, because i trusted him that much. he wasnt very open to talk
about his girlfriends before and i respected that because i trust him. however, he was able to
mention to me before, that before he had me as his girlfriend, he had an existing one. when
we went steady, he did not ended his relationship immediately with the other girl, it went to a
point that he had two of us as his girlfriends. but then at his own will, he broke up with the
other one, and we were steady for 3 years before getting married.

i was so in love with him that i didnt forsee this kind of behavior in him about that situation
having two girlfriends at the same time, and how can this be a piece of information on how
will he handle relationships in the future.
when i found out about his affair, and he finally admitted it, he told me that there is nothing to
talk about and he wants to get out of our marriage and if he has the money, he will file for
annulment.
when he said that i believe he has come up with this decision of leaving us finally after
denying the affair at first because he was still in the process of making decision of leaving us
or not. so when he finally made that decision of leaving us, no one can change his decision
not even his parents.
i also sought for his parents' help, but they cant do anything to the stubbornness of my
husband.
atty, how can i explain this all to my son? about the situation of me and his father's infidelity?
about why did his father left us?
can you please help me atty? i dont know how to explain to my son. i dont know what to tell
him or not to tell him. can you give me an example of what to tell my son, please atty?
thank you so much po.
August 02, 2008 7:50 AM

Sheila Marie said...


Greetings Atty,id like to ask if i can force the father of my son to visit him and spend time with
our son.Our son is 6 yrs old now.Eversince i gave birth he has constantly visted our son on
weends.It stopped only about two momths ago.He still continues to give financial support but
thats not all im after.I want my son to grow up close to his father.My ex is 34 yrs old and is
still single.
October 21, 2008 9:32 PM

Atty. Gerry T. Galacio said...


sheila marie,
The love and care for a child are voluntary emotions and actions on the part of the father or
mother. There is no legal remedy to force a father or mother to love his or her child. Please

read my related article Can you legally force your spouse to love and live with you? (look
for the link in the sidebar).
If you want people to pray for you regarding this situation, please follow this link to a prayer
room for men and women:
http://womentodaymagazine.com/chat/share.html
October 23, 2008 3:55 PM

Anonymous said...
What if the parents were never married. The mother has been taking care of the child since
day 1, the father has not shown any kind of support, interest, or has not donated a penny
towards the child's needs. He is now taking the mother to court seeking paternity and
legitimation, and is also seeking joint custody but he has 4 other children that he owes child
support on. The mother is about to graduate from college and feels like she can raise her
son without the drama and leeching behavior that comes along with the father. Do you think
the court will grant his wishes even though he has been to jail, owes thousands in child
support, and is involved in questionable activity?
November 30, 2008 9:30 AM

Atty. Gerry T. Galacio said...


First of all, an illegitimate child is under the SOLE parental authority of the mother as
provided for by Article 176 of the Family Code.
Secondly, Philippine courts follow what is called the best interest of the child doctrine.
Certain portions of the FC however lean towards the tender years doctrine. Whether
"tender years" or "best interest" is used, I doubt very much if the court will grant the petition
with the irresponsible nature and the criminal record of the biological father.
December 03, 2008 9:29 AM

Anonymous said...

Can a "would-be" mom force the father to acknowledge(through surname and financial
support) their child even if the father doesn't want to? Theirs is an extramarital affair because
the man is already married though he is filing for an annulment. thanks atty.
January 12, 2009 1:30 PM

Atty. Gerry T. Galacio said...


Please read my post titled Support for abandoned woman and family. The principles and
procedures are the same, that is, avail of a Protection Order under RA 9262 to compel the
man to provide support to the pregnant woman and the baby later on.
January 13, 2009 3:46 PM

Anonymous said...
just a follow up to the previous post atty.. what if the wife of the man filing for annulment
knew of this situation (pregnant other woman). what might possibly happen to the case? will
it favor the wife now? pwede ba silang ipakulong ng wife?
January 14, 2009 1:32 PM

Atty. Gerry T. Galacio said...


The wife has several options: file a case for concubinage against her husband and the
mistress, or psychological violence under RA 9262.
January 15, 2009 12:32 AM

Jojo said...
Dear Atty.,
I am the ninong of three, wonderful kids who I love so much as if they were my own children.

In fact, I am the one supporting the education of one of the children, the middle of the three,
whom I am the most closest to emotionally and feels the same way for me in return.
The father and mother lives in my house as my sort of "assistance" to them and also I want
to be with the children and experience their presence.
However, the mother has been errign and doing some strange, mysterious actions lately like leaving the house in the early afternoon, telling the kids that she is going to buy school
supplies or whatever but then she comes home the following day at 10 a.m. intoxicated. We
investigated and have discovered that she is seeing/dating a SP02 policeman. We also
discovered that this has been going on for a long time now. The husband and wife are
always fighting because of this but the wife who is an Ilongga (and not so educated) is very
"mataray" and she threatens the husband that she will take the kids away and the husband
will not see them anymore (which also means I will not see them too since I am close to the
husband) and also demands "sustento" if ever they will spearate. She screams at the top of
voice and is very scandalous specially when she is drunk. I pity my kumpare, the husband,
because he is so tolerant and understanding and tries his best to try to mend the problem
peacefully but the wife is very abusive and repeats her galivanting out at night. Also, I pity
the husband because he is a part time reflexologist and whatever he earns he gives to her
so that she can save the money but instead it appears she spends it on her drinking spree
and we have been told by witnesses that she sometimes pays for the bill of the whole
"barkada" of that policeman that we think she is having an affair with. Dapat with all the
money he has been remitting to her from his part-time work he should already ahve saved
almost 20K but when he asked the wife - wala daw! Geesh! She spends like there is no
tomorrow and living the life of a single woman! To top it all she has in the past verbally
threatened the husband re kilala nya isang pulis against him. We strongly believe that she is
having an extra martal affair because of her regularity going out, lying and leaving the kids all
alone with no one to watch them and retuning back the following morning but we have no
solid evidence but all verbal reports from friends and witnesses and we do believe they are
reliable. I and the husband are distressed by this and the husband would like to separate but
he would also like to have custody of the children since he is the breadwinner (and of course
I would also like to continue my assistance for the kids but I am at a dead end since I have
no blood relations to them whatsoever).
I (or rather the husband) needs help as he is a battered husband psychologically by the wife
but what is a common concern for both of us is that he at the same time will be able to gain
custody of the kids specially the 2nd of the three. Please help! Whom can we approach for
legal assistance - he doesn't earn much so is there some sort of a free public assistance
office somewhere that can be of REAL assistance and be sympathetic to his cause?
We are in a dead end about this since neither of us have any legal experience or

connections.
Thank you so much and please we need help.
March 09, 2009 10:51 AM

Jojo said...
Dear Atty.,
Oh I forgot to mention that the SP02 police officer I was talking about is also a married man
the info we got was from other policemen working in the same precint he is assigned to. Can
the husband also file a case against that police officer aside from pursuing his cause with his
wife and gaining custody of his kids?
March 09, 2009 11:27 AM

Atty. Gerry T. Galacio said...


Please also read my post titled Can a mother be deprived of custody of her child? (look for
the link in the sidebar). If the husband is able to prove that there are compelling grounds for
depriving the mother of custody, then the court will grant custody to the father.
Your friend can file administrative case against the police officer with the IAS (Internal Affairs
Service of the PNP). He can also inquire with the Public Assistance Bureau of the Office of
the Ombudsman in Agham Road, Quezon City, if he can file the case directly with the
Ombudsman.
As to the legal separation, custody of kids, your friend can try to ask for free legal help from
the PAO (Public Attorneys Office) or from the IBP (Integrated Bar of the Philippines) chapter
in your town or city. The IBP chapter offices are usually located in the Hall of Justice of cities.
You can also try to get free legal help from the OLA (office of Legal Aid) of the UP College of
Law in Diliman, Quezon City.
The DOJ Action Center also acts on complaints, requests for assistance and legal queries of
walk-in clients of the DOJ. For legal assistance please visit the Department of Justice Action
Center (DOJAC) Main Office, Ground Floor, Multi-Purpose Building, Padre Faura Street,

Ermita, Manila; Telephone no: 523-84-81; Email Address: dojac@doj.gov.ph or visit any
Regional/Provincial/City Prosecution Offices in your locality.
March 10, 2009 5:13 PM

Parenthood said...
Good Day Atty. Galacio
i lost my love to my husband so i had committed adultery and now i'm pregnant with another
man. i had a 5yr old daughter with my husband. since i am pregnant with my 5yr old
daughter, we live with my parents. though he's giving a financial support, still its lack. now
he's working abroad, he earns money but he gives us no half of his salary and sometimes
delayed for how many months. when he found out that i'm pregnant, he took my daughter
away from me and he decided that his sister in law would take care of my daughter while
he's back in abroad now. what will be my rights for my daughter? they even don't want me to
borrow my daughter... pls help me. i want my daughter back.
April 06, 2009 10:20 AM

Atty. Gerry T. Galacio said...


