With over 10 million Filipinos abroad, cross-border custody disputes are rising. Parental kidnapping laws are limited, but an international treaty helps fill the gap.

With over 2 million overseas workers and over 10 million people of Filipino descent living abroad, the Philippines has a considerable diaspora population spanning over 100 countries.

Consequently, many children are born whose custody becomes contested across different countries.

The law on parental kidnapping from or into the Philippines is thus very relevant to many families.

Philippine statutes have only inadequate proscriptions against parental kidnapping, but the Philippines is a signatory to an international treaty meant to address the parental kidnapping of children.

Under Philippine law, parents are generally exempt from kidnapping charges—but they can still face lesser charges if custody rights are violated.

Philippine domestic law on kidnapping generally excludes parents from prosecution for abducting their own child. It is sometimes said that parents cannot kidnap their own children under Philippine law.

The general law against kidnapping is found in Article 267 of the Revised Penal Code. Article 267 exempts from its coverage a private individual who kidnaps a minor “when the accused is any of the parents.” Because of this, some say that parental kidnapping is not a crime in the Philippines.

However, that is not quite accurate because lesser kidnapping charges can be filed against a parent under other provisions of the RPC:

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 were used to prosecute a parent in a case where the father and the mother were living separately and a court had given custody of the child to the father. The mother and her family took the minor child and was charged with kidnapping and failure to return a minor under Article 270.

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

But note that a parent’s penalty under Articles 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 may entail no jail time at all – while the latter ranges from twenty years imprisonment to death.

In view of this, it is well and timely that the Philippines is now a signatory to an international treaty on parental child abduction. The treaty does not impose a criminal penalty on an abducting parent who took the child from another country, but it does give a hope of redress to a left-behind parent.

Inducing a child to abandon their home is a crime in the Philippines. Even parents may face penalties if they unlawfully influence their child to leave lawful custody.

The applicable law is the Hague Convention on the Civil Aspects of International Child Abduction of 1980 (HCAC) an international treaty ratified by the Philippines. The HCAC aims to protect children from the harmful effects of their wrongful removal or retention through a system of cooperation between countries and a rapid procedure for the return of the child to that child’s State of habitual residence.

When did this law come into effect?

The Philippines became a signatory to the HCAC in 2016.

The mechanisms by which the treaty is implemented in the Philippines are the rules promulgated by the Department of Justice and by the Supreme Court in 2022. These are Department of Justice Order No. 010 and the Supreme Court’s Rule on International Child Abduction Cases[1]on the conduct of court cases that seek to implement the rule.

[1] A.M. No. 22-09-15-SC)

With which countries does this Rule apply?

The treaty has come into effect between the Philippines and the following countries as of the time of this writing:

Andorra, Argentina, Austria, Belgium, Brazil, Bulgaria, Chile, Colombia, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, Mexico, Monaco, Netherlands, New Zealand, Peru, Poland, Portugal, Republic of Moldova, Russian Federation, Serbia, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Ukraine, Uruguay, Venezuela (Bolivarian Republic of)

DOJ helps return abducted children under the Hague Treaty. Parents can file in court if peaceful resolution fails.

The Department of Justice is the Philippine Central Authority tasked to implement this country’s commitments under the treaty. The DOJ is tasked to cooperate with the Central Authorities of other HCAC Contracting States to secure the prompt return of children covered by the HCAC and to achieve the other objectives of the treaty.

Included among the DOJ’s functions as the Philippine Central Authority are the mandates to locate the child’s whereabouts, prevent harm to the child, provide information to others, and coordinate and exchange information with the Central Authorities of other countries.

However, the Left Behind Parent is not limited to awaiting assistance from the DOJ. He or she may apply directly with the Philippine courts, whether under the HCAC or not, for the return of the child.

What is the procedure in Court?

A court case is necessary to enforce a return of the child if efforts at conciliation fail.

The procedure is governed by the Supreme Court’s Rule on International Child Abduction Cases.

The “left behind parent” can file a Petition for the child’s return in cases of international parental abduction or kidnapping. The Petition should be filed with the Family Court of the city or province where the child may be found.

The Petition must be filed within one year of the child’s wrongful removal or retention in the Philippines.

The Family Court will order the child returned to the country of habitual residence if it finds the petition to have merit. The Court may nonetheless allow visitorial rights for the other parent in keeping with the best interests of the child.

