Family Law

Nimfa Cuesta Vilches

Family Law
Deals With Family Relations Such As Marriage / Paternity And Filiation / Adoption / Custody, Visitation / Support / Marital Property And Equitable Division / Dissolution Of Marriage/ Legal Separation/ Domestic Violence Petitions / Guardianship [Family Code (FC), Family Courts Act Of 1997, Supreme Court Rules]

Marriage
Marriage Special Contract Of Permanent Union Between Man And Woman Entered Into In Accordance With Law For Establishment Of Conjugal and Family Life [Art. 1, Family Code (FC)] / No Same Sex Marriage /, No Special Law Governing Sex Reassignment [Silverio Case, G.R. No. 174687, October 2007]

Requisites Of Marriage
Legal Capacity [Male-Female, 18 Years Of Age] / Consent Of Parties Freely Given In Front Of Solemnizing Authority / Authority Of Solemnizing Person Except In Good Faith Marriage / Marriage License Except In Marriages Without License/ Marriage Ceremony With Appearance Of Both Parties Before Solemnizing Officer

Marriage
Married Woman And Single Man Belonging To Jehovahs Witness Make A Declaration Of Pledging Faithfulness Conjugal Arrangement Not Penalized / Exempt From Law : Freedom Of Religion / No Administrative Liability [Estrada vs. Escritor, AM No. P02-1651, 22 June 2006]

Unmarried Woman With Child

If Father Of Child Unmarried, Woman Is Not Ordinarily Administratively Liable For Disgraceful, Immoral Conduct / No Law Penalizes Unmarried Mother By Reason Of Her Sexual Conduct, Proscribes Consensual Sexual Activity Between Two Unmarried Persons [AM No. P-07-2333, 19 December 2007]

Marriages Without License

Either Or Both Parties Are At Point Of Death, Valid Even If Ailing Party Survives/ Residence Of Party Far Without Means Of Transportation/ Among Muslims, Ethic Cultural Communities / Parties Lived Together As Husband And Wife At Least 5 Years Without Legal Impediment

Surname Of Married Woman Married Woman May Use: Her Maiden First Name And Surname, Add Her Husband s Surname/ Her Maiden s First Name And Husband s Surname/ Or Husband s Full Name But Prefixing A Word Indicating That She Is The Wife Or Mrs. [Art. 370, Civil Code(CC)]

Exercise of Profession Either Spouse May Exercise Any Legitimate Profession, Occupation, Business Or Activity Without Consent Of Other Who May Object Only On Valid, Serious And Moral Grounds/ Disagreement, Court Decides If Objection Proper, Benefit Accrued To Family [Art. 73, FC]

Family
Foundation Of Nation Is Basic Social Institution/ No Custom, Practice or Agreement Destructive Of Family Recognized/ Family Relations Are That Of Spouses, Parents-Children, AscendantDescendant, Brother-Sister /Family Efforts Toward A Compromise Required Before Filing Of Suit In Court [Arts. 149-151]

Foreign Divorce
No Divorce Law / Art. 15 Civil Code [CC] On Nationality Rule Filipinos Governed As To Status And Capacity By Philippine Law Wherever They Are / [Tenchavez vs. Escano, 15 SCRA 355Divorce Against Prohibitive Laws Under Art. 17 Of CC] / Validity Of Foreign Divorce Leads To Discrimination

Acquired By Filipinos - Void Against Public Policy, Except : By Alien Spouse [Art. 26, 2nd Par., FC] Or Former Filipinos [ Republic vs. Orbecido, G.R. 154380, 5 October 2005 ] But Alien At Time Of Divorce / Divorce Recognized Upon Proof Of [1] Foreign Law Allowing Divorce [2] Divorce Decree

[ Garcia vs. Recio, 366 SCRA 437 ] And Rule 39, Sec. 48, 1997 Rules Of Civil Procedure, With Proof That Divorce Decree Capacitates Foreigner Spouse To Remarry, But Legal Effects [ Custody Of Children ] Still Determined By Philippine Courts [ Roeh vs. Rodriguez, 404 SCRA 495]

