LEGAL matters for SINGLE parents

[rudy_arete]

Hi everyone!

I've encountered a series of legal queries in line with cases of single parenthood. I'm not yet a lawyer but I've gone through some legal proceedings myself and I'm a hell of a researcher. It’s my profession anyway. If you have any question regarding child custody, adoption, legitimation, change of name, birth certificate, child support, or any other related topic, please post it here.

I am hoping we could help each other. I’ll do my best to provide some guidelines myself based on comments and experiences of lawyers who are kind enough to give us their time. Free of charge.

[rudy_arete]

kelan ko lang nalaman....

regardless of whether the child carries his biological father's surname or not... when the mom marries (or again) and kunyari, whoever she marries is generous and loving enough to adopt her child to give the child his name din, the biological mother also has to adopt her own child...

pwede rin naman ngang hindi...

but see, if the mother/couple doesn't/don't... the child will get half lang of what his half-siblings born within the marriage will get

my BIL kasi is trying to come up with the P70k to adopt the child of his girlfriend (though ang pinaka-problem nila is having the biological dad give up his rights)

my hubby's colleague naman told us na yun nga, part of the proceedings will involve her having to 'adopt' her own child

that's why Sharon and Kiko Pangilinan adopted KC... if not, KC would get half lang, and Sharon said in an interview that she'd die naman if KC would be treated worse than her other siblings when they're all her children naman...

I've undergone the process of adoption kaya kahit single father, nakuha ko custody daughter ko.. yup, ganoon po talaga.. because technically, pag ipinanganak ang bata outside of wedlock.. illigitimate ang status nya.. and under the law, kalahati lang ang pwedeng manahin ng isang illigitimate compared sa mga anak na legitimate... The process of adoption is the only way to uplift the status of the child from illigitimate to legitimate.. Dun naman sa mga biological parents na nagkatuluyan pa rin and eventually nagdesisyon magpakasal na rin, kelangan pa din idaan sa process of ligitimation ang anak nila after magpakasal. With regards dun sa aspect na "..though ang pinaka-problem nila is having the biological dad give up his rights.." may iba pa namang paraan kahit ayaw nung father na igive up ang rights nya.. there are a lot of reasons you can use para magdecide ang court to grant the adoption kahit walang consent ng biological father.. reasons such as:

1) Mas makakabuti sa bata na lumaki sa isang stable family environment
2) Makakabuti sa bata na maitaas ang status nya from illigitimate to legitimate child
3) Masamang tao or pabaya ang biological father nya
4) Inabandon na sya ng biological father nya

[rudy_arete]

rudy mind giving a ballpark figure of how much it would cost to adopt your own child? Tsaka ang detailed process kung maari. It would really be great info.

If you do decide to adopt your child, approximately po ay ang mga ito ang kelangan gastusan:

Professional/Lawyer’s Fees:
Acceptance Fee - 40,000
Appearance (x5) - 10,500
Conference (x3) - 4,500

Out of Pocket Expenses:
Court Filing Fees - 3,000
Publication Fees - 10,000
Misc. Expenses - 10,000

TOTAL = 78,000

(*Plus “Additional” expenses)

The services included dun sa Lawyer’s Acceptance Fee are to: gather all pertinent information, prepare and file all the necessary pleadings, litigate the petition until it is submitted for decision, give you relevant legal advice, and provide you timely updates.

The appearance fee is around 2,500 per hearing kung based sa Manila ang lawyer mo and dito rin sa Manila nakafile ang petition for adoption. So pwede sya tumaas pag nasa Manila ang Lawyer mo and outside Manila ang hearings. It could go as high as 4,000 to 5,000 per hearing.

Conference Fee ay para dun sa pagkikita nyo ng lawyer mo para pag usapan case mo. Bale you will be paying for his/her time. So kung kaibigan mo lawyer, baka pwede na discount to.

Pulication Fees would depend sa kung saang newspaper ipupublish ang petition. Normally po ay sa mga local provincial newspaper lang naman ito ipinapublish. Court requirement kasi na kelangan daw ipaalam sa public na ikaw ay may iaadopt na bata. Para kung sino daw ang may objection ay kelangan mag appear sa court. Ok na yung 10,000 pero minsan mas mahal pa pag napa assign ka sa pasosyal na newspaper.

Miscellaneous Expenses include facilitation, representation, transportation, courier, postage, notarization charges, photocopying, messengerial and other incidental expenses.

