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.

The best interest of the child is the determinative standard. The Rule on Child Custody set by the Supreme Court provides that:

In awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare.

The best interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development.

It also means the least detrimental available alternative for safeguarding the growth and development of the minor.

The Rule also directs trial courts to consider other factors. These are:

(a) Any extrajudicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contact with the non custodial parent on a regular basis, except when there is an existing threat or danger of physical, mental, sexual or emotional violence which endangers the safety and best interests of the minor;

(b) The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent;

(c) The health, safety and welfare of the minor;

(d) Any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minor, including anyone courting the parent;

(e) The nature and frequency of contact with both parents;

(f) Habitual use of alcohol, dangerous drugs or regulated substances;

(g) Marital misconduct;

(h) The most suitable physical, emotional, spiritual, psychological and educational environment for the holistic development and growth of the minor; and

(i) The preference of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit.

The laws further provide for additional considerations in certain cases.

In general, a married father and mother shall jointly exercise parental authority over the persons of their common children.

However, the Family Code puts illegitimate children (when the parents are unmarried) under the sole parental authority of their mother.

Mothers are entitled to the sole parental authority of an illegitimate child notwithstanding the father’s recognition of the child. In the exercise of that authority, mothers are entitled to keep their illegitimate children in their company.

The Court will not deprive them of custody unless there is an imperative cause showing the mother’s unfitness to exercise due authority and care.

In addition, Article 213 of the Family Code provides for the so-called tender-age presumption.

This provides that “no child under seven (7) years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.”

The rationale behind the tender-age rule was explained by the Code Commission thus:

The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age.

Having said all that, the best interests of the child remain paramount.

Thus, even a child of tender years may be granted to the custody of someone other than the mother if this serves the child’s best interests.[1]

[1] Masbate vs. Relucio, G.R. No. 235498, July 30, 2018.

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.[1]

[1] Pablo-Gualberto v. Gualberto V, 500 Phil. 226, 250 (2005).

The law on kidnapping is found in the Revised Penal Code of the Philippines.[1]

It specifically excludes parents from prosecution for abducting their own child:

Art. 267. Kidnapping and serious illegal detention. – Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than three days.

 2. If it shall have been committed simulating public authority.

   3. If any serious physical injuries shall have been inflicted upon the person kidnapped
or detained; or if threats to kill him shall have been made.

     4. If the person kidnapped or detained shall be a minor, except when the accused us any of the
parents, female or a public officer.

Consequently, it is sometimes said that parental child abduction is not a crime in the Philippines.

However, subsequent provisions of the Revised Penal Code do provide for a parent’s criminal liability in specific circumstances:

Article 270. Kidnapping and failure to return a minor. – The penalty of reclusion perpetua shall be imposed upon any person who, being entrusted with the custody of a minor person, shall deliberately fail to restore the latter to his parents or guardians.

Article 271. Inducing a minor to abandon his home. – The penalty of prision correccional and a fine not exceeding seven hundred pesos shall be imposed upon anyone who shall induce a minor to abandon the home of his parent or guardians or the persons entrusted with his custody.

If the person committing any of the crimes covered by the two preceding articles shall be the father or the mother of the minor, the penalty shall be arresto mayor or a fine not exceeding three hundred pesos, or both.

These provisions have been employed to prosecute a parent in a specific case where the father and the mother were living separately and the custody of the child had been given to one of them by the court.

The parent who took the minor from the parent who had been granted custody by the court was charged with the crime of kidnapping and failure to return a minor under Article 270.

(However, the accused parent apparently fled the court’s jurisdiction and took the child overseas.)

What is more, parent’s penalty of arresto mayor for violation of Article 270 or 271 is light compared to the penalty of reclusion perpetua to death for kidnapping under Article 267.

The former has a maximum of six months’ imprisonment – and might indeed entail no jail time at all – while the latter ranges from twenty years imprisonment to death.

[1] Article 267 of the Revised Penal Code, as amended by Republic Act No. 7659.

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.[1]

Neither is any travel clearance needed if the child is illegitimate and traveling abroad with the mother.[2]

However, a travel clearance is required if the illegitimate child is traveling abroad with the biological father.[3]

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.”[4]

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.

[1] Administrative Order No. 2017-12, Par. 4(a)(i), VI of AO 2017-12

[2] VI. General Policies, par. 4(a)(ii) of AO 2017-12

[3] V. Coverage par. 1(d)

[4] VI. General Policies, par. 12 of AO 2017-12

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.[1]

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.

[1] VII. Documentary Requirements, pars. 3(c) and 4(c) of AO No. 2017-12

With only one parent

No travel clearance, and thus no additional documentary requirement, is required for a legitimate child going abroad with either parent.

However, travel clearance is required if an illegitimate child is going abroad with his or her biological father.

Travel clearance must be applied for with the Department of Social Welfare and Development (DSWD), its field offices, or its attached agency, the Inter-Country Adoption Board (ICAB).