You can file a petition for Protection Order under RA 9262 to regain custody of your child.
Please read my posts on RA 9262(look for the links in the sidebar).
From a Biblical point of view however, the loss of love is not a ground for annulling a
marriage, or an excuse for being involved in an adulterous affair.
April 07, 2009 7:13 AM

Anonymous said...
ggod morning..my brother got married last 2006 thru a civil wedding..and he had 2 kids now
2 years old and 4 months old...
He had a hard time to look fof a job because of his age so my parents provide everything
and me too..I was the one who provide money for 2 caesarian operations that cost

35thousand each...from giving birt..and i was very much disappointed because the girl
choose to live in her parents house and since the birth of the children my parents were not
able to see them because the wife doesnt allow my brother to visit my parents in davao..But
my parents were the one whoe provide for the milk,foods and clothings because of my
brother situation..
then last week his wife told him that she will changed the family name of my 2
nephews..because my brother cant give what she want i am overseas..i spent more money
since 2005 for her knowing that she will be a good mother because she is a christian...
my parents were in davao and the children were in manila...do my brother had a right to
bring my nephew to visit my parents in davao? or does his wife has the right to change the
family name of the kids because she want too?whats our right as a provider of the kids
needs...im overseas and i felt so bad for the kids because the woman cant provide anything
when it talks about the future..til now my parents provide everything especially the milk..the
side of the girl did not provide anything because they have no money...my parents continue
to give money even if they were not able to see the kids...when they bay were hospitalized i
sent money for the private hospital..i just want an answer if she can easily changed the
family name of my nephews?what are the grounds of changing it...
hope to hear from you atty..thanks and have a blessed holy week...
April 09, 2009 8:37 AM

Atty. Gerry T. Galacio said...


The children are legitimate and therefore their surnames are that of their parents (middle
name is the mothers surname and the surname is your brothers surname). The wife cannot
simply by her whim and personal desires have their names changed.
April 14, 2009 9:11 AM

Anonymous said...
Hello Attorney,
I just learnt about Republic Act 9262 or the "Anti-Violence Against Women and their Children

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

party anyway, will I be legally in trouble? Will he have a case against me if I don't give any?
Sorry for the long story.
April 16, 2009 8:30 PM

Atty. Gerry T. Galacio said...


Please read the court decision in your declaration of nullity case. That court decision outlines
what obligations (financial, custody, etc) you and your ex-husband have towards your
children.
April 20, 2009 6:57 AM

LAZO DENTAL CLINIC said...


Good Day Sir,
We really need your advise..My cousin has 3 children with his ex girlfriend a 12 year old girl
and twin boys age 9.They are not married, the twins is after his name. After they broke up 9
yrs ago the family of the girl didnt allow my cousin to visit his children even the mother dont
let him visit their children. My cousin is jobless got depressed and rehabilitated due to
alcoholic addiction, neither his father and siblings didnt allow them to visit the children, my
cousin got out from rehab center and tried to visit his children again but still they keep the
children far from him. they found out that the mother of his children got married and has 2
children from her husband and the sad part of it she intruduce the guy as the father of my
cousins 3 children. The guy is working but the mother is not. With these situation what rights
does my cousin have to his children? He is not after the custody because he cant afford
since he is jobless, can he borrow the children for at least 1 overnight stay with him once in a
while? Does his siblings and father who are capable of helping his children with their needs
have the right to get a custody or a visitation rights. Does the children has the right to know
who their father really is?....Thank you hope you can help us soon.
tin
May 07, 2009 12:07 PM

Atty. Gerry T. Galacio said...


Please read my Legal Updates post titled Visitation rights over illegitimate children (look for
the link in the sidebar)
The issue of visitation rights and support are separate. As you can read in this post
("Visitation rights"), your cousin has these rights and for your children to know you as their
biological father. If your cousin and the childrens mother cannot agree, then your cousin will
have to go to court to let it decide on the terms and conditions of his visitation rights.
Does his siblings and father who are capable of helping his children with their needs have
the right to get a custody or a visitation rights.It is only your cousin (the childrens father)
who has visitation rights. Your cousins siblings and parents do not have these rights.
May 08, 2009 8:02 AM

Anonymous said...
dear atty...
good day. nagbabakasali na matulungan nyo ako sa sitwasyon ko. ganito kasi ako noon,
from the celebration of our marriage 2003(civil in Manila City Hall), i stand as the
breadwinner for my husband and an unborn child. we lived in his parents house, i sent him to
finish his college educ. (he was turning in 2nd year but have to stop in 1st semester kasi i
was pregnant and i ask him na unahin muna yung baby). and then, late 2004, we began
fighting even in the littlest thing. he became suspiscious because i work so hard i leave
house 5am and return almost midnight due to extend overtime. at first, nakikipaghiwalay na
ako dahil inaabuso na nya ako, psychologically, mentally...and physically,he hit me several
times on the face,pumapasok ako sa ofc na mixed yellow and purple ang mukha ko, still i
covered it up sa ofcmates ko. pero hindi sya pumayag, he was in 3rd yr then. in short,
nabola nya ako at nangako na magbabago at once na makatapos sya, hihinto na ako ng
work at he will provide for us and get our own place. in 2005, nakikipaghiwalay na sya,
ayoko naman kasi yung bata, paano na? he continued insulting me with words para ako na
mismo humiwalay sa kanya. he provokes me para magalit, he always does. then when i got
pregnant with our 2nd child, he despised me. hindi daw sa kanya yung bata. buntis ako at
lagi nya akong pinapaiyak at ginagalit, very unhealthy para sa baby. i was very concerned to
the child i have to escape from his sight. he keeps insisting na maghiwalay na kami despite
the fact na buntis ako. he'll finish his studies oct 2006. bakit ngayon pa nya naisip
makipaghiwalay. para syang wala sa katinuan. natatakot na ako sa kanya. nagpaaalam ako
sa in-laws ko na magbabakasyon sa parents ko as soon as i filed my maternity leave...

syempre, sinama ko yung panganay. hindi pa ako nakakapanganak, pinuntahan ako sa


parents ko at nakikipag-ayos makipaghiwalay. so wala na kaming nagawa. nung manganak
ako, wala sya, 3 days passed before he came to the hospital. at inaway away naman ako ng
parents nya dahil ang gusto nila, sa kanila na daw yung panganay dahil may aalagaan na uli
akong bago. (what kind of thinking is that?) at first, nakukuha nila yung panganay kung kelan
nila gusto, kahit umuulan at ibabalik sa akin ng may sakit, dahil dun kaya hindi na ako
pumayag. hindi ko naman sila pinagbawalan dumalaw. hindi sila kuntento dun. nag-file sila
against me, "rotative custody" over minor children... after disowning my bunso? in terms of
support, he only give what he wants, parang relief goods sa evacuation center, noodles,
sardinas, toothpaste and others i call junks because it hurts my feeling as a mother seeing
him treating my kids beggar. he never gave money. and now my panganay is turning 7 years
old, i'm afraid he might get what he wants. gusto nya kasing madala kung saan nya gustuhin
ang panganay for his parents (the first and only apo). he, himself, dont have any "amor" sa
bata... just treating the child a toy or a display or a trophy. he's not even a good example as a
person dahil sa harap mismo ng mga anak ko, minumura nya ang tatay ko. at lahat sa
petition nya ay kabaligtaran ng totoong nangyari.
what should i do to get spousal support?
hindi naman sa masamang motibo, mababawi ko ba ang pinagpaaral ko sa kanya para
naman maibigay ko sa mga bata?
anong gagawin ko para matapos na ang paghihirap ko sa kanya?
how will i fight for justice?
June 02, 2009 3:39 PM

Atty. Gerry T. Galacio said...


