Can I get custody of my kids?

Hi!

I am a mother of two (8,9) and currently working abroad. My kids stay with their father back home. My partner and I were in a relationship for 11 years but we were never married. I was just wondering if I can get the custody of my kids even though I am out of the country? I want them to stay with my family. I have asked their father to give up the kids and let them live with my family but he verbally abuses me. I financially support my kids 100% because their father does not have a sustainable income. I pay for the house rent, electric and water bills, food, school, everything. Even though I have already broken up with my partner, I still have to provide for him because he has the kids(i think that's one of the reasons why he won't give them up). He already has a record in DSWD 3 years ago for neglecting the kids. What will be the legal process to ensure that my family will be able to get the kids from him? Can it be done through a representative because I am away?

Thanks for the help!

A petition can be filed in court for the custody. Perhaps some can give an opinion on how a mother outside of the country can file.
To give you a perspective on the order of preference I quote Section 14 on the Rule of Custody of Minors.
"As far as practicable, the following order of preference shall be observed in the award of custody: 1) both parents jointly; 2) either parent, taking into account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit; 3) the grandparent, or if there are several grandparents, the grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified; 4) the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; 5) the actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or 6) any other person or institution the court may deem suitable to provide proper care and guidance for the minor (Section 13, Rule on Custody of Minors). In awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. The best interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival, protection and feelings of security of the minor encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor."

Addition,

go, pwede ang SPA dyan,,

She need to go back to PH and file the petition, SPA will not do... and c'mon, she will go for a child custody battle and yet she will send someone to represent her? the judge will slap her left and right with sermons.

Under the law and by jurisprudence, the mother of an illegitimate child has the sole parental authority and custody over the child.

In Briones vs. Miguel, GR 156343, Oct. 18, 2004, the Supreme Court upheld the illegitimate child’s mother’s custody even when the mother was working in Japan and eventually brought the child out of the country to live with her there.

There are, however, exceptions to this rule and it is only when there are compelling reasons to deprive the mother of custody.  Examples are neglect or abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable disease.

Merely working abroad while entrusting the child to the care of their father or other immediate family member does not seem to be one of the grounds for taking away custody from the mother.  It cannot be considered as abandonment or neglect as well especially so that you are the one whose solely supporting their basic needs. This fact alone negates abandonment or neglect.

Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children’s home or an orphan institution. When a mother entrusts the custody of her illegitimate child to another, such as a friend or godfather, a relative or even their father, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same.

You can go to your ex-partner's house and get your children. If he refuses to give them to you, then go see a lawyer who can file for a petition for custody and other provisional remedies so that you can see your kids while the petition is pending in court.

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Disclaimer: The legal advice provided herein is only the legal opinion of the author and cannot substitute for the advice of a licensed legal practitioner. The author cannot take any responsibility for the results or consequences of any attempt to use or adopt any of the information or disinformation presented on this website.

Nothing in the author's legal opinion should be construed as an attempt to engage in the practice of law.

Kapag tinatago na ng iyong ex-partner ang mga anak mo, you can also file a petition for writ of habeas corpus under Section 20 on the Rules on Custody of Children so you can gain access to your children.

A writ of habeas corpus is a remedy available in our Rules of Court to relieve a person from unlawful restraint. Essentially, it is a writ of inquiry to test the right under which a person is detained (39 Am Jur 2d, Habeas Corpus, S1, 179 in Herrera, Remedial Law Vol. III-A, 2005). In relation to custody battles for children, a writ of habeas corpus is sought by parents whose custody to their children are being deprived from them by another parent, relative, or stranger having custody of their child.

In cases of violence, then ask for a protection order in favor of the mother and children under RA 9262 or “The Anti-Violence Act against Women and Children,” a law protecting women and their children from violence.

Further, if the children are taken away without your consent, you can file a civil and/or criminal case under Republic Act No. 9262.  Or, you can also choose to file kidnapping charges under the Revised Penal Code.

As earlier mentioned, under Article 176 of the Family Code, illegitimate children are under the parental authority of the mother. As a general rule, if the child is illegitimate, the father only has visitorial rights over his child. If he has grounds to insist that the mother is unfit to have custody over their child, he may still file for a petition for custody. Otherwise, he can only seek visitorial rights.

In case the father, who had been given access, takes the child away contrary to the terms under which he was given access, you can sue him under RA No. 9262 or file a petition for contempt against him for violating any court order.

TO REITERATE: 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.


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Disclaimer: The legal advice provided herein is only the legal opinion of the author and cannot substitute for the advice of a licensed legal practitioner. The author cannot take any responsibility for the results or consequences of any attempt to use or adopt any of the information or disinformation presented on this website.

Nothing in the author's legal opinion should be construed as an attempt to engage in the practice of law.