SC Rule On Declaration Of Nullity / Annulment Of Marriage [15 March 2003 ] Family Code [FC] :
1. Article 35 ( Below 18 / No Authority Of Solemnizing Officer / No License / Bigamous Or Polygamous / Mistake Of Identity / Failure To Register With LCR, Registry Of Property

Bigamy Issues : A Party Contracts A Void Marriage But Not Declared Null And Void And Remarries - Bigamy [Bobis vs. Bobis, 336 SCRA 747, Manuel vs. People, GR 165842, 29 November 2005] / [Morigo vs. People, GR 145226, 6 February 2004] The 1st Marriage Had No Marriage Ceremony, No Bigamy As 1st One Not Even Ostensibly Valid [Art. 2 (3), FC]

2. Article 36 Marriage Contracted By Any Party Who At Time Of Its Celebration Was Psychologically Incapacitated To Comply With Essential Marital Obligations Even If Incapacity Became Manifest Only After Solemnization / No Less Than A Mental One, Not Physical [Santos vs. CA]

Reasons For Article 36

New Code Of Canon Law [1983] Provides For Same Ground / Parties With ChurchAnnulled Marriages Are Given Same Remedy In Civil Courts / Additional Remedy Where Marriage Exists In Name Only Due To Inability To Perform Marital Obligations

Essential Marital Obligations [FC Provisions ]

Husband And Wife Are Obliged To Live Together; Observe Mutual Love, Respect, Fidelity; Render Mutual Help And Support [Article 68] / Husband, Wife Shall Fix The Family Domicile [Article 69] /

Spouses Are Jointly Responsible For Support Of Family [ Article 70 ] / Management Of The Household [Article 71] / Exercise Parental Authority, Responsibility Including Caring For And Rearing Of Children And Development Of Their Moral, Physical,

Mental Well-Being [Article 209] / Parental Authority Not Renounced [ Article 210] / Father, Mother Exercise Joint Parental Authority Over Children [Article 211] / Mother, Father Exercise Joint Legal Guardianship Of Person And Property Of Child [Article 225]

Failure / Inability Of Any Party To Discharge Essential Marital Obligations - Petition For Declaration Of Absolute Nullity Of Marriage May Be Filed But Solely By The Husband Or Wife [Section 2 (a), Supreme Court Rule On Declaration Of Absolute Nullity Of A Void Marriage [7 March 2003]

Bigamy Is Committed Even If Second Marriage Declared Null And Void Based On Psychological Incapacity Because Although Void Ab Initio, Still Produces Legal Consequences Such As Bigamy [ Tenebro Case, 18 February 2004 ]

Commonly Administered Tests In PI : Stanford

Binet Test : 4th Edition: [Verbal Reasoning, ShortTerm Memory] / NeuroPsycological Testing: [ Psychological Disorders] / Objective Personality Test: [ Feelings, Attitudes, Behavior] / Projective Personality Test: [Persons Psyche- Style Of Perception]

Interpretation In PI Confined To Most Serious Cases Of Personality Disorder And Adherence To Molina Guidelines [Santos, 204 SCRA 20, Bier vs. Bier GR No. 173294, 27 February 2008] Procreation Essential Marital Obligation, Prolonged Refusal To Procreate Is Psychological Incapacity [Chi Ming Choi, 266 SCRA 325]

Even The Psychologically Incapacitated Spouse Can File The Petition And Both May Be Found To Be Psychologically Incapacitated [Chi Ming Choi]

No Psychological Incapacity In Following Cases :

Wifes Refusal To Return Home From US And Failure

To Communicate With Husband [Santos] Alcoholism / Sexual Infidelity / Abandonment By Husband [Hernandez vs. CA, 320 SCRA 76] Failure To Provide Support To Family / Physical Abuse / Abandonment [Marcos, 343 SCRA 755]

Emotionally Immature / Irresponsible / Alcoholic / Fugitive From Justice [Dagdag, 351 SCRA 425] Irreconcilable Differences And Conflicting Personalities [ Choa vs. Choa, 392 SCRA 641]