The documentary requirements for a travel clearance for minors who are travelling for the first time are:

        1. Duly accomplished DSWD Travel Clearance application form

        2. A photocopy of the birth certificate of minor in security paper (SECPA)

        3. Notarized (at the place of residence) affidavit or written consent of both parents or the solo
            parent or the legal guardian, attached with valid identification card with specimen signature

        4. Photocopy of the marriage solo parent identification card from the Local and Social Welfare
            Development Office (LSWDO) or a certification of being a solo parent (assessment report of
            the  LSWDO as attachment) in case of a solo parent, a court decree of separation,
            annulment  or divorce, in case of illegitimate minor, a certificate of no marriage (CENOMAR)
            from the Philippine Statistics Authority (PSA), if applicable

        5. Two (2) original colored (white, red or blue background) passport size photos of minor taken
             within the last six (6) months. No scanned pictures will be accepted

        6. Photocopy of the passport of the travelling companion.[1]

The documentary requirements for those who will be travelling subsequently with a person other than the parents or legal guardian are:

        1. Duly accomplished DSWD Travel Clearance application form

        2. Original copy of the Travel Clearance previously issued by DSWD Field Office

        3. Notarized affidavit of consent from biological parent/s or guardian authorizing a particular
            person to accompany the child in his/her travel abroad, with a copy of the valid
            identification card with specimen signature

         4. Two (2) original colored (white, red or blue background) passport size photos of minor
              taken within the last six (6) months. No scanned pictures will be accepted

         5. Photocopy of the passport of the travelling companion.[2]

Alone

If the child will be traveling alone for the first time, the documentary requirements are:

      1. Duly accomplished DSWD Travel Clearance application form

      2. Assessment Report from the LSWDO or SWOII of the Social Welfare and Development
         (SWAD) Team when necessary

      3. Birth Certificate on SECPA

     4. A photocopy of the marriage certificate on a security paper of the minor’s parents or the Court
        Decision on Legal Guardianship of the minor, or Tallaq or Fasakh certification from the Shariah
        Court or any Muslim barangay or religious leader

     5. In the case of illegitimate minor, a CENOMAR of the minor’s mother from the PSA on SECPA

     6. Notarized affidavit or written consent of both parents, the solo parent and the legal guardian,
         whichever is applicable permitting the minor to travel to a foreign country.

         In the absence of both parents or an appointed legal guardian, the relative’s consent in the
         order of preference provided under Article 216 of the Family Code of the Philippines shall
         prevail and in which case, an Assessment  Report by the Social Worker of the LSWDO
         should also be submitted with a copy of the parent/s or legal guardian’s valid identification
         card with specimen signature, and visa of parents if working abroad (for legitimate children,
         both grandparents who have the custody of the minor).

         For an illegitimate or non-marital child, consent of maternal grandparents.

     7. Two (2) original colored (white, red or blue background) passport size photos of minor taken
          within the last six (6) months. No scanned pictures will be accepted

     8. Affidavit of Support and certified copy of any evidence to show financial capability of sponsor
         (parents/legal guardian or other person/agency shouldering the expenses) such as:

                – Certificate of employment

                – Latest income tax return

                – Bank statement, etc.

     9. In case either or both parents of the minor are deceased, certified true copy of the Death
         Certificate/s of each of the parents on SECPA

    10. Unaccompanied Minor Certificate from the Airlines

    11. Waiver from the parents releasing DSWD from any liability/responsibility in case of
          untoward incident during  the travel of the child[3]

For a succeeding travel of unaccompanied or traveling minor to a foreign country the documents required are:

      1. Duly accomplished DSWD Travel Clearance application form

      2. Notarized affidavit or written consent of both parents, the solo parent and the legal guardian,
          whichever is applicable with a copy of the valid identification card with specimen signature

       3. Original copy of the Travel Clearance previously issued

      4. Two (2) original colored (white, red or blue background) passport size photos of minor taken
          within the last six (6) months. No scanned pictures will be accepted

       5. Unaccompanied Minor Certificate from the Airlines

       6. Waiver from the parents releasing DSWD from any liability/responsibility in case of untoward
           incident during the travel of the child[4]

[1] VII. Documentary Requirements, par. 3

[2] VII. Documentary Requirements, par. 4

[3] , VII. Documentary Requirements, par. 1 provides

[4] , VII. Documentary Requirements, par. 2

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.

A child custody case in the Philippines may cite and seek recognition of a foreign court judgment over the same child, but such recognition is subject to public policy considerations under Philippine law.

The primary standard remains the best interests of the child as determined by the Philippine court.

A relatively new development is the Philippine accession to the Hague Convention on the Civil Aspects of International Child Abduction.

The Philippines finally acceded to this treaty in 2016.

This provides a further mechanism for securing a child’s return to the parent or person with legal custody of the child.

The objectives of the Hague Convention are –

a) to secure the prompt return of children wrongfully removed to or retained in any Contracting
State; and

b) to ensure that rights of custody and of access under the law of one Contracting State are
effectively respected in the other Contracting States.

Under the Convention, wrongful removal or retention of a child are defined as:

The removal or the retention of a child is to be considered wrongful where –

a) it is in breach of rights of custody attributed to a person, an institution or any other body,
either jointly or alone, under the law of the State in which the child was habitually resident
immediately before the removal or retention; and

 b) at the time of removal or retention those rights were actually exercised, either jointly or
alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

The Hague Convention on the Civil Aspects of International Child Abduction currently has 101 signatory countries.

However, despite its accession to the Convention, the Philippines is not yet treaty partners with most of the signatory countries already within the Convention.

(If a country signed the treaty before the Philippines then that country must individually approve the Philippine accession for the Convention to come into effect between it and the Philippines.)

Until the Philippines establishes individual treaty relationships with the prior signatories to the Convention, then parents — whose children are abducted from those countries to the Philippines or whose children are wrongfully retained in the Philippines — cannot invoke the Convention to enforce their children’s return.

A running tally of the countries with whom the treaty is in force with the Philippines can be found here.

As of this writing, the only countries with whom the treaty is in force with the Philippines are: Japan, Peru, Ukraine, Republic of Moldova, Chile, New Zealand, Andorra, Brazil, Argentina, Venezuela, Uruguay, Georgia, and Mexico.

Atty. Francesco Britanico