Support Pendente Lite

Support may be demanded from an erring spouse pending litigation, specifically during the following proceedings: (i) legal separation, (ii) declaration of nullity of marriage, and (iii) annulment. The support of the innocent spouse and common children shall be obtained from the properties of the absolute community or conjugal partnership.

According to the Supreme Court in Reyes vs. Ines-Luciano (G.R. No. L-48219), support pendente lite may be awarded without determining the full merits of the pending action. “Mere affidavits may satisfy the court to pass upon the application for support pendente lite. It is enough that the facts be established by affidavits or other documentary evidence appearing in the record.”

Under the Family Code of the Philippines, the amount of the support should be in proportion to the resources or means of the giver and to the necessities of the recipient. The support may be increased or reduced proportionately, according to the increases or reduction of necessities of the recipient and the resources or means of the person obliged. The obligation to give support is demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand.

Support must be demanded and the right to it established before it becomes payable. For the right to support does not arise from the mere fact of relationship, even from relationship of parents and children, but from ‘imperative necessity’ without which it cannot be demanded, and the law presumes that such necessity does not exist unless support is demanded. As to how the obligation to support can be performed, Article 204 of the Family Code provides that the person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has the right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto, such as the strained relationship between the parties.

The right to receive support as well as money or property obtained as such support shall not be levied upon on attachment or execution. However, in case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution.

Respicio & Co. can help in disputes concerning family relations.

Child Custody

The right of custody accorded to parents springs from the exercise of parental authority. According to Santos vs. CA (G.R. No. 113054, March 16, 1995), parental authority or patria potestas in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter's needs. The Court in Reyes vs. Alvarez (8 Phil. 732) also states that custody is a mass of rights and obligations which the law grants to parents for the purpose of the children's physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses.

Based on Articles 222-224 of the Family Code, the right of parental authority (to which the right of custody over a child attaches) is purely personal; therefore, 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. The Supreme Court in Celis v. Cafuir (86 Phil. 555) states that when a parent entrusts the custody of a minor to another, such as a friend or godfather, 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. The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody and company.

Under Article 8, Presidential Decree No. 603 or the Child and Youth Welfare Code, the child's welfare is always the paramount consideration in all questions concerning his care and custody. The law vests on the father and mother joint parental authority over the persons of their common children. In case of absence or death of either parent, the parent present shall continue exercising parental authority. Only in case of the parents' death, absence or unsuitability may substitute parental authority be exercised by the surviving grandparent.

The Writ of Habeas Corpus may be resorted to in cases where the rightful custody of any person is withheld from the person entitled thereto. Although the Writ of Habeas Corpus ought not to be issued if the restraint is voluntary, the Supreme Court held in Salvana v. Gaela (55 Phil. 680) that the said writ is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of her own free will. It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy; rather, the writ of habeas corpus is prosecuted for the purpose of determining the right of custody over a child.

In a Writ of Habeas Corpus involving child custody, the controversy does not involve the question of personal freedom, because an infant is presumed to be in the custody of someone until he attains majority age. In passing on the writ in a child custody case, the court deals with a matter of an equitable nature. Not bound by any mere legal right of parent or guardian, the court gives his or her claim to the custody of the child due weight as a claim founded on human nature and considered generally equitable and just. Therefore, these cases are decided, not on the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of adults, but on the court’s view of the best interests of those whose welfare requires that they be in custody of one person or another. Hence, the court is not bound to deliver a child into the custody of any claimant or of any person, but should, in the consideration of the facts, leave it in such custody as its welfare at the time appears to require. In short, the child’s welfare is the supreme consideration.

The foregoing principles considered in the issuance of Writ of Habeas Corpus for child custody are: (1) that the petitioner has the right of custody over the minor; (2) that the rightful custody of the minor is being withheld from the petitioner by the respondent; and (3) that it is to the best interest of the minor concerned to be in the custody of petitioner and not that of the respondent.

Respicio & Co. can help you in child custody cases and family law.