Please read my post Support for abandoned woman and family (look for the link in the
sidebar) or download from my Family Matters website the free PDF newsletter dated Issue
no. 004 July 31, 2008 "Financial support for abandoned woman and her children".
Essentially, through a Protection Order, the court will order your husband and his employer to
set aside a certain percentage of his salary to be remitted directly to you and your children
on a monthly basis. If your husband and/or his employer fail to do so, they can be charged
with contempt of court.
The amount of support is balanced between the necessities of the person asking for support
and the financial capability of the person from whom support is being asked.

To settle the issue of custody or the parental visits, you have to file a petition in court asking
it to set the terms and conditions your husband can have custody of your children.
You also have the option of filing RA 9262 cases against your husband (please read my RA
9262 posts; look for the links in the sidebar).
Husbands and wives are obliged to support each other. It is doubtful if you can have the
money you spent for your husband's college studies reimbursed to you.
For free legal assistance, please contact the DOJ Action Center. The DOJAC acts on
complaints, requests for assistance and legal queries of walk-in clients of the DOJ. For legal
assistance please visit the Department of Justice Action Center (DOJAC) Main Office,
Ground Floor, Multi-Purpose Building, Padre Faura Street, Ermita, Manila; Telephone no:
523-84-81; Email Address: dojac@doj.gov.ph or visit any Regional/Provincial/City
Prosecution Offices in your town or city.
You can also try to seek help from the SALIGAN (Sentro ng Alternatibong Lingap Panligal)
Manila, G/F Hoffner Building, Social Development Complex, Ateneo de Manila University,
Loyola Heights, Quezon City, Philippines; Tel. (632) 426-6001 loc. 4858-4860, Telefax: (632)
426-6124; E-mail: saligan@saligan.org; Website: www.saligan.org
June 04, 2009 10:21 AM

dali1966 said...
dear atty, my girlfriend has a malaysian husband, they are not yet divorced but due to his
continued affairs my gf has moved back to phlippines from malaysia, her husband constantly
threatens to come to the philipinnes and take her son away from her.
Could you please advise her as to his rifghts to do this. How does malaysian law stand up in
the philipines. Is he just trying to scare her or is it possible that he is correct and he can coe
to take her son from her?
Thank you very much in advance of your responce.
Yours sincerly
Ian
July 15, 2009 3:40 PM

Anonymous said...
Dear attorney,
Good day po.
Kailangan kopo sana ng advice or opinon nio kung ano po ang dapat kong gawin..
Married na po kami ng husband ko for 5 years, pero nag decide na po kami na mag hiwalay
na coz di na po talaga kami magkasundo.
Nagkaron ako ng affair sa married man. Tapos na po yun bago ko pa man cia maging
bf.Alam po ng asawa ko ang past ko bago pa kami ikasal.pero sa loob po ng 4 na taon ng
pagsasama namin madalas po na binubugbog nia ko at sinasabihan ng masasamang salita
dahil sa pangit kong nakaraan.Lagi po niang iniinsist na nanlalake ako kahit hindi naman.
Tiniis ko po yun sa paniniwalang nagkakaganun lang cia kasi nga dahil sa past
ko.Pinapatawad ko cia everytime na humihingi cia ng tawad at sinasabing di na mauulit pang
muli.Pero nung mangyari pa po ulit yun, gumawa cia ng sulat sa magulang ko na ipakulong
na cia pag naulit pang saktan nia ko.Hindi na nga po nia ko nasasaktan pero patuloy pa din
po ang mga masasakit na salita na sinasabi nia sa akin.
Ang problem ko po ngaun ay kung may karapatan po ba ako na mag file ng custody para sa
akin ang anak ko na 2 years old lang?Usapan po namin na tuwing week end sa kanya pero
di po natutupad kasi lagi din nia kinukuha ang anak ko sa tuwing gusto nia. Lagi po ciang
nag iinom at puro barkada.Wala po kaming trabaho pareho pero may business po kami na
pinatayo ng magulang nia.. dun po kami kumukuha ng pangsustento sa anak namin.At
savings para sa anak namin.Ngayon po ako lang ang nag mamanage ng business namin
kasi nasa lupa po namin yun.Pede po bang mag file ako ng child custody or pananakit sa
akin kahit matagal na po yung ngyari?. aware po ang lahat na ginagawa sa akin yun ng
asawa ko..
sana po matulungan nio ako..
July 16, 2009 11:53 AM

Atty. Gerry T. Galacio said...


Your child is below seven and so custody belongs to you as the mother.
If the acts of violence were committed AFTER March 2004 (when RA 9262 Anti-Violence
Against Women and their Children Act of 2004 became effective), then you can file an RA
9262 case against your husband. Please take note however that there is a prescriptive
period of four years within which to file the case. This means that within four years after the
acts of violence were committed, the case must be filed. Beyond the four year period, you

can no longer file the case. For example, if the violence took place in April 2004, then it can
no longer be filed today.
Seek the help of the Women and Childrens desk Officer of the nearest PNP Station in filing
a case against your husband.
Under RA 9262, you can ask the court to issue a Protection Order so that your husband can
be forced to leave your conjugal dwelling and to stay away from you and your child. Please
read my RA 9262 posts (look for the links in the sidebar). Ask the help of the DSWD in your
town or city in filing for a Protection Order under RA 9262.
July 17, 2009 9:03 AM

Atty. Gerry T. Galacio said...


Ian,
The son is Malaysian in citizenship since his father is Malaysian. As to the laws regarding his
custody, it is Malaysian law that will prevail. Please consult other lawyers who may have
opinions different from mine.
For free legal assistance, please contact the DOJ Action Center. The DOJAC acts on
complaints, requests for assistance and legal queries of walk-in clients of the DOJ. For legal
assistance please visit the Department of Justice Action Center (DOJAC) Main Office,
Ground Floor, Multi-Purpose Building, Padre Faura Street, Ermita, Manila; Telephone no:
523-84-81; Email Address: dojac@doj.gov.ph or visit any Regional/Provincial/City
Prosecution Offices in your town or city.
July 17, 2009 9:16 AM

Anonymous said...
Hi, i would like to ask about my nieces' situation and request your help on what options we
can explore. My sister's husband has been having affairs with different women, although not
simultaneously. The recent one was exposed by the other woman herself, with photos and
friends to prove their affair. My eldest niece saw the photo and having heard her parents'
discussion over it has affected her psychologically. She verbally told her mom that it's ok if

her mom decides to kick her dad out, sensing that the issue may affect her mom's
pregnancy. To make the story short, my sister did not kick her husband out and since the
revelation she has been focusing more on her husband than the psychological effect on her
daughter (her performance in school has deteriorated and she has been telling people how
bothered she was that her dad had his arms wrapped around another woman). To make
matters worse, her husband has been feeding negative things to my niece regarding her
grandparents (my parents) and the rest of our family. He even forbids my niece from going to
my parent's house or going with my mom. We can see that my niece is getting very confused
as she is very close to my mom and she is being forbidden to be with her all of a sudden.
She has now been showing episodes of tantrums, crying violently to tell my mother she can
no longer come to visit (my mom and dad live a few houses away from my sister's house and
my mom is the one who accompanies my niece to and from the school). This is very
confusing for a child of 7 years. My sister, instead of mediating, sides with her husband and
allows him to dictate every decision in their family no matter how detrimental to their
daughter. As a backgrounder, my brother in law has been involved in and fired for
mishandling of finances in his previous jobs. Aside from womanizing, he also is a financial
burden as he even spends his children's money to buy branded clothing. Once, some people
from the barangay went to their house to collect money he owed a woman and left his wife to
face them. My niece was likewise home to witness the confrontatoin. He has been making
loans under my sister's name and spends the money for his own pleasure. All loans are
being left to my sister for settling. Is there any way that we can contest the custody of the
chid, knowing very well that the child will choose her grandmother and that both parents are
psychological not capable of protecting her? Can I or any of my other siblings file adoption
since we are all living comfortably abroad? If these options are not possible, can we request
temporary custody of my niece till her parents are cleared psychologically?
September 04, 2009 4:24 PM

Atty. Gerry T. Galacio said...


