File petition for custody of minor and writ of habeas corpus for access to child

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Persida Acosta

Persida Acosta

Dear PAO,
I am a Canadian who visited Manila a few months back. I met a young man who had a child with a young woman. The woman is now working abroad and her family has taken the child and is in hiding. How can this man use the courts to obtain access to his son?

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Sincerely,
Joe

Dear Joe,
If your Filipino friend is married to the young woman, he can file a petition for custody of minor and writ of habeas corpus to seek access to his son. Under the Family Code, both parents of a legitimate child have parental rights over their child. This includes custody of the child. A petition for custody may be filed where the petitioner resides or where the minor may be found.

Under Section 20 on the Rules on Custody of Children, he may also file a petition for writ of habeas corpus to gain access to his son. A writ of habeas corpus is a remedy available in our Rules of Court to relieve a person from unlawful restraint. Essentially, it is a writ of inquiry to test the right under which a person is detained (39 Am Jur 2d, Habeas Corpus, S1, 179 in Herrera, Remedial Law Vol. III-A, 2005). In relation to custody battles for children, a writ of habeas corpus is sought by parents whose custody to their children are being deprived from them by another parent, relative, or stranger having custody of their child.

According to you, his son is being hidden from him. Therefore, he can file a petition for habeas corpus in relation to custody before the Family Court having jurisdiction of the place where he may be hidden. If he has no clue where in the Philippines his child may be found, he can file his petition in the Court of Appeals.

If they are not and were never married, but he acknowledged the child either by signing the Affidavit of Acknowledgment found in the Birth Certificate or he executed an Affidavit of Acknowledgment, he can still file a petition for habeas corpus. However, under Article 176 of the Family Code, illegitimate children are under the parental authority of the mother. As a general rule, if the child is illegitimate, the father only has visitorial rights over his child. If he has grounds to insist that the mother is unfit to have custody over their child, he may still file for a petition for custody. Otherwise, he can only seek visitorial rights. Again, he can file his petition for custody in his place of residence or where his son resides.

If he did not acknowledge his child and he has no proof that the child is his, he must first gather evidence proving that he is indeed the father. Once he has established this, he may proceed to file the petitions mentioned in the preceding paragraph.

We hope that we were able to enlighten you on the matter. 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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