Disclaimer: The following discussion is provided for general informational and educational purposes only. It is not intended as legal advice, nor does it create an attorney-client relationship. If you have specific questions about your situation, you should seek assistance from a qualified attorney in the Philippines.

Overview

An Affidavit of Sole Custody is a legal document in which a parent—often the mother or father—declares under oath that they have sole custody and parental authority over a minor child. In the Philippine context, this affidavit is sometimes used to support international travel or visa applications when only one parent is accompanying the child. It is particularly relevant if:

The parents are not married (and parental authority under Philippine law automatically vests in the mother, unless otherwise provided by court order).
A court has already awarded sole custody to one parent.
One parent is deceased, or their whereabouts are unknown.

However, it is crucial to distinguish between:

An Affidavit of Sole Custody, which is a sworn statement of fact supported by available evidence, and
A Court Order awarding custody, which is a formal, judicially granted ruling.

An affidavit, in itself, is not a substitute for a court judgment on custody. Instead, it is often used to establish or demonstrate that you have de facto sole custody under applicable laws or judicial decisions.

Legal Framework in the Philippines

Family Code of the Philippines (Executive Order No. 209, as amended)
- Governs matters relating to marriage, property relations, support, and parental authority/custody.
- If a child is born out of wedlock, the mother generally has sole parental authority and custody, unless a court rules otherwise.
Presidential Decree No. 603 (Child and Youth Welfare Code)
- Outlines the rights and responsibilities of parents or guardians.
- Addresses the requirements for traveling with minors in certain cases.
Other Relevant Laws and Regulations
- Department of Social Welfare and Development (DSWD) guidelines for travel clearances for minors traveling abroad.
- Philippine Bureau of Immigration regulations on documentation for minors traveling with one parent.

Situations Where an Affidavit of Sole Custody May Be Necessary

International Travel and Visa Applications
- Many foreign embassies or consulates require proof that the accompanying parent has full custody or the legal right to travel alone with the child.
- This reduces the risk of international child abduction concerns.
Passport Applications
- The Department of Foreign Affairs (DFA) may request proof of sole custody (particularly if the other parent is not available to give consent or sign required documents).
Enrollment or School Transfer Requirements
- Some schools may request documentation proving custody or parental authority, although this typically requires only the birth certificate and, where applicable, a court order.
Emergency Situations
- If one parent is incapacitated, deceased, or cannot be located, the other parent may need to execute an affidavit to move forward with certain legal, medical, or government transactions.

Requirements for Obtaining an Affidavit of Sole Custody

Evidence Establishing Sole Custody
- For a child born out of wedlock:
  - The birth certificate stating that the parents were not married at the time of birth. The mother, by default, has sole parental authority under Article 176 of the Family Code (as amended by R.A. 9255).
- For a child born within marriage, but sole custody awarded to one parent by court order:
  - A certified true copy of the court decision or final judgment of custody.
Supporting Documents
- Original or certified true copy of the child’s Birth Certificate (issued by the Philippine Statistics Authority or the local civil registrar).
- Valid government-issued ID of the parent executing the affidavit.
- If applicable, the Court Order or Final Judgment awarding custody.
- Death Certificate of the other parent (if deceased).
- Any additional evidence demonstrating that the other parent’s whereabouts are unknown (e.g., affidavit from relatives, public notices, or local records).
Drafting the Affidavit
- Must be in a standard legal format, written in English or Filipino, stating:
  1. The identity and personal circumstances of the affiant (the parent claiming sole custody).
  2. The identity and personal circumstances of the child.
  3. The basis for claiming sole custody (e.g., child born out of wedlock, court order, death of the other parent).
  4. The purpose for which the affidavit is being executed (e.g., for travel, visa, government transactions).
  5. A statement affirming that the facts declared are true and correct.
Notarization
- The affidavit must be signed in the presence of a notary public.
- The notary will require the affiant to present a valid government-issued ID.
- Once notarized, it becomes a public document attesting to the affiant’s statements.