Flagrant Promiscuity, Psychologists Report That Respondent Suffering From Social Personality Disorder Exhibited By Blatant Display Of Infidelity [Dedel vs. CA, 421 SCRA 461, Citing Decision In Santos vs. CA Case] / ChainSmoking, Habitual Alcoholism, Abandonment, Failure To Meet Marital Duties [Bier vs. Bier]

Unhappy Marital Relationship [Pesca, 356 SCRA 588] Married Couple Drifting Apart Becoming Strangers, Falling Out Of Love For Spouse [Siayngo, G.R. 158896, 27 October 2004] Abandonment Of Wife And Child [Hamano, G.R. 149498, 20 May 2004]

Failed, Unsatisfactory Marriage - Not Null & Void, Other Remedies LS, Etc. / No Hope Of Reconciliation, Habitual Alcoholism, Sexual Infidelity, Perversion, Abandonment Not Psychological Incapacity [ Amy Perez-Ferraris vs. Brix Ferraris, G.R. 162368, 17 July 2006 ]

Wifes Aberrant Behavior Remained Unchanged Continued To Lie [Earlier Concealed Birth Of Illegitimate Son/ Alleged Attempted Rape On Her By Brother-In-Law / Graduate Of Psychology/ Singer/ Rich] : Psychological Incapacity [Antonio vs. Reyes, GR No. 155800, 10 March 2006]

Barcelona vs. CA, 412 SCRA 41 [2003] New Rules Mean No Need To Allege Root Cause Of Psychological Incapacity Mallion vs. Alcantara, G.R. 141528, 31 October 2006, Not Pleading Other Causes Of Nullity, Barred By Res Judicata

Property Regime Nullified Under Article 36: CoOwnership [ Valdes, 260 SCRA 221 ] / Acts Of Psychological Incapacity Not Grounds For Moral Damages / Beyond Control Due To Innate Inability To Comply With Marital Obligations [Buenaventura, G.R. 127449, 31 March 2005]

Declaration Of Nullity Under 3] Article 37 Incestuous Marriage Between Parties Whether Relationship Is Legitimate / Illegitimate : A] Between Ascendants , Descendants Of Any Degree B] Between Brothers And Sisters, Full Or Half Blood

4] Article 38 Marriage Against Public Policy [9] Collateral Blood Relatives / Step Parent, Step Child / Parent - In- Law, Child In Law / Adopting Parent , Adopted / Surviving Spouse Adopter , Adopted / Surviving Spouse Of Adopted , Adopter / Adopted Child ,

Legitimate Child Of Adopter / Adopted Children / Intent To Marry Kills Spouse 5] Article 45 [Annulment] [6] Voidable- Over 18, Below 21 Without Consent / Unsound Mind / Consent By Fraud [ Prior Conviction / Concealment Of Pregnancy By Wife / STD / Drug, Alcohol

Addiction / Consent By Force, Intimidation , Undue Influence / Physically Incapable To Consummate Marriage / Afflicted With STD / Parties : Only Husband, Wife May File With FC / Does Not Prescribe Art. 36 : Allege Complete Facts Of Psychological Incapacity Of One Or Both

Parties To Comply With Essential Marital Obligations At Time Of Celebration Even If Such Became Manifest After / Allege Physical Manifestation, If Any / Need Not Allege Expert Opinion In The Initiatory Petition Summons : Can Be Served By Publication

No Motion To Dismiss Except For Lack Of Jurisdiction / Answer Verified Personally By Respondent Not Counsel Or Attorney - In Fact / No Declaration Of Default If No Answer Is Filed Court Social Worker : Submits Study Report 3 Days Before Pre - Trial Conference

Public Prosecutor : Investigate, Report Within 1 Month From Issuance Of Order / Collusion : Basis, Parties Comment / Hearing / Court Convinced Of Collusion, Dismiss Petition / Appear At PTC, Investigate Collusion If Respondent Who Answered But Failed To Appear / Collusion -