Please surf to my website www.familymatters.org.ph and read Rule on Guardianship of
Minors A.M. No. 03-02-05-SC and Rule on Custody of Minors and Writ of Habeas Corpus
in relation to Custody of Minors A.M. No. 03-04-04-SC. Please also read my post
Procedures in adoption under RA 8552 (look for the link in sidebar).
Adoption is not feasible since I doubt if the parents would give their consent to it. As to filing
a petition for the termination of the parental authority, or of temporary custody, that will be a
very messy thing, with you and/or your mother involved in a legal tug of war with your sister
and her husband over the child. The child will get caught in a much more complicated and

traumatic situation. These are legal options which you and/or your mother should weigh very
carefully.
Your mother can try to get the child to counseling. She can try to contact Ptr. Clem Guillermo
and his wife, well-known family counselors, through their nightly radio program Heartline
aired over DZAS 702 Khz, 10:30 to 12. I think the DZAS tel. no. is 92-11-52. The program is
available on the Internet at http://www.febc.ph/stations/dzas/index.html . Ptr. Clems office is
in the Back to the Bible Building, corner of West Avenue and EDSA (opposite SM City North
EDSA).
If you prefer a psychiatrist to counsel your niece, please try to contact Dr. Randy Dellosa at
http://www.randydellosa.com/
September 07, 2009 7:58 AM

Anonymous said...
Dear Atty,
I am a single mom of an 8 month child. Is it possible to ask a support from his father even if
he's living abroad. He has the dual citizenship of Filipino and British. I just want to be fair
enough for my son since his father have 3 children in UK and Im pretty sure what my son is
receiving right now is not as what the rule says of an illegitimate children. If its possible
where will I go?
October 01, 2009 5:41 PM

Atty. Gerry T. Galacio said...


Please read my post Support for financial support for abandoned woman and family (look
for the link in the sidebar). Read also the comments and my replies to the comments.
October 07, 2009 9:50 AM

Anonymous said...

Greetings Atty.
I would just like to ask, can I file a case for custody sa 2 children ko, hindi kami kasal ng
kinakasama ko and foreigner sya, since nalaman ko na may babae sya na binabahay
ngayon nakikipaghiwalay nako sa kanya pero gusto ko makuha yung custody ng dalawang
anak namin,kailangan ko lang po ng legal advice para alam ko yung hakbang nagagawin ko.
November 25, 2009 8:36 AM

Atty. Gerry T. Galacio said...


Parental authority and custody belong to you since your children are illegitimate. You can file
a petition for Protection Order under RA 9262 in order to regain custody of your children.
Please read my RA 9262 posts (look for the links in the sidebar).
The following are offices or agencies you can ask help from. The addresses are for Metro
Manila but you can try to contact their regional offices (specially the NBI).
Department of Social Welfare and Development (DSWD) Crisis Intervention Unit (CIU)
Rehabilitation Unit Tel. No.: (02) 734-8635 NCR Ugnayang Pag-asa, Legarda, Manila Tel.
Nos.: (02) 734-8617 to 18
Philippine National Police (PNP) Women and Childrens Concern Division (WCCD) Tel. No.:
(02) 723-0401 loc. 3480 Call or text 117 (PATROL 117)
National Bureau of Investigation (NBI) Violence Against Women and Childrens Desk
(VAWCD) Tel. Nos.: (02) 523-8231 loc. 3403
DOJ Public Attorneys Office Women's Desk, Tel. Nos.: (02) 929-9010; 929-9436 to 37
November 28, 2009 3:30 PM

Anonymous said...
Goodmorning Atty,
I just need your opinion about this. If a mother has the custody of the child and the parents
are not legally separated by court, they just distant themselves because the guy has an affair

with other girls, too many to count by they are in different places and he has another child to
one of his affairs. So he falls under Adultery/Concubinage.
When the mother had the child, she was still with the guy so in the birth certificate the "socalled" father acknowledge the child and lately the mother knew that the guy have different
affairs with other girl.
Note that they are not married and they are separated for almost 4 years.
The mother didn't accept any support coming from the guy and she raised the child with the
help of her parents and relatives.
My question is that, the child has his father's surname. The mother wants to have her
surname used by his child. What are the things needed so that the child can have the
mothers surname?
Thank you and have a good day
December 20, 2009 11:01 AM

Atty. Gerry T. Galacio said...


Please read my post What surname should illegitimate children use? Problems and issues
with RA 9255 and its implementing guidelines (look for the link in the sidebar).
First of all, in terms of parental authority and custody, the child is illegitimate and so sole
parental authority and custody belong to the mother. This is true even if the child is using the
biological fathers surname.
It will be very difficult to change the childs surname from that of the father to the mothers
surname. One, RA 9255 was meant for the benefit of the child in erasing the stigma of
illegitimacy. Two, there have Supreme Court decisions that parents cannot choose for their
children what surname they might want to use. Three, the childs use of the fathers surname
is beneficial since this will be proof of his/her right to inherit from the father under Article 176
of the Family Code.
I said it will be difficult but not necessarily impossible. Please consult other lawyers who may
have opinions different from mine or who may be able to suggest alternative courses of
actions.

December 23, 2009 9:46 AM

Dutch23 said...
My partner and I have decided to separate after 3 years of living together. We are not
married and we have 2 daughters who are 3 years old and 2 years old. Both our daughters
are carrying my surname with my consent. She works for a cruise liner based in America and
this January she will be leaving again for another 10 months duty, this will be her second trip.
I work in a call center in alabang. What she wants is when she leaves again that our
daughters stay with her mother in cavite. I on the other hand would like the kids to stay with
me in paranaque while she is away. I understand that she has priority over kids since they
are below 7 years old
My question is, when she leaves, does she have the right to deny my claim as the father and
not have custody of the kids? I understand when she gets back then she has priority and I
would willingly give back the children.
And If I am unable to have custody of the kids, what are my options or rights of visitation
What are the laws on the family code that can be used to apply to our situation and what are
the laws that apply to me as a father?
Hoping for your legal advice. Thank You
Warren
January 29, 2010 5:34 PM

Atty. Gerry T. Galacio said...


Warren,
What she wants is when she leaves again that our daughters stay with her mother in cavite. I
on the other hand would like the kids to stay with me in paranaque while she is away. I
understand that she has priority over kids since they are below 7 years old
[1] Your children are illegitimate and so under Article 176 of the Family Code, sole parental

authority belongs to the mother. Even if your children are using your surname in their birth
certificates with your consent, they remain illegitimate. Even if your children reach seven
years of age and above, they will remain under their mothers parental authority.
Parental authority (which includes custody and the right to make all decisions regarding the
children) belongs to the mother. She can thus decide as to which person she can entrust the
children while she is away.
[2] What you have as the father has is visitation right. Please read my post on Visitation
rights over illegitimate children (look for the link in the sidebar). If you and the mother cannot
agree on the terms and conditions of the visitation, you will have to file a petition asking the
court to set such terms and conditions.
February 01, 2010 10:59 AM

Monday, August 02, 2010

How do courts determine which parent has the right of custody of the
children in legal separation, annulment or declaration of nullity?
Please read my previous posts on the issue of custody:
Can a mother be deprived of custody of her child?
Custody battles over children: what determines fitness of a parent over another?
Custody battles over children between grandparents and a father or mother
The Supreme Court Rule on Provisional Orders A.M. No. 02-11-12-SC enumerates the
procedures that our Family Court judges must follow in deciding the issue of custody in
relation to petitions for legal separation, annulment of voidable marriage or declaration of
nullity of marriage. Please take note that:
(1) This Rule became effective in 2003 or before RA 9262 Anti-Violence Against Women and Their
Children Act of 2004 became effective in 2004; and
(2) This Rule applies specifically to petitions for declaration of absolute nullity of void marriage or for
annulment of voidable marriage, or for legal separation.
RA 9262 has its own Implementing Rules and Regulations and Rule on Violence Against Women
and Their Children A.M. No. 04-10-11-SC. The speakers (active and retired Family Court judges) in
the MCLE seminars I am attending say that they also use the Rule on Provisional Orders as

guidelines in granting orders in RA 9262 cases whenever appropriate.

Main guideline for award of custody: Best interests of the child


Section 4 of the Supreme Court Rule on Provisional Orders states:
In 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 give paramount consideration to the material and moral welfare of the child.
The court may likewise consider the following factors:
(a) the agreement of the parties;
(b) the desire and ability of each parent to foster an open and loving relationship between the child
and the other parent;
(c) the childs health, safety, and welfare;
(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 parent;
(e) the nature and frequency of contact with both parents;
(f) habitual use of alcohol or regulated substances;
(g) marital misconduct;
(h) the most suitable physical, emotional, spiritual, psychological and educational environment; and
(i) the preference of the child, if over seven years of age and of sufficient discernment, unless the
parent chosen is unfit.

