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Things to consider in Child Custody

  1. In custody cases, the supreme importance is the good and well-being of the child.
  1. Common rule is custody of a child under 7 year of age the mother is preferred.
  1. Exception: In case there are convincing causes, custody may be deprived and allowed to a different person under Article 214 of the Family Code.
  1. Convincing causes for a mom to lose custody: negligence; abandonment; joblessness and immorality; habitual drunkenness; drug addiction; ill-treatment of the child; insanity; affliction with a communicable illness.

Under the Philippine laws, together parents of a legal child have parental rights over their child. This includes custody of the child. A petition for custody may be filed where the petitioner ‘s residence or where the minor may be located.

In accordance to Section 20 on the Rules on Custody of Children, a petition for writ of habeas corpus may be filed to have access or visitation rights over his son. It is a remedy to relieve a person from unlawful restraint. It sought by parents whose parental rights to their children are being withheld from them by another parent, family member, or third party having custody of their child.

No prescribed form or religious rite for the solemnization of marriage is required. (Art. 6) The couple's written agreement where they declare themselves as husband and wife, signed by them before a judge and two capable witnesses, even though it was independently made by them, still counts as a valid ceremony. [Martinez v Tan, (1909)]

Minimum requirements prescribed by law: (AP-PMS)
(1) Appearance of contracting parties personally before the solemnizing officer [Art. 3]
(2) Personal declaration that they take each other as husband and wife. [Art. 3]
(3) Presence of at least two witnesses of legal age. [Art. 3]
(4) The declaration shall be contained in the Marriage certificate. [Art. 6]
(5) Marriage certificate shall be Signed by the contracting parties and their witnesses and attested by the solemnizing officer. [Art. 6]

People v. Santiago, (1927): A marriage entered into by a person whose real intent is to avoid prosecution for rape is void for total lack of consent. The accused did not intend to be married. He merely used such marriage to escape criminal liability.

Eigenmann v. Guerra (1964): There was no reasonable and well-grounded fear of an imminent and grave evil upon him or his property, father-in-law’s words were merely an admonition typical of concerned parents.

Male or female 18 years old and above, not under any impediments mentioned in Art. 37 (incestuous marriage) & Art. 38 marriage against public policy), may contract marriage.

Must be male and female
Jones v Hallahan, (1973): Application for marriage license was denied since marriage is defined by law as a contract entered into between a man and a woman.

Goodridge v. Dept. of Public Health, (20 03): Same-sex couples should not be denied the same benefits as heterosexual couples; the right to marry includes the right to choose who to marry.

Silverio v Republic, (2007): Changing of gender in one’s birth certificate was denied; otherwise, it would result
in confusion and would allow marriage between persons of the same sex which is in defiance of the law, as marriage is a union between a man and a woman.
Note: The best source for citing the requirement (of male/female) is still statutory, as provided explicitly in the Family Code.

Art. 1, FC. 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. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code.

KINDS OF REQUISITES
(1) Essential Requisites (Art. 2)
(a) Legal Capacity of the contracting parties, who
must be a male and a female
(b) Consent (of the parties) freely given in the
presence of a solemnizing officer.
(2) Formal Requisites (Art. 3)
(a) Authority of solemnizing officer
(b) A valid marriage license
(c) Except: Marriages in articulo mortis or when
one or both parties are at the point of death
(d) Marriage Ceremony:
(i) Appearance of contracting parties in the
presence of a solemnizing officer
(ii) Personal declaration that they take each
other as husband and wife in the presence of
not less than 2 witnesses

RULE ON ADOPTION

A. DOMESTIC ADOPTION

Section 1. Applicability of the Rule. – This Rule covers the domestic adoption of Filipino children.

Section 2. Objectives. – (a) The best interests of the child shall be the paramount consideration in all matters relating to his care, custody and adoption, in accordance with Philippine laws, the United Nations (UN) Convention on the Rights of the Child, UN Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption, Nationally and Internationally, and the Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption.

(b) The State shall provide alternative protection and assistance through foster care or adoption for every child who is a foundling, neglected, orphaned, or abandoned. To this end, the State shall:

(i) ensure that every child remains under the care and custody of his parents and is provided with love, care, understanding and security for the full and harmonious development of his personality. Only when such efforts prove insufficient and no appropriate placement or adoption within the child's extended family is available shall adoption by an unrelated person be considered.

(ii) safeguard the biological parents from making hasty decisions in relinquishing their parental authority over their child;

(iii) prevent the child from unnecessary separation from his biological parents;

(iv) conduct public information and educational campaigns to promote a positive environment for adoption;

(v) ensure that government and private sector agencies have the capacity to handle adoption inquiries, process domestic adoption applications and offer adoption-related services including, but not limited to, parent preparation and post-adoption education and counseling;

(vi) encourage domestic adoption so as to preserve the child's identity and culture in his native land, and only when this is not available shall inter-country adoption be considered as a last resort; and

(vii) protect adoptive parents from attempts to disturb their parental authority and custody over their adopted child.

Any voluntary or involuntary termination of parental authority shall be administratively or judicially declared so as to establish the status of the child as "legally available for adoption" and his custody transferred to the Department of Social Welfare and Development or to any duly licensed and accredited child-placing or child-caring agency, which entity shall be authorized to take steps for the permanent placement of the child.

Section 3. Definition of Terms. – For purposes of this Rule:

(a) "Child" is a person below eighteen (18) years of age at the time of the filing of the petition for adoption.

(b) "A child legally available for adoption" refers to a child who has been voluntarily or involuntarily committed to the Department or to a duly licensed and accredited child-placing or child-caring agency, freed of the parental authority of his biological parents, or in case of rescission of adoption, his guardian or adopter(s).

(c) "Voluntarily committed child" is one whose parents knowingly and willingly relinquish parental authority over him in favor of the Department.

(d) "Involuntarily committed child" is one whose parents, known or unknown, have been permanently and judicially deprived of parental authority over him due to abandonment; substantial, continuous or repeated neglect and abuse; or incompetence to discharge parental responsibilities.

(e) "Foundling" refers to a deserted or abandoned infant or child whose parents, guardian or relatives are unknown; or a child committed to an orphanage or charitable or similar institution with unknown facts of birth and parentage and registered in the Civil Register as a "foundling."

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