Appear In Trial For State To Prevent Suppression, Fabrication Of Evidence 6 Prohibited Compromises : Civil Status / Validity Of Marriage / Ground For Legal Separation / Future Support / Jurisdiction Of Court / Future Legitime / Trial : Personally By Judge

Not Ex Parte, By Commissioner / Memoranda : Office Of Solicitor General [OSG] Files If Petition Of Significant Interest To State / Appeal : Aggrieved Party / OSG / Decree : After Registration, Publication : Best Evidence Death Of Party: Before EntryClosed, Terminated / After EntryBinding On Parties And Their Successors In - Interest

Article 41, Family Code : Declaration Of Presumptive Death - Generally Such

Petition Is Not Required As The Presumption Arises From The Law [ Arts. 390-91, CC, 7 Years / 10 To Open Succession / 5 Years If Disappeared At Age 75 / If Risk Of Death Is High, As A Rule, Only 4 Years Absence]

But Is Mandatorily Required Under Art. 41, Family Code, For Present Spouse To Have Capacity To Remarry / Summary Proceeding / Absentee Presumed Dead 4 Consecutive Years Or 2 Years Where Danger Of Death High [Art. 391, Civil Code- Vessel Lost, Armed Forces Taken Part In War, Missing For 4 Years, Etc.]

Petition Is Based On WellFounded Belief Of Present Spouse Of The Death Of Absent Spouse To Be Exempt From Adultery, Concubinage, Bigamy When Contracted Subsequent Marriage / Affidavit Of Reappearance Filed By Any Interested Party Or The 2nd Marriage Protected

Property Relations Of Husband And Wife

1] Absolute Community Of Property - All Property Owned By Spouses At Time Of Celebration Of Marriage Or Those Acquired Thereafter / The Administration, Enjoyment Belongs To Both Spouses Jointly/ In Case Of Disagreement - Husband s

Decision Prevails Subject To Recourse To Court By Wife [Art. 96] / Absolute Community Of Property [ACP] Governs When There Is No Agreed Regime Before The Marriage/ Governed By Rules On Co-Ownership [Each Is Owner Of Share, No Mutual Agency/Can Have Property Sold With Consent Of Co-Owners]

2] Conjugal Partnership Of Gains Husband, Wife Place In Common Fund Proceeds, Profits, Fruits, Income From Separate Properties And Those Acquired By Either Or Them Through Efforts Or By Chance/ Governed By Rules Of Partnership [Each Partner Also An Agent Who Cannot Claim Partition But Have Property Sold First, On Dissolution, Proceeds Divided]

3] Complete Separation Of Property - Each Spouse Shall Own, Dispose Of, Possess, Administer And Enjoy His/Her Separate Estate Without Need Of Consent Of the Other/ To Each Belong Earning/Both Bear Family Expenses In Proportion To Their Income

4] Other Regimes Under Article 75, FC] When Man And Woman Capacitated To Marry Each Other Live Exclusively With Each Other As Husband And Wife Without Benefit Of Marriage Or Void Marriage, Salaries And Wages Are Owned By Them In Equal Shares/ Co-ownership Rules Govern

Property Regime Nullified Under Article 36 : CoOwnership [ Valdes, 260 SCRA 221 ] / Acts Of Psychological Incapacity Not Grounds For Moral Damages Beyond Control Due To Innate Inability To Comply With Marital Obligations [Buenaventura vs. CA, G.R. 127449, 31 March 2005]

Donation Propter Nuptias Donations Made In Consideration Of The Marriage, In Favor Of One Or Both Of Prospective Spouses Executed Before The Marriage Not More Than 1/5 Of Present Property Unless Have Agreed On An Absolute Community Of Property/ No Donation During Marriage Except Moderate Gifts On Occasion Of Family Rejoicing

Presumption Of Conjugality Arises As Long As Property Acquired During Marriage/ Not Necessary That Property Acquired With Funds Of Partnership Or It Appears How Property Was Acquired / Benefit To The Family Must Be Direct And Not Only A Spin-Off Of The Loan Itself [Ching vs. CA, 423 SCRA 371]

