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.

Divorce and Recognition of Foreign Judgments

The general rule of divorce in the Philippines is that the law does not provide for absolute divorce. Hence, Philippine courts cannot grant a divorce decree. This is the ruling in Garcia vs. Recio (G.R. No. 138322, October 2, 2001). A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad due to the following provisions of the New Civil Code:

Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.

Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.

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Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

In mixed marriages involving a Filipino and a foreigner, the Family Code allows the former to contract a subsequent marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry. Article 26 of the Family states:

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.

The case of Van Dorn v. Romillo Jr. (139 SCRA 139, October 8, 1985) and Pilapil v. Ibay-Somera (174 SCRA 653, June 30, 1989) have authoritatively applied this provision in mixed marriages between a Filipino and a foreigner. A divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws.

However, before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. A divorce obtained abroad is proven by the divorce decree itself. The best evidence of a judgment is the judgment itself. Rule 130 of the Rules on Evidence provides that when the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. The decree purports to be a written act or record of an act of an official body or tribunal of a foreign country. 

Under Sections 24 and 25 of Rule 132 of the Rules on Evidence, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office.

Philippine courts cannot take judicial notice of foreign laws. Like any other facts, they must be alleged and proved. Foreign marital laws are not among those matters that judges are supposed to know by reason of their judicial function. The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.

Respicio & Co. can help parties in the recognition of foreign divorce decrees.

Customs Procedure for Importation by Overseas Filipino Workers

Customs Memorandum Order No. 27-2015 dated 27 August 2015 governs the importation of balik-bayan boxes from Overseas Filipino Workers (OFWs). It was issued to simplify customs procedures and contribute to the enforcement efforts in suppressing unscrupulous individuals in abusing the balikbayan boxes privilege.

The order applies to all non-commercial inbound consolidated shipments of OFWs and for returning OFWs bringing in personal and household effects as provided under Section 105(f) of the Tariff and Customs Code of the Philippines (TCCP), as amended.

With the new regulation, balikbayan boxes of OFWs are not subject to random or arbitrary physical inspection. Instead, they are required only to undergo mandatory X-ray scanning. For containers, mandatory container X-ray scanning are conducted at the X-ray Inspection Project (XIP) Designated Examination Area (DEA) for preliminary examination of non-commercial inbound consolidated shipment.

In cases of non-commercial inbound consolidated shipment tagged “suspect” after X-ray scanning, the XIP image analysis inspector shall identify the Balikbayan boxes with possible violation and recommend the issuance of an Alert Order. For Balikbayan boxes without violation, it shall be segregated and provisionally released to allow its continuous processing.

Balikbayan boxes which are alerted shall be subjected to 100% physical examination at the authorized examination area to be conducted by a Customs Examiner in the presence of the apprehending officers, freight forwarder consolidator, representatives of the Overseas Workers Welfare Administration (OWWA) and/or a designated office of an OFW Association be present.

Respicio & Co. can help in customs procedures for importation.

Petition for Change of Name

According to In Re: Petition for Change of Name of Julian Lin Wang vs. Cebu City Civil Registrar (G.R. No. 159966, March 30, 2005), the names of individuals usually have two parts: the given name or proper name, and the surname or family name. The given or proper name is that which is given to the individual at birth or baptism, to distinguish him from other individuals. The name or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child; but the surname to which the child is entitled is fixed by law.

The Supreme Court in Republic v. Court of Appeals (G.R. No. 97906, 21 May 1992) provides that a name is said to have the following characteristics: (1) it is absolute, intended to protect the individual from being confused with others; (2) it is obligatory in certain respects, for nobody can be without a name; (3) it is fixed, unchangeable, or immutable, at least at the start, and may be changed only for good cause and by judicial proceedings; (4) it is outside the commerce of man, and, therefore, inalienable and intransmissible by act inter vivos or mortis causa; and (5) it is imprescriptible.

Republic Act No. 9048 allows the city or municipal civil registrar or the consul general to correct a clerical or typographical error in an entry and/or change the first name or nickname in the civil register without need of a judicial order. R.A. No. 9048 amended Articles 376 and 412 of the New Civil Code, which prohibited the change of name or surname of a person, or any correction or change of entry in a civil register without a judicial order.