Yung “additional” expenses include personal mo gastos sa pag asiskaso ng case, “representation” expense pag kausap mo staff ng RTC, “per-diem” ng iba’t – ibang tao na makakausap mo na involved sa pag process ng case. Depende na po kung pano mo ibubudget. Conservatively, sabihin na nating roughly additional 40,000

In general syempre mas madali kung malalim bulsa mo and medyo may pang gastos ka talaga. But for those na medyo under budget but would want to settle the case for the child’s sake, I would advise you to get a good and kind lawyer. Good, dahil mataas naman ang probability na maipanalo nya ang case (based on his/her past family cases), Kind, dahil he/she will consider na di mo kaya magwaldas ng pera basta basta. Be honest with your lawyer. Meron naman dyan na di ka talaga tatagain and will find a way na medyo makatipid ka.

PROCESS:

I. Preparation/Documentation
At this stage, you’ll prepare all the needed documents. Pag-uusapan nyo ng lawyer everything na nangyari, nangyayari, pwede mangyari and kung ano gusto mo mangyari. Isasalaysay kasi sa petition mo kung bakit mo gusto iaddopt ang anak mo and kung ano mga grounds mo. Parang answer the essay question: “Why do you think the court should grant your petition for adoption?”

Discuss first on how will you go on with the case. Are you going to file the petition on the assumption na mag oobject ang biological father? If this is the case, you’ll need to gather physical evidences or witnesses to prove yung mga claims mo. (ex. witnesses na pabaya ang father, medical cert. Nung binugbog ang mother, walang trabaho ang father, maraming ibang babae, at lahat na ng bagay na di magandang magisnan ng bata)

If acknowledged ang bata nung biological father, mas maganda ang chance mo for the petition to be granted if you can get the biological father’s consent. Medyo mahirap ito dahil nakasaad sa consent na inaamin nya na mas makakabuti sa bata na sya ay iadopt na ng mother, pumapayag sya na iadopt na ng mother ang bata at isinusuko na nya ang lahat ng karapatan bilang isang ama.

Documentary requirements for case filing
1. Birth Certificate of the Child
2. Your Birth Certificate
3. Affidavit of Consent of the father*


II. Case Filing, Publication
The case will be filed by your lawyer kung saang court nyo napili ng lawyer mo (normally kung saang munisipyo or province ang base ng minor) Here, consider kung saan comfortable sa inyo ng lawyer mo. Maaaring madami kang kakilala sa RTC na pipilin mo. It helps kasi if you know a lot of staff, judges, or fiscals kung saan nakafile ang case mo. Normally kasi, pinag uusapan nila ang cases. So be carefull if it’s the other way around wherein yung kalaban mo ang madami kakilala sa RTC.

Your petition will be raffled kung sinong judge ang hahawak ng case. Dapat magaling ang lawyer mo to know kung ano klase judge naassign sa inyo. Mataray ba, mausisa ba, istrikto ba. Anticipate everything na pwede hingin ng judge.

Then your petition will be published sa local newspaper. Swerte ka kung informative lang yung ilalagay ng clerk of court wherein babanggitin lang pangalan mo, pangalan nung minor, and a declaration na inaadopt mo anak mo. Minsan kasi, they would publish everything na sinulat mo sa petition, including yung mga nakakalungkot na pangyayari kung bakit mo kailangan iadopt ang bata.


III. Home Study
After na mafile nyo ang petition for adoption, the clerk of court will inform the DSWD that they have to conduct a Home study and a Child Study for your case. There are instances na nagtatagal ang case dahil hindi agad nakakapag assign ang DSWD ng social worker who will conduct the study. But usually, the office of the clerk of court has a resident social worker. So ask your lawyer kung pwede nya pakiusapan ang judge at ang clerk of court to order its resident social worker to conduct the study para mapabilis.

During the home study, the social worker will research everything about you and the child’s father. Magiimbistiga sya sa mga kapitbahay nyo, sa trabaho at sa mga character references na ibibigay mo. You and the biological father will be interviewd and evaluated as well. So during the entire process of the home study, ituring mo nang santo ang social worker na mag eevaluate ng case mo. Treat her as if she’s the most important person in your life pag kasama mo sya. But syempre, be honest, it helps kung magiging kaibigan ka ng social worker dahil makikita naman nya na ikaw ay isang mabuting tao at wala kang hangad kundi mapabuti ang anak mo.

Documentary Requirements prior to home study (and after case filing)
1. Close up picture of you and the baby together
2. Picture of your home
3. Your latest Income Tax Return and other proof of financial capacity
4. Medical clearance issued by a duly licensed government physician showing that you are physically capable of caring for the child
5. Your NBI, Police and Court clearances
6. Affidavits of 3 disinterested persons attesting to your good moral character

Please note that the court or the Social Worker may require additional documents, depending on their evaluation of the above documents


IV. Litigation
There will be a case hearings. Super swerte ka pag maikli ang pagitan ng schedule ng mga hearings mo. (so choose din where to file the case, sa provice kasi mas konti ang cases per RTC branch compared sa Manila).