FC Requires Written Authority Of Spouse Or Through Court Order To Dispose Of Conjugal Property, Otherwise Disposition Void [Abalos vs. Macatangay, 439 SCRA 649] / Presumption Of Conjugality Holds No Matter In Whose Name The Property Is Registered [Villanueva vs. CA, 427 SCRA 439

Art. 148, FC [ Only Actual Property Acquired Through Joint Contribution Of Money, Property, Industry Is Owned By Them In Common] Applies Where Partners Have Legal Impediment To Marry / Paramour Has No Right As Property Belongs To Conjugal Property With Legitimate Spouse [Joaquin vs. Reyes, 434 SCRA 260]

Registration Of Decree
Judgment Of Nullity, Annulment Of Marriage, Partition, Distribution Of Properties Of Spouses, Delivery Of Legitime Recorded In Civil Registry And Registry Of Property/ Marriage Of Former Spouses Without Compliance With Registration Requirements- Void [Arts. 52, 53]

Legal Separation (LS) [ Articles 55 - 67, FC ] May Be Filed Only By Husband Or Wife Within 5 Years From Occurrence Of Any Of 10 Causes : 1] Repeated Physical Violence, Grossly Abusive Conduct Against Petitioner (P), Common Child, Child Of P, 2] Physical Violence, Moral Pressure To Compel Petitioner Change Religious, Political

Affiliation, 3] Attempt Of Respondent To Corrupt Or Induce Petitioner Or Child To Engage In Prostitution, 4] Final Judgment Sentencing Respondent (R) To Imprisonment Of More Than 6 Years Even Pardoned, 5] Drug Addition Or Habitual Alcoholism Of Respondent, 6] Lesbianism Or Homosexuality Of Respondent,

8] Sexual Infidelity, Perversion Of Respondent, 9] Attempt On Life Of Petitioner By Respondent, 10] Abandonment Of Petitioner By Respondent Without Justifiable Cause For More Than 1 Year Contents / Form Of Legal Separation Petition : Allege The Complete

Facts / Children / Verified With Certificate Of Non Forum Shopping / 6 Copies : Non Compliance, Can Cause Dismissal Venue : Residence / Family Court Where Petitioner , Respondent Resides 6 Months Prior Filing / Non Resident : Where

Respondent Is Found At Election Of Petitioner / No Motion To Dismiss Except For Lack Of Jurisdiction / No Answer : No Default, Public Prosecutor Ordered To Investigate For Collusion, If There Is Collusion Dismiss Petition , If None

Set For Pre Trial Conference Mandatory With Trial Prosecutor 6 Compromises Prohibited : Civil Status, Ground For LS, Future Support, Etc. Trial Personally Conducted By Judge, Not Ex Parte Appeal : Aggrieved Party / Office Of Solicitor General

Registration , Publication Of Decree , It Then Is Best Evidence Of Legal Separation / Other Petitions May Be Filed In Same Family Court : Petition For Revocation Of Donation / Decree Of Reconciliation / Revival Of Property Regime , Adoption Of A New One *

Grounds To Deny Legal Separation: 1] Condoned Offense, Consented, 2] Connivance In Committing Offense, 3] Both Have Given Grounds (Come To Court With Clean Hands), 4] Collusion Between Parties To Obtain LS Decree, 5] Action Has Prescribed

Decree Of Reconciliation : 1] Spouses Reconciled, Joint Manifestation, Signed And Filed In Same Court, 2] Reconciliation Pending LS, Order Issued Immediately Terminating Proceedings, 3] After Rendition Of Judgment Granting LS But Before Decree, Parties State In

Manifestation To Revive Former Regime Of Property / New Regime, 4] Reconciled After Issuance Of LS Decree - Decree Of Reconciliation To Set Aside LS, Forfeiture Of Share Of Guilty Spouse Subsists Unless Revived, New Property Regime, 5] Comply With Revival Requirements, 6] Register Decree With LCR