Order of preference in the award of custody


In keeping with Articles 214 and 216 of the Family Code, Section 6 of the Supreme Court Rule
states:
The court may award provisional custody in the following order of preference:
(1) to both parents jointly;
(2) to either parent taking into account all relevant considerations under the foregoing paragraph,

especially the choice of the child over seven years of age, unless the parent chosen is unfit;
(3) 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
disqualified;
(4) to the eldest brother or sister over twenty-one years of age, unless he or she is unfit or
disqualified;
(5) to the childs actual custodian over twenty-one years of age, unless unfit or disqualified; or
(6) to any other person deemed by the court suitable to provide proper care and guidance for the
child.
The 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.
Section 5 of the Rule states that appropriate visitation rights shall be provided to the parent
who is not awarded provisional custody unless found unfit or disqualified by the court.

Atty laserna
Juvenile justice and welfare act
The Juvenile Justice and Welfare Council (JJWC) under the
Department of Justice has issued the implementing rules and
regulations of R.A. No. 9344, or the Juvenile Justice and Welfare
Act of 2006.
It cites Article 40 of the United Nations Convention on the Rights of
the Child, which provides that the members states have the duty to
recognize the right of every child alleged as, accused of, adjudged,
or recognized as, having infringed the penal law to be treated in a
manner consistent with the promotion of the childs sense of dignity
and worth, taking into account the childs age and desirability of
promoting his/her reintegration; that whenever appropriate and

desirable, the State shall adopt measures for dealing with such
children without resorting to judicial proceedings, providing that
human rights and legal safeguards are fully respected; that the
member states shall ensure that children are dealt with in a
manner appropriate to their well-being by providing for, among
others, a variety of disposition measures such as care, guidance and
supervision orders, counseling, probation, foster care, education
and vocational training programs and other alternatives to
institutional care.

A main feature of R.A. No. 9344 is that CICIL are vrequired to


underso a diversion prgram which refers to an alternative, childappropriate process of determining the responsibility and treatment
of a child in conflict with the law on the basis of his/her social,
cultural, economic, psychological or educational background without
resorting to formal court proceedings, in addition to intervention
programs refer to a series of activities designed to address issues
that caused the child to commit an offense and which may take
the form of counseling, skills training, education, and other
activities that will enhance his/her psychological, emotional and
psycho-social well-being.
Under R.A. No. 9344, juvenile justice and welfare system is
defined as a system dealing with children at risk and children in
conflict with the law, which provides child-appropriate proceedings,
including programs and services for prevention, diversion,
rehabilitation, reintegration and aftercare to ensure their normal
growth and development.
In addition to the basic human rights of a citizen under Art. III (Bill
of Rights) of the 1987 Constitution, as implemented by relevant
laws, every child in conflict with the law shall have the right:
1. not to be imposed a sentence of capital punishment or life
imprisonment, without the possibility of release;
2. to be detained or imprisoned only as a last resort, which shall be
for the shortest appropriate period of time;

3. to be separated from adult offenders at all times, to be conveyed


separately to or from the court during court hearings, and to await
the hearing of his/her own case in a separate holding area.
4. to bail and recognizance, in appropriate cases;
5. to testify as a witness in his/her own behalf under the rule on
examination of a child witness;
6. to have his/her privacy respected fully at all stages of the
proceedings;
7. to have restrictions on his/her personal liberty limited to the
minimum, and where discretion is given by law to the judge to
determine whether to impose fine or imprisonment, the imposition
of fine being preferred as the more appropriate penalty;
8. to automatic suspension of sentence;
9. to probation as an alternative to imprisonment, if qualified under
the probation law;
The concept of restorative justice guides the juvenile justice and
welfare sysem. It is a principle that requires a process of resolving
conflicts with the maximum involvement of the victim, the offender
and the community to achieve reparation for the victim,
reconciliation of the offender, the offended and the community,
reassurance to the offender that he/she can be reintegrated into
society; and enhancement of public safety by activating the
offender, the victim and the community in prevention strategies.
A special procedure for taking child into custody is mandated by
R.A. No. 9344.
From the moment the child is taken into custody, the law
enforcement officer shall immediately notify the childs
parents/guardians, the local social welfare and development officer
(LSWDO), and the Public Attorneys Office of the childs
apprehension, not later than eight (8) hours after apprehension.
After explaining to the child in simple language and in a language or
dialect that he/she can understand the reason for placing the child

under custody, the offense that he/she allegedly committed, and


his/her constitutional rights, the law enforcement officer shall
immediately start the determination of the age of the child abd take
the child immediately to the proper medical and health officer for a
thorough physical and mental examination and thereafter turn over
the custody of the child to the local social welfare and development
officer (LSWDO) or other accredited non-government organizations
immediately but not later than eight (8) hours.
A child in conflict with the law shall only be searched by a law
enforcement officer of the same gender.
The law enforcement officer, specifically from the Women and
Children Protection Desk where present, shall take the statement of
the child during the initial investigation in the presence of the
childs counsel of choice or in the absence thereof, a lawyer from
the Public Attorneys Office, his parents, guardian, or nearest
relative, as the case may be; and the local social welfare and
development officer. In the absence of the childs parents, guardian,
or nearest relative, and of the LSWDO, the investigation shall be
conducted in the presence of a representative of an NGO or faithbased group, or a member of the BCPC.
In taking the statement of the child, the law enforcement officer
shall observe the following guidelines:
1. The investigation shall be child friendly and be conducted in a
non-intimidating manner.
2. The interview of the child shall be conducted in a separate
interview room to make the child feel comfortable and free to
express him/herself.
3. The law enforcement officer shall use simple and understandable
language in taking the statement of the child during the initial
investigation.
4. The law enforcement officer shall allow the LSWDO, or the
persons taking his/her place as above enumerated, to actively assist
in conducting the initial investigation.

5. There should be enough privacy to avoid unnecessary


interruptions, distractions and/or participation from non-parties
that could humiliate or make the child uncomfortable.
6. The written statement to be prepared shall reflect the language
used by the child and not the language used by the law enforcement
officer.
The initial investigation shall be conducted in the best interest of
the child and in a manner which allows the child to participate and
to express him/herself freely.
The law enforcement officer conducting the initial investigation shall
ensure that all statements signed or thumbmarked by the child
during investigation shall be witnessed by the childs parents or
guardian, the LSWDO, or if not present, any other social worker, or
counsel in attendance, who shall affix his/her signature to the said
statement.
In the case of a child who is above fifteen (15) years of age but
below eighteen (18) years of age, the law enforcement officer shall
refer the records of the child to the LSWDO for an assessment if the
child acted with discernment.
After the initial investigation, the law enforcement officer shall refer
the case of the child to the LSWDO for intervention in accordance if
the child is 15 years old or below or above 15 but below 18 years of
age and acted without discernment.
Diversion is required if the child is above 15 but below 18 years of
age and acted with discernment and the offense committed carries
an imposable penalty of not more than six (6) years of
imprisonment.
The record of the case shall be referred the prosecutor or judge if
the child is above fifteen (15) but below 18 years of age and acted
with discernment and the offense committed carries an imposable
penalty of more than six (6) years of imprisonment.

In all cases, the law enforcement officer shall turn over the physical
custody of the child to the LSWDO within eight (8) hours from
apprehension, as required under Section 21(i) of R.A. No. 9344,
even if the law enforcement officer has not yet exhausted all
measures to determine the age of the child and even if the initial
investigation has not yet been terminated.
In the event a child whose custody is turned over by the law
enforcement officer is 15 years old or below, the LSWDO shall take
all measures to release the child to the parents or guardians, or to
any of the persons or organizations auithorized by R.A. No. 9344,
and proceed with the development of appropriate programs as
provided by the said law.
From the time he/she takes custody of the child in conflict with the
law, the law enforcement officer shall handle the case of the child
with utmost confidentiality. Particularly, the law enforcement officer
shall:
(a) Use a system of coding that provides aliases for children taken
into custody;
(b) Maintain a separate logbook for children in conflict with the law;
(c) Exclude the public, particularly the media, from the area where
the child is being held in custody pursuant to Section 43 of the Act;
(d) Not provide any detail or information to the public, particularly
the media, that shall lead to the identity of the child;
(e) Keep the results of the medical examination confidential; and
(f) Mark the records of the child and the report on the initial
investigation as confidential.

