My husband and I have been separated for five months now. My husband urged me to allow him to take our child because he earns more than I do. Now that my child is already with my husband, he forbids me from seeing my child. I want to take my child, but I am afraid that the court will not grant custody to me. Is my husband criminally liable in anyway, because he refuses to let me see our child even if there is no court order yet as to who among us would have custody over our child?
It is stated under Article 211 of the Family Code that the father and the mother shall jointly exercise parental authority over the person of their common children. This right over the custody of a legitimate child becomes an issue when parents separate. In case of disagreement as to the custody of a legitimate child, the parent concerned may file a petition for custody of his/her child in the Family Court of the place where he/she resides or where the minor may be found (Section 3, Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors). There are factors that the court will consider in awarding the custody of a child. The Rule of Custody of Minors provides that the court shall consider the following: (a) extrajudicial agreement regarding the custody; (b) the desire and ability of one parent to foster an open and loving relationship between the minor and the other parents; (c) the health, safety and welfare of 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. In any manner, the court shall primarily consider the best interest of the minor and shall give paramount consideration to his/her material and moral welfare in a custody case (Section 14, Rule on Custody of Minors and Writ of Habeas Corpus).
As to criminal liability, your husband may be liable for violation of Section 5(e) (1) of Republic Act (R.A.) No. 9262 otherwise known as Anti-Violence Against Women and Their Children Act of 2004. Under the said provision, the crime of violence against women and their children is committed by threatening to deprive or actually depriving the woman or her child of custody to her/his family.
We hope that we have answered your query. Our legal opinion may vary if other facts are stated 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