I am a mother of two and my ex-husband is in the UK working as a nurse. Last year, my former husband visited my children and took them with him with a promise of returning them. He is now back in the UK, but my children are still with his parents and they refuse to let me see them.
My children are in the house of my former husband’s parents in Bicol, and I want to know what remedy is left of me considering that even if there is a case for violation of Republic Act 9262 filed against my former husband, the warrant of arrest cannot be enforced against him because he is not here.
I hope that you could help me.
You mentioned in your letter that your children were borrowed by your former husband from you with the promise of returning them to you. From the said fact, we assume that you retained your custody over your children after your marriage with him was severed. Under the law, in case of separation of the parents, parental authority shall be exercised by the parent designated by the court (Article 213, Family Code). Thus, when your husband failed to return your two children to you after he spent time with them he violated your right to custody over your children.
You also mentioned that your husband is already in the United Kingdom (UK) and your children are with their grandparents who prevent you from seeing them. Your former parents-in-law do not have any authority to withhold from you your right to custody over your two children. Under the law, the surviving grandparent can only exercise substitute parental authority over their grandchildren in default of parents or a judicially appointed guardian for the latter (Article 216, Family Code). Thus, they do not have any right of custody over your children.
The law gives you the rightful custody of your child and should the father of your children want to take custody of them, he must do so by filing a case in court. He has to prove to the satisfaction of the court compelling reasons that may deprive you of the rightful custody over your children. Your children’s father should not take legal matters in his own hands. Neither can your children’s grandparents do so because their right to custody over your children is only in a substitute capacity.
To regain custody over your children you have to file a petition for habeas corpus. habeas corpus may be availed of when the rightful custody of any person is withheld from the persons entitled thereto. You may file a petition for habeas corpus before the Family Court or in its absence in the proper regular courts in the place where your children are presently located. You may also file the same before the Supreme Court or before the Court of Appeals. If the habeas corpus is granted by the Supreme Court and the Court of Appeals, the same shall be enforceable anywhere in the Philippines (Section 2, Rule 102, Rules of Court). The writ of habeas corpus commands the respondent to bring to the court which issued the writ at a designated time and place the body of the person who is in his/her custody.
In the preparation of a Petition for Habeas Corpus, you will need the assistance of a lawyer because of the legal implications and intricacies attendant to it. Application for the writ of habeas corpus shall be by petition signed and verified either by the party for whose relief it is intended, or by some person on his behalf (Section 3, Rule 102, Rules of Court).
We hope that we were able to address your query. We need to remind you that this legal advice is based on the facts that you have stated and the same may vary if other facts are added 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