Step-by-Step Process

Gather All Necessary Documents
- Child’s Birth Certificate.
- Valid IDs.
- Court Order (if applicable).
- Proof of the other parent’s inability or unavailability to exercise custody (e.g., a declaration of presumptive death if the parent has been missing, or a death certificate, if deceased).
Draft the Affidavit
- You may consult a lawyer or use a standard affidavit template as a guide.
- Ensure that the draft accurately reflects your situation and the reason for needing the affidavit.
Notarize the Document
- Sign the affidavit before a notary public.
- Pay any applicable notarization fees.
Obtain Additional Authentications if Needed
- If the affidavit will be used abroad, you may need an Apostille from the Department of Foreign Affairs (DFA) or a consular authentication (depending on the destination country’s requirements).
- Check with the foreign embassy or consulate of the country to which you are traveling to confirm the needed certifications.
Keep Copies for Your Records
- Retain the original notarized affidavit.
- Provide certified copies to relevant government agencies or foreign embassies, as required.

Limitations and Considerations

An Affidavit Is Not a Court Order
- A notarized affidavit does not have the same legal weight as a court-ordered custody decree.
- If custody is contested or if there is an ongoing dispute, you may need a judicial declaration or ruling on custody.
Possible Immigration and DSWD Requirements
- For minors traveling out of the country without both parents, the DSWD often requires a Travel Clearance for the child. This is separate from the affidavit and involves additional paperwork.
- Where a child is traveling with only one parent, the Bureau of Immigration may require:
  - Affidavit of Support and Consent (executed by the non-traveling parent), or
  - Proof of sole custody (the Affidavit of Sole Custody plus supporting documents).
Accuracy and Truthfulness
- Falsely claiming sole custody can lead to serious legal consequences, including perjury charges.
- Ensure that every statement in the affidavit is accurate and can be substantiated.
Foreign Jurisdiction Recognition
- Different countries have different requirements for recognizing foreign legal documents. Some require the document to be apostilled; others require authentication or consular legalization.
- Always verify the destination country’s rules well in advance of travel.
Court Proceedings for Contested Custody
- If the other parent contests your claim of sole custody or if there is a dispute, you might be required to initiate or resolve a custody case in Philippine courts to obtain a court-issued custody order.

Practical Tips

Consult a Lawyer Early
- While drafting an affidavit may seem straightforward, consulting a family law attorney can help ensure you comply with all procedural and substantive requirements.
Maintain Updated Records
- Keep an organized file of court orders, birth certificates, death certificates (if applicable), and other relevant documents to avoid delays.
Plan Ahead for Travel
- Government agencies (DSWD, Bureau of Immigration) and foreign embassies can have lengthy processing times.
- Start the process and gather the documentation well in advance of your intended departure date.
Check Embassy Requirements
- Different consulates/embassies may have unique requirements for minor visa applicants. Some may specifically request an affidavit of custody alongside a court order or birth certificate.
- Always confirm through their official website or a direct inquiry.
Renewal or Updated Affidavit
- If your situation changes (e.g., you obtain a new court order, the other parent resumes contact, or your marital status changes), you may need to update your affidavit accordingly.

Conclusion

Obtaining an Affidavit of Sole Custody in the Philippines for purposes of international child visitation or travel is a critical step for many single or sole custodial parents. While this document can help streamline passport or visa applications and immigration checks, it is crucial to understand its scope and limits:

The affidavit must be supported by clear legal and factual grounds (e.g., birth certificate for children born out of wedlock, court order, death certificate).
It must be properly notarized to be recognized in official transactions.
In the event of contested custody or complex family circumstances, a court-issued custody decree typically carries more legal weight.

Before proceeding, always verify the current requirements of Philippine government agencies (DSWD, DFA, Bureau of Immigration) and the specific immigration or consular regulations of the foreign country you plan to visit. Where necessary, seek professional legal counsel to ensure your affidavit and any supporting documents fully comply with Philippine and international standards.