Month: September 2015

Legal Issues on International Child Abduction

Posted by duanolaw on with 2 Comments

What will happen in case a child abducted from the United States and wrongly retained in the Philippines by the Filipino spouse? Can the left behind parent seek relief to pursue recovery by reason of the child’s abduction to or being wrongfully retained in the Philippines?

Once in the Philippines, the issues regarding child custody can be resolved applying Philippine laws. The Hague Convention on the Civil Aspects of International Child Abduction cannot be invoked by the left behind American spouse. Why? Because the Philippines is  not a signatory to the said convention nor  there were any international or bilateral treaties in force between the Philippines and the United States concerning international parental child abduction. Thus, the treaty remedy by which the left behind parent can pursue to recover the child’s custody is not available. Moreover, not even a US court order awarding custody to the American spouse can bind the Philippine courts or be binding in Philippine territory. There is no existing treaty or convention on the enforcement of court orders on which the  United States is a party so  much so the said decree issued by the US courts can have a binding force here in the Philippines. Therefore, that US court decree will have no other force rather than its persuasive effect once invoked in the Philippine courts.

It is important to take note that  parental child abduction is not a crime under Philippine laws. In that case, any custody issues  should be resolved by invoking jurisdiction of the Philippine courts and applying its laws. It may be true that there is an extradition treaty between the United States and the Philippines, however, the left behind parent cannot resort to extradition as parental child abduction is not an extraditable offense. The extradition process is only applicable involving the abduction of adult, a fugitive and not the child. On the other hand, it is another thing if the parent who brought the child to the Philippines is a U.S. citizen and  whose passport was revoked due to an outstanding federal Unlawful Flight to avoid Prosecution (UFAP) warrant or indictment on charges of International Parental Kidnapping (IPKCA) in violation of 18 USC Section 1204. In that case, a deportation proceedings can be initiated based on lack of a valid travel document against the taking spouse.

Under Philippine law, a child below seven (7) years old cannot be separated from the mother except for compelling reasons. This is known as the maternal preference rule. In assailing custody of the child from the taking parent (Filipino spouse) the left behind parent can initiate a petition for child custody with habeas corpus. However, the left behind parent will have to engage a Philippine attorney to initiate this  proceedings and said left behind parent should actively prosecute the petition in the Philippine courts. Or a petition for recognition and enforcement of a foreign judgment can also be initiated in case the US courts had issued a custody judgment joined with the petition for child custody and habeas corpus.  During the pendency of the main case, the left behind parent, petitioner before the Philippine courts, can move for an order regarding temporary custody or  ask for a court order to exercise his/her visitation rights. Even if the left behind parent was given the temporary custody he/she cannot bring the child out of the country pending the resolution of the main issue involving custody. The other spouse can resort to asking the court to issue a hold departure order (HDO) for the child to prevent the left behind parent (petitioner) from taking the child out of the country.

Now the Law Allows Administrative Corrections of Errors on the Day and Month of Birth or Sex of a Person

Posted by duanolaw on with 1 Comment

You can now do away with the technical way of correcting errors in your certificates of live birth containing a patent clerical or typographical errors or mistake involving entries on the day and month in the date of birth or sex.

President Aquino signed into law Republic Act No. 10172 known as AN ACT FURTHER AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO CORRECT CLERICAL OR TYPOGRAPHICAL ERRORS IN THE DAY AND MONTH IN THE DATE OF BIRTH OR SEX OF A PERSON APPEARING IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER, AMENDING FOR THIS PURPOSE REPUBLIC ACT NUMBERED NINETY FORTY-EIGHT.

Before this Republic Act No, 10172, only the change of first name and correction of minor clerical errors were allowed. However,  Republic Act 10172 amended Republic Act No. 9048 which includes not only the clerical or typographical errors and change of first name or nickname but also the day and month in the date of birth or sex of a person where it is patently clear that there was a clerical or typographical error or mistake in the entry, which can be corrected or changed by the concerned city or municipal civil registrar or consul general.

It is important to take note that the clerical or typographical error referred in the amendment is the mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth, mistake in the entry of day and month in the date of birth or the sex of the person or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records and does not include  corrections involving  the change of nationality, age, or status of the person (petitioner) concerned. On the other hand, for substantial errors or those which are not mere clerical or typographical errors there is still a need for an adversarial proceedings by filing a petition to effect the changes.