The prohibited acts when in custody of child are:

1. A child in conflict with the law shall not be locked up in a


detention cell.
2. The child shall not be detained in the provincial, city or municipal
jail, even if there are quarters separate from adult detainees.
3. A child in conflict with the law shall not be searched by a law
enforcement officer of the opposite sex.
4. The law enforcement officer having custody of the child shall
refrain from using vulgar or profane words and from sexually
harassing or abusing, or making sexual advances on the child in
conflict with the law.
5. If handcuffs or other instruments of restraint are used on the
child, the law enforcement officer shall record such fact in the
report on the initial investigation, and the reason for the use of
such instruments of restraint.
6. The law enforcement officer from the time of initial contact with
the child shall avoid displaying or using any firearm, weapon,
handcuffs or other instruments of force or restraint, unless
absolutely necessary and only after all other methods of control
have been exhausted and have failed.
7. The law enforcement officer shall avoid the use of violence or
unnecessary force on the child in conflict with the law.

As to the matter of criminal responsibility, pursuant to Section 6 of


R.A. No.9344, the following shall be exempt from criminal liability:
1. A child 15 years of age or under at the time of the commission of
the offense;
2. A child above 15 years but below 18 years of age who acted
without discernment at the time of the commission of the offense.
The exemption from criminal liability of children under thelaw does
not include exemption from civil liability, which shall be enforced in
accordance with existing laws.

The presumption of minority rule under Sec. 7 of R.A. No. 9344


provides that the child in conflict with the law shall enjoy the
presumption of minority and all the rights of a child in conflict
with the law until he/she is proven to be eighteen (18) years old or
older.
Sec. 7 of R.A. No. 9344 gives any person contesting the age of the
child in conflict with the law prior to the filing of the information in
any appropriate court (the right) to file a case in a summary
proceeding for the determination of age before the Family Court
which shall decide the case within twenty four (24) hours from
receipt of the appropriate pleadings of all interested parties. If a
case has been filed against the child in conflict with the law and is
pending in the appropriate court, the person shall file a motion to
determine the age of the child in the same court where the case is
pending. Meanwhile, the proceedings on the main case shall be
suspended. In all proceedings, law enforcement officers,
prosecutors, judges and other government officials concerned shall
exert all efforts at determining the age of the child in conflict with
the law.
Sec. 20 of R.A. 9344 provides that if it has been determined that the
child taken into custody is 15 years old or below, the authority
which will have initial contact with the child has the duty to
immediately release the child to the custody of his/her parents or
guardian, or in the absence thereof, the childs nearest relative
and notify the LSWDO for the determination of appropriate
intervention and prevention programs for the child.
Under Rule 31.b of the IRR, If the parents, guardians or nearest
relatives cannot be located, or if they refuse to take custody of the
child, the child may be released by the authority having initial
contact with the child to any of the following:
(1) A duly registered non-governmental organization, i.e., duly
licensed and accredited by the DSWD;
(2) A faith-based organization;

(3) A barangay official;


(4) A member of the BCPC;
(5) An LSWDO; or
(6) The DSWD when and where appropriate.
If parents, guardians or relatives are unable to take custody of the
child due to mental or physical incapacity or incarceration, the child
shall be referred to alternative placement such as foster homes, in
addition to what has been provided in the Act.
Immediately after being notified of the apprehension of the child
fifteen (15) years old or below, the LSWDO, under Rule 31.c, shall:
(1) Prepare a case study report on the child; and
(2) Determine the appropriate intervention and prevention
programs in consultation with the child and the person having
custody over the child.
The LSWDO shall also determine if the child is abandoned,
neglected or abused by his/her parents for purposes of filing a
petition for involuntary commitment if necessary.
If the safety of the child is in danger in view of the alleged
commission of the offense, the LSWDO shall encourage the parent
or guardian of the child to request for temporary custody of the
child to the DSWD or licensed and accredited NGOs.
In the event the parent or guardian does not agree to the request
for temporary custody of the child, the LSWDO shall carefully review
the case of the child and file a petition for involuntary commitment
when sanctioned by law, in accordance with P.D. 603 and the SC
Rule on Commitment of Children.

A petition for involuntary commitment may be filed by the LSWDO


with the technical assistance of DSWD, or by the DSWD, per Rule 32,
if:
(a) The child in conflict with the law is found by the LSWDO to be
abandoned, neglected or abused by his/her parents; or
(b) The parents do not comply with the intervention and prevention
programs as determined under Part VII of these Rules.
A child in conflict with the law is considered:
(a) Abandoned when the child has no proper parental care or
guardianship or when the childs parents or guardians have
deserted him/her for a period of at least six (6) continuous months,
as provided in Art. 141(2), Title VIII of P.D. 603;

(b) Neglected when his/her basic needs have been deliberately


unattended or inadequately attended as provided in Art. 141(3) of
P.D. 603; or

(c) Abused when upon the evaluation of the LSWDO, the child is
found to be maltreated, whether habitual or not, as defined in
Section 3(b) of Republic Act No. 7610, or the Special Protection of
Children Against Abuse, Exploitation and Discrimination Act [R.A.
7610].
The filing of the petition for involuntary commitment shall be done
in accordance with the provisions of Title VIII, Chapter 1 of P.D. 603
and the SC Rule on Commitment of Children.
The child in conflict with the law who is above fifteen (15) but below
eighteen (18) years of age shall be exempt from criminal
responsibility, unless he/she acted with discernment. Being exempt,
the child shall be dealt with in the same manner as a child who is

below the age of criminal responsibility as provided in Rule 30 and


Part VII of these Rules. (Rule 33.a).
Per Rule 43.b, The LSWDO, after the law enforcement officer refers
the records of a child who is fifteen (15) years old or above but
below eighteen (18) years old as provided in Rule 25.f, shall prepare
a report indicating an assessment if the child acted with
discernment for the purpose of determining whether to proceed
with intervention or with diversion.
After making an assessment, the LSWDO shall prepare a report
showing the basis for the assessment if the child acted with or
without discernment. This report shall be submitted to the law
enforcement officer handling the case of the child. After receipt of
the report by the LSWDO, the law enforcement officer shall conclude
the initial investigation and refer the case of the child in accordance
with Rule 26. (Rule 34.d).
Under Rule 34.e, If after consideration of the initial assessment that
the child who is above fifteen (15) but below eighteen (18) years of
age acted without discernment, the law enforcement officer refers
the case of the child to the LSWDO for intervention, the LSWDO has
the duty to:
(1) Immediately release the child to the custody of his/her parents
or guardian, or in the absence thereof, the childs nearest relative
or to those listed in Rule 31 when appropriate; and

(2) Determine the appropriate intervention and prevention


programs for the child as provided in Part VII of these Rules.
The intervention programs for the child exempt from criminal
liability may include any or a combination of the following, per Rule
37:
(a) Counseling;
(b) Peer counseling and life skills training and education;

(c) Provision of support services to the family, e.g., parent


effectiveness service, livelihood programs, skills trainings, etc.;
(d) Referral to other agencies for appropriate services, e.g.,
education, health, skills training, etc.; and
(e) Access to child and youth organizations in the community, such
as but not limited to the Sangguniang Kabataan.
The intervention programs determined by the LSWDO also include
programs for the parents and family of the child. The time frame of
the intervention programs and the outcome desired shall be
specified.
Per Rule 39, If the child and the parents, guardian or persons having
custody of the child fail to comply with the intervention program,
despite exhausting all efforts to assist them, the LSWDO may file
the proper petition for involuntary commitment of the child
pursuant to P.D. 603.
Under Rule 40, diversion refers to an alternative, child-appropriate
process of determining the responsibility and treatment of a child in
conflict with the law on the basis of his/her social, cultural,
economic, psychological or educational background without
resorting to formal court proceedings.
In implementing diversion, the following principles shall be
considered:
(a) Use of positive measures;
(b) Full mobilization of all possible resources, which include the
family, volunteers, schools and other community institutions;
(c) Effective, fair and humane dealing with the child; and

(d) Promotion of the well-being of the child.


Per Rule 41, pursuant to Section 23 of the Act, the child in conflict
with the law shall undergo diversion proceedings if he/she:
(a) Is above fifteen (15) years but below eighteen (18) years of age;
(b) Acted with discernment; and
(c) Allegedly committed an offense with an imposable penalty of not
more than six (6) years of imprisonment if diversion is conducted at
the barangay, police or prosecutors level, and not more than twelve
(12) years of imprisonment, if diversion is resorted to by the court.
Under Rule 42, as provided under Section 24 of the Act, if the
imposable penalty for the offense committed is not more than six
(6) years of imprisonment, diversion may be conducted at the:
(a) Katarungang Pambarangay level under the Punong Barangay as
provided in Rule 43;
(b) Police investigation stage under the law enforcement officer as
provided in Rule 44; or
(c) Inquest or preliminary investigation stage under the prosecutor
as provided in Rule 55.
If the offense with the imposable penalty of not more than six (6)
years imprisonment is a victimless crime, the diversion proceedings
shall be conducted by the LSWDO in coordination with the BCPC.
If the imposable penalty for the offense committed exceeds six (6)
years of imprisonment but not more than twelve (12) years of
imprisonment, diversion may resorted to only by the court.