Revival Of Property Regime / Adoption Of Another : 1] Verified Motion, 2] Specify Properties Contributed, Restored, Retained As Separate, Creditors, 3] Motion To Creditors, 4] Order Motion Published, 5] After Hearing And Granted, Order To Record Order In Registry Of Property Within 30 Days From Receipt, Show Compliance

SC Rule On Provisional Orders [ 15 March 2003 ] In Nullity / Annulment / LS

1. Order For Any Person To Stay Way From Home, School, Business Or Place Of Employment Of Child, Other Parent Or Any Other Party In Any Other Place Designated

By The Court 2. Refrain From Harassing, Intimidating, Or Threatening The Child Or Other Parent Or Other Person To Whom Custody Is Awarded 3. Refrain From Acts Of Commission Or

Omission Creating Risk To Health, Safety Or Welfare Of Child 4 . Permit A Parent / Person Entitled To Visitation / Separation Agreement Visit Child At Stated Time

5. Permit Designated Party To Enter Residence At A Specified Period To Take Personal Belongings Not Contested In FC 6. Comply Other Orders For Protection Of Child *

Surname Of Woman After Nullity/Annulment If Wife Is Guilty Spouse, She Shall Resume Her Maiden Name And Surname, If Innocent, She May / She May Choose To Continue Using Husband s Surname Unless Court Decrees Otherwise Or The Husband Has Married Another Person

Parental Authority
The Father And Mother Shall Jointly Exercise Parental Authority Over The Persons Of Their Common Children, In Case Of Disagreement, The Father s Decision Shall Prevail Unless There Is A Court Order To The Contrary [Art. 211 FC]

Paternity, Filiation
Children Conceived Or Born During The Marriage Of The Parents Are Presumed Legitimate / Child Considered Legitimate Although The Mother Declares Against Its Legitimacy [Art. 167, FC] / Illegitimate Children May Use Father s Surname [RA 9255]

Action To Impugn Legitimacy Of A Child Brought Within 1 Year From Knowledge Of Birth/Action To Claim Legitimacy Within Lifetime, Transmitted To Heirs If Child Dies During Minority, Insanity/ Wife Pregnant By Artificial Insemination Without Authorization, Ratification Of Husband-No Adultery, No Sexual Intercourse With Another Man

SC Rule On DNA Evidence [15 October 2007] Probability Of Paternity W Value Below 99.9%, DNA Paternity Analysis Is Corroborative Evidence / Man Not Excluded, Other Party [ Mother, Child ] To Provide Other Proofs Man Is Biological Father [ DNA Result Only Becomes Part Of Proof ]

Adoption
Child? Below 18 Years Old At Time Of Filing Of Petition 4 Kinds Of Children : a) Foundling - Deserted Or Abandoned ; Whose Parent [P], Guardian [G] / Relatives Unknown ; Or Committed To Orphanage / Institution / With Unknown Facts Of Birth /

Parentage / And Registered As Foundling With LCR b) Abandoned - Deserted For 6 Months / Judicially Declared As Abandoned c) Dependent - Without Parent / Guardian / Custodian , And Dependent On The Public

d) Neglected - Child Whose Basic Needs Unattended By Parent, Guardian, Custodian Child Legally Available For Adoption - Voluntarily / Involuntarily Committed To DSWD / Duly Licensed Agency; Freed Of Parental Authority [PA] Of Biological Parents, Guardian / In Rescission, Freed Of PA Of Adopter

A. Domestic Adoption [RA 8552] : Filipino Child By Filipino Residing In Phil. / Alien With 3 Years Continuous Residence In Phil. / Adopter At Least 18 Years Of Age / 16 - Year Age Difference / Adopted Not > 18YO

Venue : Family Court Of Residence Of Adopter Residence : Persons Actual Stay In Philippines For 3 Continuous Years 3 Exceptions To Residency And Certificate Of Alien Qualifications : 1] Former Filipino Citizen Adopting A Relative Within

