Pre­ferred right

The Philippine Star - - OPINION - Email: at­tyjos­esi­son@gmail.com JOSE C. SISON

Un­der Ar­ti­cle 176 of the Fam­ily Code, il­le­git­i­mate chil­dren shall be un­der the parental au­thor­ity and cus­tody of the mother. But if the mother is out of the coun­try, is the bi­o­log­i­cal fa­ther en­ti­tled to the cus­tody of said il­le­git­i­mate child? This is the is­sue raised in this case be­tween Hazel and Alvin.

While both were work­ing in Ja­pan and co­hab­it­ing as live in part­ners, Hazel and Alvin be­got a son, whom they named Sonny as ap­pear­ing in his birth cer­tifi­cate. Even­tu­ally they parted ways as Alvin had an il­licit af­fair with an­other woman. Hazel on the other hand also got mar­ried to Hiroshi Sato, a Ja­panese national as she con­tin­ued work­ing there. So when Sonny was about two years old, Alvin caused his mi­nor son to be brought back to the Philip­pines to be un­der the cus­tody and care of his par­ents who are both re­tired and re­ceiv­ing monthly pen­sions.

Alvin sub­se­quently came back to the Philip­pines and stayed with Sonny at his par­ents’ res­i­dence. When Sonny was about four years old and study­ing at a nurs­ery school, Alvin al­leged that Hazel’s sis­ters, Celia and Risa came to their house on the pre­text of vis­it­ing Sonny and re­quested that they be al­lowed to bring him at a Mall with a prom­ise to bring him back in the af­ter­noon. Sonny agreed but Risa and Celia did not bring Sonny back as they promised.

Alvin said that he tried to look for his son and get him back but could not lo­cate him even as he went to the prov­ince of Hazel’s par­ents. He even sought the as­sis­tance of the po­lice and the DSWD but to no avail. So he filed a pe­ti­tion for a Writ of Habeas Corpus be­fore the Court of Ap­peals (CA) against Hazel and her two sis­ters Celia and Risa. Act­ing on said Pe­ti­tion, the CA is­sued an or­der re­quir­ing Hazel, Celia and Risa to ap­pear in court bring­ing Sonny with them.

In re­ply to the pe­ti­tion, Hazel de­nied that Alvin was the one who brought Sonny to the Philip­pines and claimed that she was the one who brought their son here pur­suant to their agree­ment. He also de­nied that her sis­ters took Sonny from Alvin or the lat­ter’s par­ents. She al­leged that she was the one who took Sonny from Alvin when she re­turned to the Philip­pines and Alvin agreed. She also al­leged that Alvin was de­ported from Ja­pan un­der an as­sumed name for vi­o­lat­ing Ja­panese laws and has not been gain­fully em­ployed here. Sonny’s cus­tody, she al­leged was en­trusted to Alvin’s par­ents when they were both work­ing in Ja­pan.

While the pe­ti­tion was pend­ing be­fore the CA, Alvin learned that Hazel and her two sis­ters were pre­par­ing the travel papers of Sonny, so the child could join Hazel and her hus­band Sato in Ja­pan. So Alvin filed an Ur­gent Mo­tion for a Hold De­par­ture Or­der (HDO). But the CA de­nied the Mo­tion for lack of merit. Hence Hazel was able to bring the child with her to Ja­pan where he is study­ing now.

Ap­ply­ing Ar­ti­cle 213 of the Fam­ily Code (Par. 2), the CA awarded the cus­tody of Sonny to his mother Hazel. While ac­knowl­edg­ing that Alvin truly loved and cared for his son, the CA nev­er­the­less found no com­pelling rea­son to sep­a­rate the mi­nor from his mother. Alvin was just granted vis­i­to­rial rights.

But Alvin still ques­tioned this rul­ing be­fore the Supreme Court. He con­tended that while Hazel has pref­er­en­tial right to the cus­tody of their son, cus­tody should be awarded to him ev­ery time Hazel leaves and goes back to Ja­pan and dur­ing the pe­riod that she stays there. So, if Hazel is in the coun­try, she will have cus­tody, but when she is abroad, he should have cus­tody as the bi­o­log­i­cal fa­ther, Alvin ar­gued.

The SC how­ever ruled that Alvin is wrong. In the first place the child is presently in Ja­pan al­ready with his mother Hazel where he is study­ing. So the pe­ti­tion has be­come moot and aca­demic. Se­condly, hav­ing been born out­side of a valid mar­riage, Sonny is deemed an il­le­git­i­mate child of Alvin and Hazel, and pur­suant to Ar­ti­cle 176 of the Fam­ily Code (FC), il­le­git­i­mate chil­dren shall use the sur­name of the mother and shall be un­der the parental au­thor­ity and cus­tody of the mother. This is the rule re­gard­less of whether the fa­ther ad­mits pa­ter­nity. Recog­ni­tion of an il­le­git­i­mate child by the fa­ther as in this case could only be a ground to give sup­port to but not cus­tody of, the child.

Thus, there is no ques­tion that Hazel, be­ing the mother of and hav­ing sole parental au­thor­ity over the mi­nor, is en­ti­tled to have cus­tody of him. She has the right to keep him in her com­pany. She can­not be de­prived of that right, and she may not even re­nounce or trans­fer it, ex­cept in cases au­tho­rized by law. Not to be ig­nored in Ar­ti­cle 213 of the FC is the caveat that, gen­er­ally, no child un­der seven years of age shall be sep­a­rated from the mother ex­cept when the court finds cause to or­der other­wise (Bri­ones vs. Mari­cel, Fran­cisca and Loreta Miguel, G.R. 156343, Oc­to­ber 19, 2004)

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