Undeer Rule 43, etc., the rules of the Katarungang Pambarangay


may apply. A child in conflict with law may undergo diversion
proceedings outside the criminal justice system when his/her case is
referred to the barangay through the Lupon Tagapamayapa.
Diversion at the Katarungang Pambarangay level shall be conducted
by the Lupon Tagapamayapa, chaired by the Punong Barangay, with
the assistance of the members of the BCPC, as provided in Section
23 (a) of the Act. The Punong Barangay shall conduct mediation,
family conferencing and conciliation and, where appropriate, adopt
indigenous modes of conflict resolution with a view to
accomplishing the objectives of restorative justice and the
formulation of a diversion program.
The child and his/her family shall be present in the conduct of these
diversion proceedings. The offended party may participate in the
diversion proceedings. The absence of the offended party in the
diversion proceedings or his/her disagreement in its conduct shall
not prevent the proceedings from being conducted. The Punong
Barangay shall, however, endeavor to obtain the participation and
the consent of the offended party in the formulation of the diversion
program.
Pursuant to Section 27 of the Act, the Punong Barangay handling
the case shall, within three (3) days from determination of absence
of jurisdiction or termination of the diversion proceedings as
provided below, forward the records of the case to the:
(1) Law enforcement officer or prosecutor when the child or the
childs parents/guardian does not consent to a diversion. Upon the
issuance of the corresponding document, certifying to the fact that
no agreement has been reached by the parties, the case shall be
filed according to the regular process.
(2) Prosecutor or the court when the case involves an offense with
an imposable penalty of more than six (6) years imprisonment.
Under Rule 44, diversion shall be conducted at the law enforcement
level when:

(1) After the conduct of diversion proceedings at the Katarungang


Pambarangay level, the child or the childs parents/guardian does
not consent to a diversion and the Punong Barangay forwards the
case of the child as provided under Rule 43.d (i);

(2) After the conduct of the initial investigation, the law


enforcement officer determines that the child is above 15 but below
18 years of age, acted with discernment and allegedly committed an
offense, that is not a victimless crime, with an imposable penalty of
not more than six (6) years of imprisonment, as provided under Rule
26(2)(a).
Diversion at the police investigation stage shall be conducted by the
law enforcement officer with the assistance of the LSWDO, as
provided in Section 23(a) of the Act.
The nature of diversion proceedings to be conducted by the law
enforcement officer and the participants therein shall be the same
as that under Rule 43.c.
Pursuant to Section 23 of the Act, the law enforcement officer
handling the case shall forward the records of the case to the
prosecutor or judge when the case involves an offense with an
imposable penalty of more than six (6) years imprisonment; or the
child or the childs parents/guardian does not consent to a
diversion. The case records shall be forwarded within three (3) days
from determination of absence of jurisdiction or termination of the
diversion proceedings as above stated.
The prosecutor or judge to whom the records are referred shall
conduct the preliminary investigation and determine whether or not
the child should remain under custody and correspondingly charged
in court.
Under Rule 4 diversion shall be conducted at the level of the
LSWDO when after the conduct of initial investigation, the law
enforcement officer determines that the child is above 15 but below
18 years of age, acted with discernment and allegedly committed a

victimless crime where the imposable penalty is not more than six
(6) years of imprisonment, as provided under Rule 26(2)(b).
The LSWDO shall meet with the child and his/her parents or
guardians for the development of the appropriate diversion and
rehabilitation program, in coordination with the BCPC.
Under Rule 46, where the imposable penalty for the crime
committed exceeds six (6) years imprisonment, diversion measures
may be resorted to only by the court and will proceed in accordance
with the SC Rules on Juveniles in Conflict with the Law.
Per Rule 47, the authority conducting the diversion proceedings
shall:
(1) Explain to the child and his/her family the objective of the
diversion proceedings, the value of diversion and the consequence
of not undergoing diversion.
(2) Ask the child of the circumstances of the offense, the motives or
purpose of the offense and the factors that led the child to commit
the offense.
(3) Ask the child of his/her personal circumstance including his/her
parents and family, his/her peers and educational status.
(4) Make the child in conflict with the law understand the
consequences of his/her actions and the corresponding
responsibilities.
(5) Ensure that the child understands and realizes his/her
accountability, be remorseful of his/her actions and takes on the
responsibility in repairing the harm done in lieu of filing a formal
case in the court.
The authority conducting the diversion proceedings shall also
determine if diversion is appropriate and desirable based on the

factors provided in the next Rule. Upon a finding that diversion is


not applicable or desirable, the authority handling the diversion
proceedings shall issue the corresponding document certifying to
such fact and shall file the case according to the regular process.
The authority conducting the diversion proceedings shall ensure
that the proceedings are child-friendly and sensitive to the needs,
welfare and the protection of the rights of the child in conflict with
the law. The authority shall use language that is simple and
understandable to the child in conflict with the law.
Diversion proceedings shall be conducted in a place where the
identities of the child and the parties concerned are kept
confidential. There should be enough privacy to avoid unnecessary
interruptions, distractions and/or participation from non-parties
that could humiliate or make the child uncomfortable.
The DSWD, in consultation with the LGUs particularly LCPCs, shall
formulate rules and guidelines that should be followed during the
diversion proceedings to protect the child from coercion,
intimidation, harm, abuse, or other actions detrimental to the child.
Such guidelines shall ensure that the child understands the
diversion proceedings in which he/she is involved.
Pending the conduct of the diversion proceedings, the custody of
the child shall be given to the parents, guardians, relatives or any
other responsible person in the community, taking into
consideration the best interest of the child in conflict with the law.
The consent of the child and of the parents or guardian of the child
shall be obtained in arriving at a contract of diversion. When the
consent of either is not obtained, the diversion proceedings shall be
terminated and the case of the child referred in accordance with
Rule 51.
The diversion proceedings shall be completed within forty-five (45)
days.
Diversion proceedings are deemed terminated when:

(1) A contract of diversion has been entered;


(2) The forty-five day period expires without any agreement
reached;
(3) The child or his/her parents or guardian do not consent to a
diversion;
(4) The authority conducting the diversion finds that diversion is not
applicable based on the factors enumerated in the immediately
preceding Rule.
Under Rule 48, a contract of diversion may be entered during the
diversion proceedings when the child voluntarily admits the
commission of the act as provided in Section 26 of the Act. The
voluntary admission of the child during the diversion proceedings
shall be only deemed as consent to undergo the diversion program
and shall not be considered a plea of guilt.
Any admission of the child shall not be used against the child in any
subsequent judicial, quasi-judicial or administrative proceedings.
Neither shall the admission be used against the child through denial
of privileges and opportunities, discrimination in treatment, or
imposition of any form of liability or punishment by reason of such
admission.
The contract of diversion containing the diversion program shall be
effective and binding if accepted by the child and the parents or
guardian of the child. The contract shall be in writing and signed by
the:
(1) Child;
(2) Parents or guardian of the child;

