family law

Child Custody and Child Travel To and From the Philippines

Q: What are the legal remedies of a parent who is refused custody or visitation rights by another parent?

It is often best that the parents come to an agreement about these issues, but legal action can be resorted to if that is not possible. The deprived parent may file a court case for the custody of the child. The petition for custody should be filed with the appropriate Family Court in the Philippines. The parent may also file a petition for writ of habeas corpus to require the respondent to produce the child before the court. This petition may be filed with the appropriate Family Court or even directly with the Court of Appeals or the Supreme Court. During trial, the court may issue a provisional order awarding temporary custody of the child to an appropriate, responsible person.

Q: What are “compelling reasons” to remove a child under seven years from the custody of a mother?

The Supreme Court has ruled that the exception allowed by the tender-age presumption has to be for “compelling reasons” for the good of the child. Those cases must indeed be rare, if the mother’s heart is not to be unduly hurt. The following instances may constitute “compelling reasons” to wrest away custody from a mother over her child although under seven (7) years of age: 1. neglect; 2. abandonment; 3. unemployment; 4. immorality; 5. habitual drunkenness; 6. drug addiction; 7. maltreatment of the child; 8. insanity and 9. affliction with a communicable disease.

Q: Can a child travel abroad with either parent?

A Filipino minor traveling abroad without a parent with him/her must have a travel clearance in order to do so. A travel clearance is a document issued by the Department of Social Welfare and Development to a Filipino child (below 18 years of age) traveling abroad alone or with someone other than his/her parents. A minor may travel abroad even without a travel clearance if accompanied by the appropriate parent. Who the appropriate parent is depends on whether the child is legitimate (i.e. the parents were married) or illegitimate. No travel clearance is required when a legitimate child is going abroad with either parent. Neither is any travel clearance needed if the child is illegitimate and traveling abroad with the mother. However, a travel clearance is required if the illegitimate child is traveling abroad with the biological father. A pending court case for the custody of any child will curtail the child’s freedom to travel. “a minor who is the subject of ongoing custody battle between parents will not be issued a travel clearance unless a Court Order is issued to allow the child to travel abroad with either one of his/her parents or authorized guardian. The family shall be responsible to notify the Bureau of Immigration to include the name of the child/ren in the watchlist of minors travelling abroad. It is therefore the Bureau of Immigration’s responsibility to ensure that no child under the watchlist order leaves the country.” Thus, a court order is required if there is a custody issue before a child can have a travel clearance and go abroad with either parent.

Q: Is the consent of the other parent necessary for a child to travel abroad with a parent?

In general, no travel clearance from the DSWD is required if the parents of the child are married to each other. This means that the requisites for a travel clearance — a notarized affidavit or written consent of both parents – will not be required before such a child can travel abroad with one parent. However, if the minor is an illegitimate child traveling abroad with the biological father, a notarized affidavit or written consent is required from the solo parent, in this case, the mother, since this is one of the requisites for the issuance of a travel clearance by the DSWD. Court orders can be required, particularly if there is custodial issue over the minor child between the child’s mother and father as discussed in the section.

Q: When can a hold departure order be issued over a child?

The general rule is that a minor child who is the subject of an ongoing child custody petition shall not be brought out of the country without prior order from the court. The court, at its own initiative or upon sworn request, may issue a Hold Departure Order addressed to the Bureau of Immigration and Deportation. This HDO directs the Bureau not to allow the departure of the child from the Philippines without the permission of the court. The Family Court issuing the HDO shall furnish the Department of Foreign Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy of the HDO within twenty-four hours from the time of its issuance and through the fastest available means of transmittal. The court may recall the order subject to such terms and conditions as may be necessary for the best interests of the child. The rule on child custody also provides that the family shall be responsible to notify the Bureau of Immigration to include the name of the child/ren in the watchlist of minors travelling abroad. It is therefore the Bureau of Immigration’s responsibility to ensure that no child under the watchlist order leaves the country.

Child Custody and Child Travel To and From the Philippines

Atty. Francesco Britanico

July 7, 2024

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Table of Contents

What are the legal remedies of a parent who is refused custody or visitation rights by another parent?

What standards will the court apply in deciding custody?

What are “compelling reasons” to remove a child under seven years from the custody of a mother?

Can a parent be held guilty of parental kidnapping under Philippine law?

Can a child travel abroad with either parent?

Is the consent of the other parent necessary for a child to travel abroad with a parent?

What are the documentary requirements for travel clearance?

When can a hold departure order be issued over a child?

Can a foreign court’s order granting custody to one parent be enforced in the Philippines?

Child Custody and Child Travel To and From the Philippines - Lawyers in the Philippines

Child Custody and Child Travel To and From the Philippines