The judge will hear the merits of your petition. Your lawyer will present the evidences. Tatayo ka sa witness stand. Tatawagin din ang social worker sa witness stand at ipapaliwanag nya ang kanyang report. Madali kapag may consent nga ng biological father dahil maaaring hindi na sya ipatawag ng Judge. Masalimuot kapag nag object ang father dahil nga magsasagutan kayo sa korte. Dun mo na kelangan ilabas mga evidence mo on why you think he is a bad father.

This is the longest part so be prepared for everything. Stressful ang stage na to but continue praying and always anticipate kung ano pwede gawin nung biological father. Be careful din not to give him any reason na magagamit nya against you habang di pa tapos ang mga hearings. (ex. Magkasakit ang bata, maaksidente, maghiwalay kayo ng stepfather ng bata, etc.etc.)

V. Decision
Syempre, kung favorable ang result eh this is the best part. Your lawyer should advise you kung kelan dapat magpakain ka sa staff nung RTC branch para naman sipagin sila na asikasuhin yung papers mo. Kaibiganin mo na lahat ng pwede kaibiganin. Padala ng load kung wala sila telepono sa office. Etc. etc. Di mo naman kailangan suhulan but make them feel na you’ll appreciate it kung aasikasuhin na nila papers mo.

If lumabas na ang favorable decision wherein your petion for adoption is granted, Syempre magpa thanksgiving mass ka na. At wag na wag mo ko kalimutan ilibre. But you’ll need to wait for 15 days para makapag issue ang clerk of court ng certificate of finality. Paglabas kasi ng decision, the other party is given 15 days to file an appeal. Kung walang appeal, thanks giving mass ulit. And mas malaking salo salo na ito. Kung may appeal, syempre, dagdag sakit ng ulo and gastos sa lawyer.

VI. New Birth Certificate
If the certificate of finality is granted, you’ll need to process the issuance of the minor’s new Birth Certificate. He/she is now your legitimate child.


Final comments: during the entire process, from start to finish, try to be on top of everything. Your lawyer is there to handle the legal aspect of things but be sure to discuss your ideas with him/her. Based on my experience, it was helpful na updated and aware ako sa mga legalities because ikaw din naman kasi nakakakilala sa other biological parent nung bata. Meaning, you can decide better kung ano strategy dapat gawin since alam mo kung ano pwede gawin nung kabila or kung hangang saan lang sya.

Medyo napahaba. Sana po ay nakatulong ako.

[sweetwahm]

Aray ko naman sa expenses! Wait... that's 10,500 x 5 and 4,500 x 3?

Thanks for the details rudy! That Q was for my sister actually, since she's was [previously] a single mom. She's married now and although she and her husband have been talking about him adopting her daughter, no concrete moves have been made yet. Siguro overwhelmed lang sa kung saan dapat mag-umpisa. Tapos kelan lang nalaman na my sister has to adopt her own daughter as well pa pala.

Here's her situation though: She's married; her hubby wants to adopt her child. The father of the child is a no-show, although he can be located if needed. Do you think the biological father needs to give his "consent" as well? I'm thinking kung ganon, di medyo mahihirapan sister ko... palagay ko the guy will make things difficult for her. The biological dad doesn't appear on the birth cert, by the way.

[rudy_arete]

Aray ko naman sa expenses! Wait... that's 10,500 x 5 and 4,500 x 3?

Thanks for the details rudy! That Q was for my sister actually, since she's was [previously] a single mom. She's married now and although she and her husband have been talking about him adopting her daughter, no concrete moves have been made yet. Siguro overwhelmed lang sa kung saan dapat mag-umpisa. Tapos kelan lang nalaman na my sister has to adopt her own daughter as well pa pala.

Here's her situation though: She's married; her hubby wants to adopt her child. The father of the child is a no-show, although he can be located if needed. Do you think the biological father needs to give his "consent" as well? I'm thinking kung ganon, di medyo mahihirapan sister ko... palagay ko the guy will make things difficult for her. The biological dad doesn't appear on the birth cert, by the way.

no dear, that's 10,500 fee for five court appearances of the laywer, bale around 2,100 per appearance. But like what i've explained, pwede po ito magbago depende sa lawyer na nakuha nyo, sa layo kung saan kayo nag file ng petition for adoption and kung ilang beses talaga kelangan magpunta ng lawyer sa court to represent you. Ganun din po sa conference fee.

Yup, medyo masakit po sa budget kung hindi naman ganun kalalim bulsa mo. But syempre, future naman ng bata ang involved, it's gonna be worth the cost and trouble. Tsaka kung meron naman kayo lawyer friend, baka malaki bigay na discount sa acceptance fee.

