My son and his wife separated two years after their wedding. Their only child stayed with the mother but comes to visit us every Friday. The child is now nine years old. They began having arguments about the custody of the child because the mother wants to transfer the child to a far away place. My son wants to take custody of my grandchild but the mother argues that my son has no right over the child because their marriage was fake. I have no doubt that their marriage was fake because my son told me that there was a ceremony and marriage celebration, which were all captured in photos but there is no record of their marriage at the NSO and city hall.
Dear Jayson B.,
Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life (Article 1, Family Code). It is considered as valid if the parties who are male and female and have legal capacity to contract marriage freely consented to a marriage in the presence of the solemnizing officer (Article 2, Family Code). In addition thereto, the solemnizing officer should have authority to solemnize marriage, that there is a valid marriage license and that there is a marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age (Article 3, Family Code).
After marriage, it shall be the duty of the person solemnizing the marriage to furnish either the contracting parties the original of the marriage certificate and to send the duplicate and triplicate copies of the certificate not later than fifteen (15) days after the marriage, to the local civil registrar of the place where the marriage was solemnized (Article 23, Family Code).
The absence of a marriage certificate at the National Statistics Office (NSO) or even at the local civil registry of the place where the marriage was solemnized does not connote that a marriage is fake or that no marriage was celebrated at all. There is a valid marriage when all the requisites mentioned above are present. It may be that the solemnizing officer only failed to perform his duty to file a copy of the marriage certificate to the local civil registry or it may be that the local civil registry failed to make it appear in its record the marriage certificate filed by the solemnizing officer. In connection therewith, your son may present his copy or the copy of the solemnizing officer to the proper local civil registry for late registration of marriage.
On the other hand, the sole custody of your grandchild may be given to your son if the court so orders upon filing of a petition for custody. In a custody case, the court shall consider the best interest of your grandchild and shall give paramount consideration to his material and moral welfare. The following are the factors in determining the parent to whom custody shall be given: (a) Any extrajudicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contact with the non-custodial parent on a regular basis, except when there is an existing threat or danger of physical, mental, sexual or emotional violence which endangers the safety and best interests of the minor; (b) The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent; (c) The health, safety and welfare of the minor; (d) Any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minor, including anyone courting the parent; (e) The nature and frequency of contact with both parents; (f) Habitual use of alcohol, dangerous drugs or regulated substances; (g) Marital misconduct; (h) The most suitable physical, emotional, spiritual, psychological and educational environment for the holistic development and growth of the minor; and
(i) The preference of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit (Section 14, A.M. No. 03-04-04 SC, RE: Proposed Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors).
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are elaborated therein.