4th Degree By Blood / Affinity 2] Adopting A Child Of The Filipino Spouse 3] Married To Filipino Citizen Adopting Jointly With Spouse A Relative Within The 4th Degree Joint Adoption By Husband, Wife , Except : 1] One Spouse To Adopt

Legitimate Child Of The Other; 2] One Spouse To Adopt Legitimate Child Of Filipino Spouse 3] One Married To Filipino Citizen And To Adopt Jointly With Spouse A Relative Within 4th Degree Of Consanguinity Or Affinity Of The Filipino Spouse

4) Adopter Has Considered / Treated Child As His / Her Own Child If Petition Also Prays For Change of Name [3 Requisites] : 1] Registered Name Of Child 2] Aliases Of Child Known 3] Full Name Child Is Known

Simulation Of Birth Tampering Of Civil Registry To Make It Appear In Birth Records That Child Is Born To A Person Who Is Not Biological Mother Causing Child To Lose True Identity And Status [Child Abuse: Trafficking / Violation Of Adoption Law / Falsification]

If Petition Also Seeks Rectification, 4 Requisites : 1] Petition Also Prays To Rectify Birth Certificate ; 2] Simulation Prior To RA 8552 [ Rectification And Adoption Petition Filed Within 5 Years From March 1998 March 2003 ] ; 3] For The Best Interests [BIC] Of The Adoptee

Order Of Hearing : 1] Order For Publication 2] Court / LGU Or Child Placement / DSWD Social Worker [ SW ] Prepares, Submits Child And Home Study Reports Before Hearing 3] SW Counseling With Biological Parents , Submits Report Before Hearing

Discretionary Notice : OSG Prosecutor, DSWD, Biological Parents If Known / Mandatory Notice In Petition For Change Of Name / Petitioner And Adoptee Personally Appears / Testify Before The Judge / FC Verifies From Social Worker [SW] For Hasty Decisions / Inimical Stay Of Child In Own Home

Decree Of Adoption : Duties Of Clerk Of Court : 1] Issue Certificate Of Finality After 15 Days To Appeal ; 2] Book Of Adoption Duties Of LCR : 1] Annotate Original BC / Issue BC / Seal Original BC, Open Only On Order Of FC Granting Decree / Compliance To FC

Rescission Of Adoption : 5 Years From Attainment Of 18 YO / Only By Adoptee As Adoption Is To Best Interests Of Child / Grounds : Repeated Violence / Attempt On Life Of Child / Sexual Assault / Abandonment / Recourse Of Adopter : Disinheritance / Venue : Where Adoptee Resides / Rescission Granted ,

Effects : Parental Authority Of Parent Or DSWD Restored If Child Still Minor / Reciprocal Obligations Of Adopter , Adoptee Extinguished / Rights Of Succession Reverts To Status Prior To Adoption / Vested Rights Prior To Judicial Rescission Are Respected

/ Issue Order For Adopted To Use Name In Original Birth Certificate , Foundling Certificate / Order LCR To Cancel New, Reinstate Original Birth Certificate / Service Of Judgment : To Civil Registrar To Enter Rescission Decree, Submit Compliance To Court / SC Rule Supersedes Rule 99 Of The Rules Of Court

Use Of Surname Of Natural Mother As Middle Name Of Illegitimate Child Upon Adoption By Natural Father Is Not Prohibited / Liberal Construction Of Adoption Laws In Favor Of Adoption [ In Re Adoption Of Astorga Case, 31 March 2005 ]

Inter Country Adoption [RA 8043 ] Approved 7 June 1995: Adoption Of Filipino Children By Foreign Nationals, Filipinos Permanently Residing Abroad / 27 Years Old / 16 Years Difference / Adoptee Not > Than 15 Years Old / Venue: FC Where Child Resides, Is Found / Filed With InterCountry Adoption Board [ICAB]

Duties Of The Family Court: 1] Ascertain If The Petition Is Sufficient In Form And Substance ; 2] Determine If The Petition Is A Proper Case For Inter Country Adoption ; 3] Immediately Transmit Petition To ICAB For Appropriate Action*