If the biological father's name of the child doesn't appear on the child's birth certificate it means hindi acknowledged ang bata so dapat po ay N.A. ang nakalagay sa boxes for father's info sa birth certificate nung child. Tsaka surname ng mother ang ginagamit ng bata and wala sya middle name. In this case, I don't think you will need the father's consent since hindi naman nga nya acknowledged na anak nya yung child. The process should be easier. But to be sure, I'll confirm po sa mga lawyer consultant natin.

I would advise, if your sister and his husband do really intend to adopt your pamangkin, they should do it this early na para habang bata pa, macorrect na yung name na ginagamit ng bata. I mean the last stage po kasi nung adoption is to change the name of the child sa birth certificate. The child will then be legitimate and will use his/her stepdad's surname. So kesa naman dumami pa ang kelangan icorrect na papers after the adoption. (school records, passport, ID's, declaration of dependents, etc.)

[rudy_arete]

Hi rudy, mukahng marami kang alam ha. sige how about yung case ko I have been single mom twice and never married. Now, my question is, can my children get some support from their fathers even though we havent heard of them for a long time? I know where they live but I waited for them to volunteer to support their children to me but they seemed to have abandoned their obligations. Should I take this to legal action? should I waste my time para lang makakuha kaong financial support from them? payo naman o.

Nagbabasa lang po ako and constant consultation sa mga lawyers regarding my case. Anyway, about your case, definitely you or your children have the legal right to ask for support. Kung kasal po kayo nung biological father, the guy is obligated to support you and your children. Kung hindi naman po kayo kasal, the father is still required by law to support your children.

Since nabanggit mo naman po na you've already tried to communicate with the father and di ka naman pinansin, and you really want to demand support, you should take legal action. And like how it is described in the guidelines posted here by fellow pexters, you should find a good lawyer na tutulong sayo to send the demand letters and the petition for the request of support. If you can't afford to pay a laywer, meron naman po free legal assistance sa Public Attorney's Office sa lugar nyo. If you are qualified, you can avail of their services.

Other things to consider is yung acknowledgement nung mga anak mo. If their father signed at the back of their brith certificate, mas madali po to file the petition for support. But kung hindi po sya nakapirma and mag deny sya na sya ang tatay, pwede ka pa rin mag file ng petitoin but you will need to prove first that he is the father of your children.

[jiju_e]

Hi. Is this thread still alive? I have a question though. Can you file a kidnapping charge against the father of your child if he borrowed your kid and would not return the kid to you?

[rudy_arete]

Yes, the thread is alive and kicking…

With regards to your question, the basic rule is that: YES, the father can be charged with kidnapping if he did not return the Minor to the mother who has the legal custody of the child. Meaning, the primary consideration is that the mother should have the SOLE custody of the child.

Custody of a minor now depends on the following:

1)Are the parents of the minor married? If married, what is the status of their separation? (Legal separation, annulled?)

If the parents are married, and have not yet filed for legal separation or annulment, both parents still share custody of the minor children. But if the father suddenly had the urge to keep the children to himself, the mother can compel the father to return the child by filing a petition for Habeas Corpus. This is the fastest way to force the father to bring out the child since this is immediately executory. But the petition for custody should follow.

If parents are already legally separated or annulled, the court’s decision on the separation normally comes with the decision on child custody. Normally, the mother is awarded custody especially when children are below 7 yrs old but rules also say that the court will NOT grant custody to the offending parent. (Kung naghiwalay dahil may kabit ang father, custody is given to the mother. Kung established na mother ang may kabit or proven na pabaya ang mother, custody goes to the father)


2)If the parents were not married, the father may have visitation rights but mother should have custody since father doesn’t have parental authority. He can be charged with kidnapping for hiding the child from the mother. Unless otherwise the court granted the custody to the biological father based on serious reasons. Like in my case, since I was awarded custody of my daughter through adoption, I can now charge the mother of kidnapping if she suddenly decides to retake our child against my will. The adoption process severs the connection between the child and the biological parent who gave up the child for adoption.

[sweetwahm]

wow rudy, you really know this legal stuff. great research skills you got there. you oughta be a lawyer

anyway, thanks for that info. i relayed it to my sis and they will discuss it in detail. her daughter is school age already and in grade school. i for one am hoping na sana kumilos na sila dahil lumalaki na ang bata. hindi naman sa hindi gusto ng guy i-adopt ang stepdaughter nya, in fact sya pa nga ang nag open nito, pero may pagka slow din kasi eh. ganyan lang talaga sya -- pati na rin sis ko! -- medyo they tend to put off things.

rough estimate - how long does the process take, from filing right up to final adoption approval, and of course change of child's last name on all legal documents. i can only imagine the paperwork.

oh yeah... kulit na rin ako ng konti ha? From your lawyer friends, have you asked if the biological father still needs to give consent to the adoption? Like you, I have this feeling na hindi na kasi hindi naman nakalagay sa birth cert ang tatay eh. And I am hoping this is true. Pagnagkakaton kasi na kelangan ang consent nya or whatever, he will definitely NOT give it just to spite her. Or at least he will make things very, very difficult for my sis.

