The instance/s that the mother of a child below seven (7) years old can be deprived of the child’s custody.
Custody of a child below seven (7) years of age belongs to the mother. This is known as the maternal preference rule. However, it admits of certain exceptions. Article 214 of the Family Code says for “compelling reasons”, such custody may be denied and granted to another party. The doctrinal rule enunciated by the Supreme Court in the case of Tonog vs. Court of Appeals (G.R. No. 122906, February 7, 2002) enumerated some of these compelling reasons as “neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable illness.” In the said instances, a mother can therefore be deprived of the child’s custody.
Custodial right to an illegitimate child
Parental authority of an illegitimate child belongs to the mother and this includes her right to have the custody of her illegitimate child. She cannot therefore be deprived of the child’s custody unless she is not fit to exercise such authority and care. However, the father has a right of access (known as visitation rights) to the child. This is a constitutionally protected inherent and natural right of a father over his child. But this visitation rights can be denied if it can be proven that the father is a negative influence (like immorality and drunkenness) to his children. The best interest and welfare of the children is the consideration.
Remedy in case of deprivation of the child’s/children’s custody
File a petition for habeas corpus and child custody. In case of the custody issue, ask the court to issue a provisional order awarding custody pending determination of the custody. And in cases of violence, then ask for a protection order in favor of the mother and children under RA 9262, a law protecting women and their children from violence.
Travel clearance of an illegitimate child
The DSWD’s amended rules involving travel clearance known as parental travel permit is no longer needed. This means that a minor traveling abroad with either of his/her parent or with his/her solo parent or legal guardian is exempt from the travel clearance requirement. In this regard, a solo parent should present a photocopy of a solo parent identification card issued by the Municipal Social Welfare Officer. In case of Muslim solo parent, a Tallaq or a Fasakh certification from the Shariah court or any Muslim barangay or religious leader should also be presented. While other proofs of solo parenthood are certificate of no marriage (CENOMAR) from the local civil registrar and death certificate or certificate of legal guardianship issued by the court.
Remedy if a child is taken out of the Philippines and brought to another country by one of the parents without the consent of the other
The remedies are provided by the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child taken from one member nation to another. The Philippines is a signatory to this convention. Thus, children who have been abducted or wrongfully retained in a contracting state not their country of habitual residence can be promptly returned from their country of habitual residence. The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.
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