If it is a cancellation or correction of entries involving (a) births (except misspelled place of birth, mistake in the entry of day and month in the date of birth or the sex of the person or the like); (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization (k) election, loss or recovery of citizenship (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name this can be done by filing a petition for the cancellation or correction of entries of the civil registry records under Rule 108 of the Rules of Court. The cancellation or correction can be allowed upon good and valid grounds.

If you want to avail the amendment introduced by Republic Act No. 10172 just visit the local civil registrar where your birth was recorded.

Key Points To Know About Psychological Incapacity as a Ground to Declare a Marriage Void

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The Basic Law

The applicable provision can be found in Article 36 of the Family Code, providing as follows:

Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.

Key Phrases on Psychological Incapacity

  1.       A party contracted a marriage
  2.      At the time of the celebration of the marriage
  3.      Was Psychologically Incapacitated
  4.      To comply with the essential marital obligations of marriage
  5.      Such incapacity becomes manifest only after its solemnization.

What does it include?

As interpreted by Jurisprudence

The phrase “psychological incapacity” is not meant to comprehend all possible cases of psychoses. It refers to no less than a mental (not physical) incapacity that causes a party to be truly noncognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity; and render help and support. The intendment of the law has been to confine it to the most serious of cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. (Santos versus Court of Appeals, G. R. No. 112019, January 4, 1995, 240 SCRA 20)

Accepted Types of Personality Disorders

In Te versus Te, G.R. No. 161793, February 13,2009, the Honorable Supreme Court  recognized the following types:

Types of Disorders   According to the American Psychiatric Association’sDiagnostic and Statistical Manual of Mental Disorders (3d ed., rev., 1987), or DSM-III-R, personality disorders are categorized into three major clusters:

Cluster A:  Paranoid, schizoid and schizotypal personality disorders. Individuals who have these disorders often appear to have odd or eccentric habits and traits.

Cluster B:  Antisocial, borderline, histrionic and narcissistic personality disorders.  Individuals who have these disorders often appear overly emotional, erratic and dramatic.

Cluster C:  Avoidant, dependent, obsessive-compulsive and passive-aggressive personality disorders.  Individuals who have these disorders often appear anxious or fearful.

The DSM-III-R also lists another category, “personality disorder not otherwise specified,” that can be used for other specific personality disorders or for mixed conditions that do not qualify as any of the specific personality disorders.

Individuals with diagnosable personality disorders usually have long-term concerns, and thus therapy may be long-term.

What are the characteristics to be proved in psychological incapacity?

Existing at “the time of the celebration” of the marriage (known as juridical antecedence).

The evidence must show that the illness was existing when the parties exchanged their “I do’s.” The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto.

Medically or clinically permanent or incurable.

Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job.

Gravity

Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, “mild characterological peculiarities, mood changes, occasional emotional outbursts” cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage.On the other hand, root cause must be identified as a psychological illness

Those that do not constitute psychological incapacity.

In Ricardo B. Toring v. Teresita M. Toring, G.R. No. 165321, August 3, 2010, 626 SCRA 389, 408,  the Honorable Supreme Court emphasized that irreconcilable differences, sexual infidelity or perversion, emotional immaturity and irresponsibility, and the like do not by themselves warrant a finding of psychological incapacity, as these may only be due to a person’s difficulty, refusal or neglect to undertake the obligations of marriage that is not rooted in some psychological illness that Article 36 of the Family Code addresses.

Furthermore, habitual alcoholism, sexual infidelity or perversion, and abandonment do not by themselves constitute grounds for declaring a marriage void based on psychological incapacity (Hernandez versus Hernandez, G.R. No. 126010. December 8,199)

According to the Supreme Court, “Mixed personality disorder, the “leaving-the-house” attitude whenever he and Amy quarreled, the violent tendencies during epileptic attacks, the sexual infidelity, the abandonment and lack of support, and his preference to spend more time with his band mates than his family, are not rooted on some debilitating psychological condition but a mere refusal or unwillingness to assume the essential obligations of marriage” (G.R. No. 162368. July 17, 2006).

While habitual alcoholism, sexual infidelity or perversion, and abandonment irreconcilable differences, sexual infidelity or perversion, emotional immaturity and irresponsibility do not by themselves warrant a finding of psychological incapacity. However, if they are manifestations of a disordered personality which make the party completely unable to discharge the essential obligations of the marital state then it may constitute psychological incapacity.

Unless you can comply with the foregoing key points your efforts to declare your marriage null and void will fall short.