[attyatlast]

Yes, the thread is alive and kicking…

With regards to your question, the basic rule is that: YES, the father can be charged with kidnapping if he did not return the Minor to the mother who has the legal custody of the child. Meaning, the primary consideration is that the mother should have the SOLE custody of the child.

Custody of a minor now depends on the following:

1)Are the parents of the minor married? If married, what is the status of their separation? (Legal separation, annulled?)

If the parents are married, and have not yet filed for legal separation or annulment, both parents still share custody of the minor children. But if the father suddenly had the urge to keep the children to himself, the mother can compel the father to return the child by filing a petition for Habeas Corpus. This is the fastest way to force the father to bring out the child since this is immediately executory. But the petition for custody should follow.

If parents are already legally separated or annulled, the court’s decision on the separation normally comes with the decision on child custody. Normally, the mother is awarded custody especially when children are below 7 yrs old but rules also say that the court will NOT grant custody to the offending parent. (Kung naghiwalay dahil may kabit ang father, custody is given to the mother. Kung established na mother ang may kabit or proven na pabaya ang mother, custody goes to the father)


2)If the parents were not married, the father may have visitation rights but mother should have custody since father doesn’t have parental authority. He can be charged with kidnapping for hiding the child from the mother. Unless otherwise the court granted the custody to the biological father based on serious reasons. Like in my case, since I was awarded custody of my daughter through adoption, I can now charge the mother of kidnapping if she suddenly decides to retake our child against my will. The adoption process severs the connection between the child and the biological parent who gave up the child for adoption.

But see Article 211 of the Family Code which provides that, " The Father and Mother shall jointly excercise parental authority over the persons of their common children. In case of dis agreement, the father's decision prevails, unless there is a judicial order to the contrary.

In this proviso, the law never distinguish as to whether the child is legit or illegit.... Of course, it depends on how you present your argument!!! Nothing is clear cut in legal process....There will always be a gray area...You just need to exploit it!!!

[rudy_arete]

wow rudy, you really know this legal stuff. great research skills you got there. you oughta be a lawyer

anyway, thanks for that info. i relayed it to my sis and they will discuss it in detail. her daughter is school age already and in grade school. i for one am hoping na sana kumilos na sila dahil lumalaki na ang bata. hindi naman sa hindi gusto ng guy i-adopt ang stepdaughter nya, in fact sya pa nga ang nag open nito, pero may pagka slow din kasi eh. ganyan lang talaga sya -- pati na rin sis ko! -- medyo they tend to put off things.

rough estimate - how long does the process take, from filing right up to final adoption approval, and of course change of child's last name on all legal documents. i can only imagine the paperwork.

oh yeah... kulit na rin ako ng konti ha? From your lawyer friends, have you asked if the biological father still needs to give consent to the adoption? Like you, I have this feeling na hindi na kasi hindi naman nakalagay sa birth cert ang tatay eh. And I am hoping this is true. Pagnagkakaton kasi na kelangan ang consent nya or whatever, he will definitely NOT give it just to spite her. Or at least he will make things very, very difficult for my sis.

Thanks dear, I’m just trying to help. Sayang naman kasi yung mga nadiscuss namin nung lawyer ko when we did my case. Mahal ang bayad eh.. kaya share ko na rin.. Pero mas maganda nga sana if we have lawyers here who could give us their advise. Isusunod ko na ang law, tapusin ko muna itong phd.

I’ve posted the rough estimates nung adoption costs sa taas (3rd entry). Pakitingnan na lang po. Andun na rin yung litany nung actual process na dinaanan ko. As I’ve mentioned, the duration will depend on several factors like kung saan nyo file yung petition and kung kanino judge maaasign ang case nyo. But put it roughly at one year. Medyo ok na po yung one year from filing to finish.

Don’t be intimidated by the required paperwork. Your lawyer naman is supposed to handle those. With regards to the consent, ang nasa rules po kasi is that the consent of the other biological parent is necessary if the biological parent's whereabouts is known. So it is implied that hindi kailangan ng consent nya since hindi nga inacknowledge in the first place (or sinong ama ang hahanapin eh wala nga kinikilalang ama ang bata).

If your sis and her husband do have the plans to adopt your niece, encourage her to do so para magamit na nung bata yung new surname nya sa lahat ng legal papers.