(3) Authority that conducted the diversion proceedings (the Punong


Barangay, the law enforcement officer or the prosecutor);
(4) Member of the BCPC assisting the Punong Barangay, in cases of
diversion proceedings at the Katarungang Pambarangay level; and
(5) LSWDO in cases of diversion proceedings by the law
enforcement officer or by the prosecutor.
The contract of diversion shall contain the individualized diversion
program and shall stipulate the rights, responsibilities or
accountabilities of the child, the parents or guardian and the
offended party, when applicable.
The contract of diversion considers as the responsibility or
accountability of the child to restore the harm done in view of the
offense committed. As such, the authority conducting the diversion
proceedings shall endeavor to obtain the agreement of the offended
party in the formulation of the individualized diversion program
contained in the contract of diversion by:
(1) Explaining to the offended party the benefits of forgiveness and
diversion, and the need to reform the child within the auspices of
the community instead of detention homes or rehabilitation centers
once the child expresses remorse and a willingness to ask for
forgiveness from the offended party; and
(2) Assuring the offended party that the LSWDO, together with the
local government and the community, will take care of the
responsibility of reforming and monitoring the child through various
diversion programs.
However, the acceptance of the offended party is not required for a
contract of diversion to be valid.
Per Rule 0, the community-based programs for diversion, as
distinguished from the programs for intervention under Rule 18,
shall respond to the special needs, problems, interests and concerns
of children in conflict with the law through the establishment of

community-based mechanisms and programs to prevent them from


offending and re-offending.
The community-based programs for diversion shall be developed by
the LGUs through the LSWDOs and the LCPCs, in coordination with
the schools, youth organizations and other concerned agencies.
These programs shall be consistent with the standards prescribed in
the Act and guidelines issued by the DSWD.
The Sangguniang Kabataan, as prescribed by Section 17 of the Act,
shall coordinate with the LCPC in the formulation and
implementation of diversion programs in the community.
LGUs shall be responsible making the assessment and evaluation of
the community-based programs for diversion in their annual report
on the comprehensive juvenile intervention programs.
Per Rule 51, the child together with the parents or guardians shall
present themselves to the competent authorities that imposed the
diversion program at least once a month for reporting and
evaluation of the effectiveness of the program.
Failure to comply with the terms and conditions of the contract of
diversion, as certified by the LSWDO, shall give the offended party
the option to institute the appropriate legal action.
In cases where the there is failure of diversion at the Barangay
level, the Punong Barangay that conducted the diversion
proceedings, upon a finding of failure to comply, may refer the case
of the child to the law enforcement officer or prosecutor as if there
is no consent to the diversion or that diversion is not appropriate
and desirable for the child as provided in Section 29 of the Act.
In cases where the offense committed is a victimless crime, the
LSWDO that conducted the diversion proceedings, upon a finding of
failure to comply, may refer the case of the child to the prosecutor
as if there is no consent to the diversion or that diversion is not
appropriate and desirable for the child as provided in Section 29 of
the Act.

Under Rule 52, the period of prescription of the offense shall be


suspended until the completion of the diversion proceedings but not
to exceed forty-five (45) days.
The period of prescription of the offense shall be suspended during
the effectivity of the diversion program, but not exceeding a period
of two (2) years.
Per Rule 53, a child in conflict with the law shall proceed to
appropriate preliminary investigation in the following cases:
(a) The offense committed by the child in conflict with the law has
an imposable penalty of more than six (6) years;
(b) Offended party opts to file an action with failure to comply with
the terms of diversion;
(c) No consent or agreement to a diversion; and
(d) When considering the assessment and recommendation of the
LSWDO, the prosecutor determines that diversion is not appropriate
for the child in conflict with the law.
Per Rule 57, upon determination of probable cause by the
prosecutor, the information against the child shall be filed before
the Family Court within forty-five (45) days from the start of the
preliminary investigation.
Rule 58 provides that If the child in conflict with the law is deprived
of liberty at the time the prosecutor assumes jurisdiction of the
case, the PAO has the duty to manifest to the court such fact with
the objective of obtaining an immediate order of release from the
Court.

Where the maximum penalty imposed by law for the offense with
which the child in conflict with the law is charged is imprisonment of
not more than twelve (12) years, regardless of the fine or fine alone
regardless of the amount, and before arraignment of the child in
conflict with the law, the court shall, pursuant to the SC Rules on
Juveniles in Conflict with the Law, determine whether or not
diversion is appropriate. (Rule 60).
Under Rule 61, children detained pending trial may be released on
bail or recognizance as provided for under Sections 34 and 35 of the
Act. In all other cases and whenever possible, detention pending
trial may be replaced by alternative measures, such as close
supervision, intensive care or placement with a family or in an
educational setting or home. Institutionalization or detention of the
child pending trial shall be used only as a measure of last resort and
for the shortest possible period of time.
Per Rule 63, where a child is detained, the court shall order the:
(a) release of the minor on recognizance to his parents and other
suitable persons;
(b) release of the child in conflict with the law on bail; or
(c) transfer of the minor to a youth detention home/youth
rehabilitation center.
The court shall not order the detention of a child in a jail pending
trial or hearing of his/her case.
Whenever detention is necessary, a child will always be detained in
youth detention homes established by local governments, pursuant
to Section 8 of the Family Courts Act, in the city or municipality
where the child resides.
In the absence of a youth detention home, the child in conflict with
the law may be committed to the care of the DSWD or a local
rehabilitation center recognized by the government in the province,
city or municipality within the jurisdiction of the court. The center or

agency concerned shall be responsible for the childs appearance in


court whenever required.
Per Rule 65, once the child who is under eighteen (18) years of age
at the time of the commission of the offense is found guilty of the
offense charged, the court shall determine and ascertain any civil
liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the
court shall place the child in conflict with the law under suspended
sentence, without need of application: Provided, however, That
suspension of sentence shall still be applied even if the juvenile is
already eighteen years (18) of age or more at the time of the
pronouncement of his/her guilt.
Upon the recommendation of the social worker who has custody of
the child, the court shall dismiss the case against the child whose
sentence has been suspended and against whom disposition
measures have been issued, and shall order the final discharge of
the child if it finds that the objective of the disposition measures
have been fulfilled. The discharge of the child in conflict with the
law shall not affect the civil liability resulting from the commission
of the offense, which shall be enforced in accordance with law. (Rule
67).
Per Rule 82, as provided in Section 5(h) of the Act, the public shall
be excluded during the proceedings, from initial contact to the final
disposition of the case, and all records from these proceedings shall
not be disclosed directly or indirectly to anyone by any of the
parties or the participants in the proceedings for any purpose
whatsoever, except:
(a) To determine if the child in conflict with the law may have his/her
sentence suspended;
(b) If the child in conflict with the law may be granted probation
under the probation law; or
(c) To enforce the civil liability imposed in the criminal action.

Under Rule 86, as required under Section 43 of the Act, all


authorities having contact with the child in conflict with the law or
having access to the records of the child in conflict with the law
shall undertake all measures to protect this confidentiality of
proceedings, including the:
(g) Use of a system of coding that provides aliases for children
taken into custody;
(h) Maintenance of a separate logbook and a separate police blotter
for children in conflict with the law;
(i) Exclusion of the public, particularly the media, from the area
where the child is being held in custody pursuant to Section 43 of
the Act;
(j) Non-disclosure of any detail or information to the public,
particularly the media, that shall lead to the identity of the child;
(k) Keeping the results of the medical examination confidential; and
(l) Marking of the records of the child and the report on the initial
investigation as confidential.
Failure to undertake measures to maintain confidentiality is
punishable under Sec. 62 of the Act.
A person who has been in conflict with the law as a child shall not
be held under any provision of law, to be guilty of perjury or of
concealment or misrepresentation by reason of his/her failure to
acknowledge the case or recite any fact related thereto in response
to any inquiry made to him/her for any purpose, pursuant to Section
43 of the Act. No person shall also be denied privileges and
opportunities, discriminated against, punished or in any manner
held liable or responsible for non-disclosure of any fact relating to
his/her conflict with the law as a child. (Rule 87).

Under Rule 88, as provided in Section 57 of the Act, status offenses


or offenses which discriminate only against a child, while an adult
does not suffer any penalty for committing similar acts, shall not be
punished. Any conduct not considered an offense or not penalized if
committed by an adult, including but not limited to curfew
violations, truancy, parental disobedience and the like, shall not be
considered an offense and shall not be punished if committed by a
child.
In the event a child is apprehended for or accused of committing
status offenses, law enforcement officers have the obligation to
immediately release the child and that the provisions of this Act on
prevention, diversion or rehabilitation shall not apply.
Per Rule 89, As provided in Section 58 of the Act, all children shall
be exempt from prosecution for the following offenses, being
inconsistent with the United Nations Convention of the Rights of the
Child:
(1) Vagrancy and prostitution under Article 202 of the Revised Penal
Code;
(2) Mendicancy under Presidential Decree No. 1563; and
(3) Sniffing of rugby under Presidential Decree No. 1619.
Upon initial contact with the child found to have committed any of
the offenses enumerated in Rule 89.a, the law enforcement officer
shall immediately turn over the custody of the child to the LSWDO.
The child shall undergo appropriate counseling and treatment
program to be determined by the LSWDO as provided in Section 58
of the Act.
Under Rule 90, as provided in Section 59 of the Act, the provisions
of the Revised Penal Code, as amended, Republic Act No. 9165,
otherwise known as the Comprehensive Dangerous Drugs Act of
2002, and other special laws notwithstanding, no death penalty
shall be imposed upon children in conflict with the law.