• Father seeks custody of daughter amid VAWC charges

    Persida Acosta

    Persida Acosta

    Dear PAO,
    My brother is still married to my sister-in-law but they have been living separately, though within the same housing compound. Despite their differences, my brother gave my sister-in-law a small sari-sari store business and he sends their daughter to school. He owns several fishing boats and works day in and day out. Sad to say, my sister-in-law does not allow my brother to see their daughter. He works hard for them but she denies him the time which he could spend with their daughter. Unfortunately, her business closed and she sold most of her personal properties such as the television, refrigerator, bed and the like. We were told that she has an outstanding debt with a lending company. Currently, she took off with my niece without my brother’s knowledge. We heard that she is planning to file a case against him for violence against women and their children and that she intends to get my brother’s fishing boats. What should my brother do in case she pursues this? Please also enlighten us on what legal steps my brother can take so that he can also have the custody over his daughter. Thank you and more power.
    Concerned Sister

    Dear Concerned Sister,
    A complaint for violence against women and their children may only be filed if it can be shown that an act or a series of acts which result or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse was committed against a woman, who is the assailant’s wife, former wife, one with whom he has or had a sexual or dating relationship, or with whom he has a common child, or against the assailant’s child (Section 3, Republic Act No. 9262).

    In the situation that you have presented before us, we do not see any indication that your brother committed any form of violence against his wife and their daughter. You even mentioned that your brother has continued providing support for both his wife and child despite the fact that he and his wife have been living separately from each other.

    However, this does not preclude your sister-in-law from pursuing the filing of such criminal complaint if in fact your brother has committed any of the forms of violence above-mentioned and she can establish her allegations by concrete evidence. Once the complaint is filed, it is necessary for your brother to dispute the allegations of his wife and substantiate his claims and defenses with his own evidence.

    Insofar as your brother’s desire to gain the custody of his daughter, it is essential for him to file a petition in court. While we do not discount the fact that Article 211 of the Family Code of the Philippines expressly provides that both the father and the mother shall jointly exercise parental authority over the persons of their common child, this provision of the law does not prohibit either the father or the mother from filing a petition for custody, especially when one of the parents is no longer fit to care for and rear the child.

    Nevertheless, we wish to stress that, in determining as to whom the custody of your niece will be given, our courts will consider, ultimately, whatever is for her best interest. Under the Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors, “best interest” is defined as “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” (Section 14, A.M. No. 03-04-04-SC).

    We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net


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    1. Hi Precy,

      Going back to our Ateneo days, we refer to ADMU as “The School”, but when someone refers to an person “the school” it’s derogatory.

      Remember we have this expression “Schooled at”,
      Well we’re proud to be schooled at Ateneo unlike other bogus law certificate etc.

      I like to give “a jar of candy”, “a box calendar”, to someone who innuendo “The school”

      But anyway, can you discuss sometime “Determination of the Testator’s Sanity with regards to notarial wills”

    2. Husband and wife are obliged to stay together, and the husband determines the conjugal home, the only exception to the wife is when she renders service to the country far from their family home.

      It is also provided that husband and wife render mutual support respect and assistance. both parents exercises parental authority and in case of disagreement the husband’s decision prevails. Parental Custody both parent, however the law says “no child seven (7) years and under shall be separated from the mother except upon court findings taking into consideration the paramount interest of the child.” In this case there are no disclosures of legal impediments to the husband to have “Shared Custody” on weekends. Wife cannot just arbitrarily deprieve the husband of “Part custody”.

      With regards to the fishing vessel, it appears that the husband accumulated those fishing vessels through his own industry, and the wife cannot just demand, she must file a petition for dissolution of their property regime before the Regional Trial Court.

      Support may be demanded for the minor child, however, the wife without any justification left the compound, she cannot demand support, unless the husband gave cause for her to leave the house such as violence or physical abuse.