[rudy_arete]

But see Article 211 of the Family Code which provides that, " The Father and Mother shall jointly excercise parental authority over the persons of their common children. In case of dis agreement, the father's decision prevails, unless there is a judicial order to the contrary.

In this proviso, the law never distinguish as to whether the child is legit or illegit.... Of course, it depends on how you present your argument!!! Nothing is clear cut in legal process....There will always be a gray area...You just need to exploit it!!!

Thank you Attorney At Last for your comment. Yes, you are right that there are a lot gray areas in our judicial process. Kaya nga nakakabigat ng pakiramdam to know parents who are deprived of their rights just because they are unaware of the law and they can’t afford to pay the services of a good lawyer. And for those naman who can afford, they do know nga how to exploit such gray areas. Result is an expensive and painful court litigation for both parties and ultimately the children.

I have seen Article 211 of the Family Code when I was reviewing about my case before. And as discussed by my lawyer, the presumption of joint parental authority enunciated by Article 211 is that the husband the wife are married and are living together.

While it is true that the law did not distinguish under said article whether the child is legitimate or illegitimate, said article should be reconciled with Article 176 of the same Family Code, which says that “Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code.”

Art 211 is thus the general rule while Art 176 is one among the exceptions granted by law where one spouse may be granted sole parental authority over a child

This is so far what we know, please do inform us if there is a new jurisprudence which I may need to read.

[jiju_e]

thank you for the reply re kidnapping =)

another question, what if the biological father acknowledged the kid in the birth certificate but failed to give out financial, moral and physical support to the kid, can I request or file a new birth certificate minus his name? Thanks.

[attyatlast]

Thank you Attorney At Last for your comment. Yes, you are right that there are a lot gray areas in our judicial process. Kaya nga nakakabigat ng pakiramdam to know parents who are deprived of their rights just because they are unaware of the law and they can’t afford to pay the services of a good lawyer. And for those naman who can afford, they do know nga how to exploit such gray areas. Result is an expensive and painful court litigation for both parties and ultimately the children.

I have seen Article 211 of the Family Code when I was reviewing about my case before. And as discussed by my lawyer, the presumption of joint parental authority enunciated by Article 211 is that the husband the wife are married and are living together.

While it is true that the law did not distinguish under said article whether the child is legitimate or illegitimate, said article should be reconciled with Article 176 of the same Family Code, which says that “Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code.”

Art 211 is thus the general rule while Art 176 is one among the exceptions granted by law where one spouse may be granted sole parental authority over a child

This is so far what we know, please do inform us if there is a new jurisprudence which I may need to read.

Article 176 did not include the word "exclusively" in its phraseology. If the legislative intent really goes for exclusive parental authority to the mother then the legislator should have placed the word "exclusively" immediately preceeding the phrase "under the parental authority of the mother"...I suggest you read the book of Prof. Mel Sta. Maria of the Ateneo Law School as an addition to your research materials..It is called Persons and Family Relations Book....This is the bible of students of Persons and Family Law in every law school...Sir Mel ...Libreng advertisement to ah!!!hehehehe

[rudy_arete]

thank you for the reply re kidnapping =)

another question, what if the biological father acknowledged the kid in the birth certificate but failed to give out financial, moral and physical support to the kid, can I request or file a new birth certificate minus his name? Thanks.

If the biological father did fail to provide finanical support, why not force him to do so. You would be fighting for your child's right naman eh.. The process was extensively discussed by one of our dear PEXter in the single parents' thread. For easier reference, i'm posting her comments here as well. I hope she wont mind.

helo there...

im singlemom (26yrs.old)of a 4months old baby boy..

i just wanna share this...


How to File for Child Support in the Philippines



For single moms who wish to obtain child support from the fathers of their children. It will sound easy, but I have to remind you that this is an emotional battle, not just financial. You will have to face the man, who has not only broken your heart but also left you in a monetary rut. It will be painful for you, but you have to do this for you and your children.

1. Find a lawyer specializing in family law– Private lawyers are very costly, but I find that they give better advice and walk you through all the steps in filing for a child support. However, if you cannot afford one, you can go to your municipal hall and consult with a public defendant, who probably has a lot of experience dealing with these cases daily. But in my opinion, it is always best to pay for a private lawyer for your first and/or second consultation, and when you have filed your case, you can ask the court for a public defendant.

2. Send the father of your child a demand letter – Send as many as you can through registered mail. Send it to his home address, billing address, business address, parent’s address, and siblings’ addresses or even at his friends’ address; just to make sure that he receives one and he will not have any reason not to contact you. There are two possible outcomes from sending a demand letter with your lawyer’s letterhead.
1. He will ignore the letter of support, not contact you and then you can proceed to the next step.
2. The child’s father will contact you and the two of you can come to an agreement, with or without your lawyers present. Draft a letter of support, indicating the terms both of you have agreed on, have him sign it and notarize it.

