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.
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 email@example.com