Damages may also be found against the taking parent.

A mother takes her child abroad without consent, triggering an international custody battle under the Hague Convention on Child Abduction.

Under the HCAC and its implementing rules in the Philippines, it has to be proved that:

1. The child was habitually residing in another country in which the HCAC is in effect with the Philippines;
2. The removal or retention of the child constituted a breach of custody rights attributed by the law of that country; and,
3. The applicant was actually exercising those custody rights at the time of the wrongful removal or retention.

The Rule on International Child Abduction^[1] requires the following elements to be proven:

1. Country of Habitual Residence which refers to a country or state party to the HCAC where a child has been physically present for an amount of time sufficient for the child to attain a degree of integration in a social and family environment, providing feelings of security in familiar surroundings or environment before his/her wrongful removal or retention.
2. Wrongful Removal or Retention of a Child

Wrongful Removal of a Child refers to act of taking a child out of his or her country or state of habitual residence in the breach of rights of custody attributed to a person, an institution or any other body under the law of the country of the child’s habitual residence, which rights were actually exercised, either jointly or alone, at the time of removal, or would have been so exercised had the child not been wrongfully removed. 

Wrongful Retention of a Child refers to the retention or concealment of a child in another country in breach of the rights of custody or access attributed to a person, an institution, or any other body under the law of the country of the child’s habitual residence, which rights were actually exercised, either jointly or alone, at the time of such retention or concealment, or would have been so exercised had the child not been wrongfully retained or concealed.

1. Petitioner has custody rights over the Child. The individual shall establish and demonstrate their lawful custody rights regarding the Child. ^[2]
2. Breach of Petitioner’s custody rights. Petitioner shall prove unlawful deprivation of his custody rights. ^[3]
3. In exceptional circumstances, the Best Interest of the Child. ^[4]

[1] A.M. No. 22-09-15- SC

[2] Section 31; A.M. No. 22-09-15- SC

[3] Section 6; A.M. No. 22-09-15- SC

[4] Section 2; A.M. No. 22-09-15- SC

When the evidence is strong—birth certs, travel records, custody orders—a guilty verdict follows in parental abduction.

To prove these elements different pieces of evidence shall be attached to the Petition. ^[1] To summarize:

Documentary Evidence. Birth Certificate, to establish the child’s identity and parentage. Passport, to show the child’s travel history. Custody Agreements, if any, to show the parties’ agreements on custody. Court Orders, if any, to establish existing court orders related to custody of the child.

Witness testimony. Through Judicial Affidavits the left behind parent’s testimony or statements from individuals about the circumstances of the child’s removal or retention.

Other Evidence. 

Photographs and videos. Visual evidence of the child’s life before and after the abduction.

Emails, messages, and correspondence. Communications between the parties that may be relevant to the case.

Travel records. Records of travel, such as flight itineraries.

Bank statements and financial records. Records that may indicate the abducting parent’s financial situation and ability to support the child.

Police reports and investigations. Reports and findings from law enforcement agencies that may have investigated the abduction.

Medical and psychological records. Records that may be relevant to the child’s health and well-being.

School records. Records that may indicate the child’s educational history and circumstances.

Additional Requirements

Certification issued by the Department of Foreign Affairs. Proof that the HCAC is in force between the Philippines and the country of the child’s habitual residence, such as Certification issued by the Department of Foreign Affairs of the Philippines or the official list of the contracting state parties in the Child Abduction Section of the Hague Conference on Private International Law official website.

Translation of Documents if necessary.

Authentication of Documents. Public documents originating from foreign countries should be duly authenticated pursuant to the pertinent provisions of the Rules of Court.

[1] Section 11; A.M. No. 22-09-15- SC

Exceptions

The Convention provides for certain instances where the requested Country has discretion not to order the return of the child taken from country of habitual residence

These include –

Where it is demonstrated that the child is now settled in the new environment

If the person or institution having care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented or subsequently acquiesced to the removal or retention,

Where there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation

The authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child’s views

Return may also be refused if it would go against by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms

Parental Kidnapping a picture of a lawyer on his desk with red text case dismissed 9

The Family Court can dismiss the petition filed on any of the following

grounds:

1. Lack of jurisdiction over the subject matter;
2. When the child has attained the age of sixteen (16) years at the time of the filing of the petition;
3. When the child is not within the Philippines at the time of the filing of the petition;
4. Another petition for the return of the child is pending or has been filed in another Family Court or the Philippine Central Authority;
5. A final judgment ordering the return of the child to the country of habitual residence has already been rendered by another Family Court; and
6. failure to contain a certification against forum shopping

Wrongful removal isn’t in the child’s best interest. Philippine courts apply HCAC rules to ensure prompt return and restore pre-abduction custody status.