Note: The letter of support is important as it is a binding contract between you and the father of your child. It has to be a detailed draft of what your child will need up to the time he reaches maturity, usually until he reaches the age of 21 or up to the time he finishes college. List all possible scenarios where in you will need financial assistance from him. Just to be on the safe side, ask your lawyer to make one for you. If he fails to give you the monthly child support you agreed on, slap the letter of support on his face.

3. Prepare Documents
1. Birth certificates or baptismal certificates of your children
2. A narration which consists of your whole relationship with the father until you decided to consult a lawyer. Be specific, it will take time to write the story, but you have to do it.

4. Ask your lawyer to draft a petition so you can file a case – Once you have the petition in your hands, you can now file a criminal or civil case. Your lawyer will advise you on what and where to file it, in most cases it will be in your area of residence.

Fees:

1. Civil Case (ex. Abandonment)– filing will cost P2,500

2. Criminal Case (ex. Violence against women and their children, RA 9262)– free of charge

3. Per court hearing or judge’s appearance – P1,500 each

5. Subpoenas will be sent – A hearing will be set. You and the father of your child will be notified of its date through subpoenas. There are some cases wherein the father contacts you upon receiving a summons from the court, especially once they see that they are being charged with a criminal case. This is the perfect time for you to lay down your terms and have him sign a letter of support.

6. Court Hearing – Even if the father of your children does not attend the first hearing, it will proceed as the court will assign a lawyer to his case. This is also the perfect time to ask for immediate temporary financial assistance. This does not mean that the judge has already ruled on your case, it only means that you are asking for some financial help until the case is resolved. Usually, it may take up to 30 days, but the judge will ask the father of your child to pay!

7. Judge’s Decision – If the father’s child is still uncooperative and does not wish to come to make deal with you, or you do not like what he has to say and give; the judge will make the decision after all the sides have been heard. Typically, the judge will order (FORCE is a better word) the father to give! Usually, the amount will be automatically taken out of his monthly salary and deposited directly into your bank account...


If you consult with a private lawyer, they will most probably give you an amount for the whole case, about P10,000 to P15,000 but this does not include the court fees. Some lawyers don’t charge for the first consultation; but for those who do, they charge between P150 to 500 per visit, sometimes as much as P1,200 especially if you need affidavits or other such documents. If you just want to send out a demand letter, go to a Public Attorney (PAO) at your municipal or city hall. Public Defendants don’t charge for consultations!


Legal Support for the Child and R.A. 9262


Through all the family cases that we’ve handled, we’ve come to accept, without discounting the contrary, the sad fact that bad blood exists between the opposing parties (e.g., estranged spouses in annulment/ separation/ property cases, siblings and relatives in estate proceedings). In particular, with respect to custody-support cases over children, it’s easily understandable that custody is one of the more contested issues. However, the issue on child support should not be as complicated.

Well, it shouldn’t be as complicated, but reality makes it so.

Articles 195 and 196 of the Family Code enumerate the persons who are under obligation to support each other, thus: (1) The spouses; (2) Legitimate ascendants and descendants; (3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; (5) Legitimate brothers and sisters, whether of full or half-blood; and (6) Brothers and sisters not legitimately related, whether of the full or half-blood, except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant’s fault or negligence.

On the other hand, the amount of support should be in proportion to the resources or means of the giver and the necessities of the recipient, pursuant to Articles 194, 201 and 202 of the Family Code:

Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work.

Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient.

Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same.

If you’re a parent, it is safe to assume that you would want the best for your child and you wouldn’t hesitate to provide adequate support. However, it’s unfortunate that when it comes to support for the common children (whether legitimate or illegitimate), so many fathers still fail (or worse, simply refuse) to provide adequate support. Whatever the reason is, and regardless of whether or not these reasons are correct, the problem became pervasive, so much so that Congress saw it fit to “criminalize” (only against fathers) the withholding of support in certain instances. Not everyone knows that this is covered under Republic Act No. 9262, otherwise known as the “Anti-Violence Against Women and their Children Act of 2004“.

Not everyone also knows that R.A. 9262 provides for criminal sactions or penalties for failure to provide support or withholding custody, in certain cases. Well, now you know.


GODBLESS


LALABAN AKO PARA SA ANAK KO.....

But if you still think that changing your child's name would be in the best interest of your child since you can very well afford to raise your child comfortably, you can file for a petition for change of name. I'm not sure if the court will grant this based solely on the grounds of failure of the biological father to provide financial support. Plus the court might ask for the consent of the father allowing the change of name.

There are other mothers who have tried an "irregular" process of simply refiling the child's birth certificate without the father's name and under the pretense of late registration. Some said that they were able to get away with it. Most cases however is that the NSO recognizes only the first birth certificate of the child.

