Q. Hi Atty Wong, I hope this letter find you well. I have written to you before and got your advice which definitely made my decision easier. Now I am writing to help my brother who is facing a big problem regarding his children’s custody.
My brother is married but separated from his wife who is now living in the US for 27 years. They have a now 28 year old daughter whom he raised alone & is working in US based in Iraq for about 6 years now.
My brother has a common law partner whom he has three children (aged 14, 10 & 8 years old) who is also married, (with three young adult children) but separated also from her husband (the children are with the husband).
Now, his wife was thrown out of my mother’s house, (where they live) but left behind their three children. She withdrew P 80,000 from my mother’s bank & tore that portion of the bank book. My mother cannot remember having withdrawn that amount of money. She is 86 years old. The withdrawal slip stated that she was assisted by my brother’s common law wife to withdraw the money. So she got thrown out of the house.
Now she threatens my brother that she will get all her kids if he does not give her any monetary support or do whatever she wants.
My questions are:
1. Is my brother obligated to give her monetary support?
2. Being the mother, she has the legal right to take those children. What can she do legally to take her children?
3. Is there something we can do to prevent this from happening? Should we file a custody suit first before she does?
I will be very grateful if you can give me some insights how to approach this problem. For people like us who have no friend or family who is a lawyer, it is such a blessing to have someone like you who unselfishly share his legal knowledge/view.
I will patiently wait for your response. Thank you. “Marie”
Ans: Hereunder is the response to your queries:
1) Under the Family Code of the Philippines (Executive Order 209) which took effect in 1989, there is no legal obligation on the part of common law partners to provide material support to each other, more so if they have been separated already and it was it other party who abandoned the other. However, as a rule, only legally married spouse are under obligation to provide material support to each other.
Interestingly, there is now this law in the Philippines which was passed in 2004, known Violence against Women and Their Children Act, and otherwise known as Republic Act No. 9262.
This particular law provided protection to women and their children against physical, psychological, emotional and economic violence suffered by a woman and her child or children. Such violence may be perpetrated by the husband or by a man who is not a spouse in the legal sense.
The woman covered under this law, could be the lawful spouse, common-law partner or a woman not being a spouse or not being a common-law partner, but have a “sexual or dating relationship” with the man. Thus, if your brother, as a common –law partner have supported this particularly woman and who is financially dependent from your brother for support and thereafter have ceased in proving such support , his common-law partner may invoke the said law (R.A. No.9262 ), as withdrawal of financial support or threatening to withdraw the same could constituted an offense under R.A. No.9262.
As regards the children, the parents (mother or father) are primarily under obligation to provide material support to their children whether legitimate or illegitimate (born out of wedlock) pursuant to Arts. 194 and 195 of the Family Code. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family or the concerned parent(s).
2) Under the law, and as a rule, the mother of an illegitimate child has the parental authority over her minor and emancipated children. This parental authority and the right to custody, may only be removed from the mother, is the court finds compelling reasons, taking into consideration the best interest of the child.
3) If your brother or any of your relative wants to have custody of the minor children, a court order from the Family Court, must be secured first granting custody and guardianship over these children.
Your brother or relative(s) may initiate custody proceedings before the court, more so that the mother of the minor children have as you mentioned, has already abandoned the children to your 86-year old mother.
The immediate action your family could do in order to shield yourselves against possible adverse retaliation or harassment (i.e. kidnapping charges, etc.) from the common-law partner at any given time, is to report the fact of abandonment of her children with the nearest office of the Department of Social Welfare and Development (DSWD) and informed the said agency of such fact and to put it on record , that because of such abandonment by the mother, your brother through your mother/relative ….. and taking into consideration the best interest and welfare of the children , have no recourse but to care for these children.
And if you are able to establish that the mother of the minor children has no means to provide material support of her children, or she’s an immoral woman or an undeserving mother , such could be grounds that the court will take into account in the award of custody to the petitioner. This petitioner could be your brother or your mother or any other relatives or actual custodian who should be at least 21 years old. ( Art. 216(3) Family Code).
In court proceedings for custody of children , the court shall take into account the choice of the children, unless the parent chosen is unfit. ( See Art.213 Family Code.)
Lastly, it is likewise recommended that you may secure the assistance from a lawyer in the Philippines for further professional assistance.
Thank you for writing and good luck.