R.A. No. 9048 allows the correction of clerical or typographical errors in any entry in civil registry documents, except corrections involving the change in sex, age, nationality and status of a person. A clerical or typographical error refers to an obvious mistake committed in clerical work, either in writing, copying, transcribing, or typing an entry in the civil register that is harmless and innocuous, such as a misspelled name or misspelled place of birth and the like, and can be corrected or changed only by reference to other existing record or records.
R.A. No. 9048 also allows the change of a person's first name in his/her civil registry document under certain grounds specified under the law through administrative process.

To avail of the remedy under R.A. No. 9048, the petitioner must meet one of the three factual circumstances: (1) the petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; (2) the new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or (3) the change will avoid confusion.

Respicio & Co. can help persons wishing to change their names for the grounds stated above.

Anti-Dummy Law in the Philippines

There are various laws and regulations restricting the maximum amount of foreign equity in corporations engaged in nationalized or partially nationalized economic activities in the Philippines. The sources of these restrictions are the 1987 Constitution, the Foreign Investments Act of 1991, and the Foreign Investment Negative Lists.

The Anti-Dummy Law (Commonwealth Act No. 108) seeks to penalize persons and corporations which circumvent these foreign equity restrictions. The offender can be: (i) any citizen of the Philippines, or (ii) any citizen of any other specific country. The proscribed offense includes the act of using the “name” or “citizenship” of a Filipino citizen to be used for the purpose of evading the foreign ownership limitations.

One example of a violation of the Anti-Dummy Law is the designation of a foreigner as a beneficial owner and of a Filipino citizen as a legal owner in an enterprise engaged in nationalized or partially nationalized economic activities. Under this nominee shareholder structure, the Filipino acts as a nominee shareholder while the foreigner acts as the real or actual owner hiding behind the former’s name. Corporate votes in stockholder resolutions and board meetings are exercised by the Filipino nominee shareholder, but the votes are in fact dictated by the foreign beneficial owner. Dividends are issued in the name of the Filipino nominee shareholder, but are subsequently transferred to the foreign beneficial owner.

The same Law also provides that “the exercise, possession or control by a Filipino citizen having a common-law relationship with an alien of a right, privilege, property or business, the exercise or enjoyment of which is expressly reserved by the Constitution or the laws to citizens of the Philippines, shall constitute a prima facie evidence of violation[.]” Under a common-law relationship, a man and a woman live exclusively as husband and wife without the benefit of marriage.

Section 2-A of the Law prohibits the election or appointment of foreigners in management positions. The exception is a foreigner serving as “technical personnel whose employment may be specifically authorized by the Secretary of Justice[.]” SEC Opinion No. 12-01 dated 31 January 2012 states that this prohibition is applicable to corporations engaged in partially nationalized economic activities, such as public utility corporations. The Supreme Court in King v. Hernaez (G.R. No. L-14859, 31 March 1962) articulated the rationale for such prohibition, as follows:

When the law says that you cannot employ an alien in any position pertaining to management, operation, administration and control, "whether as an officer, employee, or laborer therein", it only means one thing: the employment of a person who is not a Filipino citizen even in a minor or clerical or non-control position is prohibited. The reason is obvious: to plug any loophole or close any avenue that an unscrupulous alien may resort to flout the law or defeat its purpose, for no one can deny that while one may be employed in a non-control position who apparently is harmless he may later turn out to be a mere tool to further the evil designs of the employer. It is imperative that the law be interpreted in a manner that would stave off any attempt at circumvention of this legislative purpose.

Violation of the Anti-Dummy Law is meted out the following penalty: (i)   imprisonment for not less than five (5) nor more than fifteen (15) years, and (ii) by a fine of not less than the value of the right, franchise or privilege, which is enjoyed or acquired in violation of the provisions of the Law, but in no case less than PHP 5,000. Public officers who are participants in the violation shall be dismissed. Corporations which are involved in the offense shall be dissolved.

Respicio & Co. Law Firm can help you establish your business in the Philippines.