Renewing Passport of Orphaned Minor

Hello Attys!

My sis-in-law is an orphaned minor (13 years old), both of my parent-in-laws and grandparent-in-laws have passed away. We're trying to renew her passport so she can travel and visit us overseas but stumbled on a problem with one of the requirements regarding who can stand as the guardian. At the moment my eldest sis-in-law is the next in the hierarchy as per family code to take parental authority over her.

According to DFA's website:

Orphaned minor applicant:

• Authenticated Death Certificates of parents from PSA
  
• Court order awarding guardianship of the orphaned minor applicant or substitute parental authority under Article 214 & 216 of the Family Code
  
• DSWD Clearance
  

The second bullet requires either a court order or substitute parent authority, take note of the "OR". We are now confused if we really need a court order on this because we don't want to go through it if we don't have to. I read a little bit on the provisions of Family code, particularly Art 214 and 216. It says in Art 214 that the surviving grant parent will take authority as appointed by court, however this is not applicable as all grandparents as I mentioned have passed away. In Art 216, it states the hierarchy on who can exercises the parental authority and see that for (1), art 214 is referenced to say that a court order will decide on who among the surviving grandparents will take authority, but the same is not stated in (2) where my eldest sis-in-law falls under. Is it correct to interpret that no court order is necessary in this case?

Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.

Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated:

(1) The surviving grandparent, as provided in Art. 214;

(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and

(3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.

Whenever the appointment of a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed.

I was able to get hold of someone from legal in DFA and the guy I talked to mentioned that it will still require court order but also admitted he's not a family lawyer so I'm really hesitant to take his words for it. He also mentioned that there shouldn't be an OR in the requirements but again I'm quite hesitant on it.

I would really appreciate if anyone can provide the correct interpretation of this, we're willing to go through the court that's necessary but want to make sure that we will do it because we have no other choice.

Thanks in advance!
Olee

Art. 216 provided for 3 options in the proper order, meaning in the absence of (1), (2) will apply and if (1) and (2) does not exist, (3) will apply.

I suggest you go to DSWD and asked for help. But as far as i know, since the child is living with you, provided you are 21 yrs old above, it is per se understood that you are the legal guardian as provided in paragraph 3 of art. 216

Thanks technified_ex!

She doesn't live with us but with the eldest sister. We already got the clearance from DSWD but the requirement is separate for DFA for passport renewal. I understand that Art 216 provides the three options in that order however it is not clear whether a court order is required for all of the options. For (1), Art 214 considers that if "several" grandparents survive, a court order will designate who is the authority hence the need for the court order, this I can understand.

But with (2) and (3), I don't see the need for court order as it's clear who is being appointed by law in those cases, eldest brother/sister and the actual custodian respectively. What's confusing is, the guy from legal dept of DFA seems to interpret this differently and was told that for all options 1,2 and 3, a court order is required.

Hope you can clarify further.

The word "or" in the requirements of the DFA when we apply the statutory constructions of law, it means you can avail either of the requirements required by the "or". like 1 or 2, you can choose either 1 or 2.

Try to ask 2nd opinion from other legal departments of the government like the DSWD legal department or CSC legal department. I would advise you to talked to their full pledge lawyer employee