The only way to change the child's name that I'm comfortable with is legitimation. You or the child's stepfather will adopt your child. The process is longer and more expensive but always better. The change of name is the last stage of the adoption process as I've discussed in the first part of this thread.

Godbless. I hope I was able to provide you with some options.

[rudy_arete]

Article 176 did not include the word "exclusively" in its phraseology. If the legislative intent really goes for exclusive parental authority to the mother then the legislator should have placed the word "exclusively" immediately preceeding the phrase "under the parental authority of the mother"...I suggest you read the book of Prof. Mel Sta. Maria of the Ateneo Law School as an addition to your research materials..It is called Persons and Family Relations Book....This is the bible of students of Persons and Family Law in every law school...Sir Mel ...Libreng advertisement to ah!!!hehehehe

hehe.. The discussion is getting more technical for me. I'm not yet that equipped to comment when it comes to the details.
But for discussion purposes, I solicited the advise of the other Sinlge parents' free consultant. She explained that inserting the term “EXCLUSIVE” would be a mere surplusage since Art 176 already used the term ‘SHALL” which from basic statutory construction means MANDATORY. One can thus already surmise from the letters of the law itself that legislatures intends to grant SOLE PARENTAL AUTHORITY to the mother if a child is illegitimate regardless whether the father recognized the child or not, unless the court finds a compelling reason to deprive the mother of such authority.

This is a settled rule in this jurisdiction. The court reiterated such rule in the recent case of Briones vs. Miguel, et al. , G.R. No. 156343, October 18, 2004.


"Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 156343 October 18, 2004 JOEY D. BRIONES, petitioner, vs. MARICEL P. MIGUEL, FRANCISCA P. MIGUEL and LORETA P. MIGUEL, respondents. D E C I S I O N PANGANIBAN, J.: An illegitimate child is under the sole parental authority of the mother. In the exercise of that authority, she is entitled to keep the child in her company. The Court will not deprive her of custody, absent any imperative cause showing her unfitness to exercise such authority and care. … … "


Anyway, thanks for the comments. I'm learning a lot. And now more excited to go to lawschool. Baka makapag enroll ako ng wala sa oras.

[Faustina]

Question,

What if I want my son to use my surname instead? Gamit nya ngayon surname ng father nya. But we're not married. Gusto ko mapalitan birth cert para last name ko na lang gamitin nya.

What steps yung kailangan gawin?

And how much should I prepare?

Thanks in advance!

[rudy_arete]

Hi Faustina,
As I've explained to sweetwham and jiju_e in this thread, you can file for a simple petition for change of name but you have a slim chance that the court will grant this based merely on simple reasons such as you suddenly changed your mind and you no longer want your child to carry his father's surname. Plus the court might ask for the consent of the father allowing the change of name.

There are other single mothers who simply refiled their child's birth certificate without the father's name and under the pretense of late registration. This is illegal but some said that they were able to get away with it. In most cases however, the NSO will only recognize the first birth certificate of the child unless you've undergone the proper judicial process.

The best way to change the child's name is through adoption. You or the child's stepfather will adopt your child. You will say in your petition that your primary motivation to adopt you child is that you want to uplift his/her status from illegitimate to ligitimate child and you want to provide the child a more stable family environment. You could cite other reasons for as long as it will serve the best interest of the child. You will also need the biological father's consent to the adoption.

The process is longer and more expensive but always better. The change of name is the last stage of the adoption process as I've discussed in the first part of this thread. I've also discussed the processes and cost of the adoption in my third post in this thread.

[planggacious]

this thread is interesting. kudos, rudy, for starting this discussion. i'm a lawyer like attyatlast.

@ rudy: galing ng research mo. this only proves my belief that clients who study about their case are really the better clients sayang nga lang, you can't represent yourself. i encourage you to go to law school (abot ka pa sa UP LAE this november). mas masaya mag-aral pag feel mo talaga ang pag-a-abogado. i sense it in you... (naks.)

for everyone: i don't go online as much as i want, but if you have queries, PM me or email me at ayonsabatas@yahoo.com.ph. free legal advice habang kaya ko pa

[rudy_arete]

Thanks atty. planggacious.. yes, I intend to go to lawschool. Kaya lang demanding sa time pag sinimulan ko na ngayon. Mawawalan ako ng time sa princess ko. Mahirap pa for a single parent. Phd na lang muna, mas maluwag sa sched eh.. After this, next na ang law, bata pa naman ako eh. hehe.. Tsaka by that time, baka sakali may kapartner na mag alaga ng princess.

In the meantime, we are counting on kind lawyers like you to guide us. I can only go as far as my research but we still need your confirmation on critical issues.

Thank you for your support.