Child custody cases in the Philippines are often determined by the principle of the best interests of the child as articulated in jurisprudence.

However, the HCAC makes explicit that the harmful effects of wrongful removal or retention are not in the interests of the child. Thus, a court’s reading of a child’s best interest should reflect the Philippine ratification of the HCAC.

Thus, the Supreme Court’s Rule implementing this treaty on international parental kidnapping provides as a general rule that such wrongful removal or retention is not in the best interests of the child:

“Section 2. Objective. – The objective of this Rule is to protect children from the harmful effects of wrongful removal or retention across international boundaries by providing an expeditious procedure designed to bring about the prompt return of such children to the state or country of their habitual residence, based on the presumption that, save in exceptional circumstances, such wrongful removal or retention is not in the best interests of the child.

The prompt return of the child is designed to restore the status of the parties which existed before such wrongful removal or retention. This Rule also aims to ensure that rights of custody and of access under the laws of the state or country of the child’s habitual residence are effectively respected.” 

In Philippine family courts, the child’s best interests guide all rulings, ensuring their welfare and relationships are protected—even under global treaties.

The treaty should be read as providing a legal standard for what is in the “best interests of the child”. The treaty itself provides for measures explicitly guided by the principle.

Article 16 of the Convention prohibits a court from making substantive custody decisions during the proceedings. Therefore, only provisional measures in the best interests of the child will be taken by the judge.

Article 16 of the Hague Convention states that courts cannot consider custody or access issues until a return application has been decided.

This applies regardless of where the return application is made.

The Supreme Court Rule implementing the treaty in the Philippines, A.M. No. 22-09-15-SC,^[1] itself highlights this. the best interests of the Child. In fact, Section 38 of the Rule on International Child Abduction provides for appointment of a guardian ad litem if warranted, Section 21 authorizes the Family Court if necessary,  may order the court social worker or a government accredited social worker to submit a home study and social background report of the child and the respondent at least three calendar days before the schedule preliminary conference. Section 31, expressly provides that the Family Court shall give paramount consideration to the interests of the child.

Can a case for International Child Abduction be filed in the child’s home country or must it be filed in the country where the child was taken or unlawfully retained?

Either. Under the Convention, a case for international child abduction can be filed in the child’s home country (own Central Authority) or in the country where the child was taken or unlawfully retained.   

[1] (Rule on International Child Abduction Cases, A.M. No. 22-09-15-SC, [October 18, 2022])

While the Rule on International Child Abduction is silent on a child turning 16 during the case, DOJ Circular No. 010 allows dismissal if this occurs mid-pendency.

The Rule on International Child Abduction is silent on what happens if a child turns 16 while the case is pending. The Rule^[1] only provides as a ground for dismissal if the child has attained the age of sixteen (16) years at the time of the filing the Petition.

However, the Department of Justice in its Circular No. 010 provided the following as a ground for dismissal:

“Section 14. Grounds for the Refusal of the HCAC Application:

1. The Child is already 16 years of age at the time of the filing of the application or has reached the age of 16 during the pendency of the application;”

Can a party file a Motion for Reconsideration under the Rule on International Child Abduction? 

No. A party cannot file a Motion for Reconsideration under the Rule on International Child Abduction. A Motion for Reconsideration of a judgment on the merits or for reopening of proceedings is a prohibited motion. 

Can the ruling of the trial court be elevated to the Court of Appeals?

The ruling of the trial court cannot be questioned through a regular appeal. It may be elevated to the Court of Appeals only through a special civil action for certiorari under Rule 65 of the Rules of Court.^[1] 

For legal counsel on a case of international parental kidnapping, you may reach us at contact@lawyerphilippines.org

[1] Section 34, Rule on International Child Abduction 

[1] Section 17, Rule on International Child Abduction