SC Rule On Support [Arts. 194 - 210 FC]

A] Spousal Support : Rules 1] No Agreement - From The ACP / CPG ; 2] Period Of Time Court Deems Just On Standard Of Living During Marriage ; 3] Factors - Custodial Parent Of Child Cannot Find Outside

Employment / Time For Sufficient Education For Work / Duration Of Marriage / Factors : Comparative Resources / Needs , Obligations / Contribution To Marriage Such As Home Making, Child Care, Career Building Of Spouse / Age And

Health / Physical, Emotional Condition / Ability Of Spouse To Give Support / Other Factors; 4] Court Order For Deduction From Salary B. Child Support : From ACP / CPG / Of One, Both- Support , Maintenance And Education Proportionality Rule : As To

Resources And Means Of Giver , Needs Of Recipient Factors : Financial Resources Of Custodian, Non - Custodian Parent / Physical, Emotional Health Of Child / Standard Of Living The Child Has Been Accustomed To / Non-Monetary Contribution For Care Of Child

Solo Parents Welfare Act [RA 8972]

Solo Parent : Woman With Child Out Of Rape / Spouse Dead , Detained , Serving Sentence, With Mental, Physical Disability / In Legal Separation, Separation In Fact, Nullity, Annulment Of Marriage, Parent Given Custody / Abandoned For One Year

Unmarried Preferred To Keep, Rear Child / Solely Providing Parental Care, Support / Social Development And Welfare Services : Flexible Work Schedule, NonDiscrimination / Basic Education / Liberal Payment Of Low-Cost Housing / Medical Benefits In Government Retained Hospitals

SC Rule On Custody And Visitation [Art. 209-216 FC On Parental Authority]

Best Interests Of Child [BIC] Factors : Agreement / Desire And Ability To Foster Loving Relationship / Childs Health And Safety / History Of Child Or Spousal Abuse / Nature And Frequency Of Contact With Both Parents /

Habitual Use Of Alcohol, Regulated Drugs / Most Suitable Environment / Child Of Sufficient Discernment > 7 Has Preference Provisional Custody - Order Of Preference : Parents Jointly / Either, Choice Of Child Above 7 / Surviving Grandparent If Several - Chosen By Child

Over 7 / Eldest Brother , Sister Over 21 Years Old / Actual Custodian / Any Person 3 - Day Notice For Person With Temporary Custody Transferring Residence / Taking Out Child, Parents Visitation Rights Should Not Be Prejudiced

Maternal Preference Rule

Article 213 Of The Family Code Provides That No Child Under Seven [7] Years Of Age Shall Be Separated From The Mother, Unless The Court Finds Compelling Reason To Do Otherwise

Visitation Rights : Parent Not Awarded Custody / Declared Unfit By Court Hold Departure Order [HDO] : Pending Nullity, Annulment / LS / No Child Brought Out Of Country Without Prior Court Order / On Motion, Ex Parte, Order Motu - Propio / Recalled For BIC Of Child And After Hearing*

SC Rule On Guardianship Of MINORS [ 1 May 2003 ]

On The Person , Property Of A Minor Child / Who Can File: Any Person , Minor 14 Years Old / Venue : Family Court [FC] Where Minor Actually Resides / Guardianship Petition Of Adult Or Incompetent Filed With RTC

4 Grounds Of Guardianship Petition : 1] Death, Continued Absence, Incapacity Of Parents / 2] Suspension, Deprivation, Termination Of Parental Authority / 3] Remarriage Of Surviving Unfit Parent / 4] Best Interest Of Child Requires

Qualifications : Moral, Physical, Mental Financial / Relationship Of Trust / Availability To Exercise Power / No Conflict Of Interest / Ability To Manage Property / Preference : Any Surviving Grandparent / Oldest Brother Or Sister /

/ Actual Custodian / Any Other Person Case Study Report : By Social Worker Who May Intervene If Petition To Be Denied / Notices / Hearing Bond : Determined By Court [Not Less Than 10%] For The Letters Of

Guardianship To Issue Conditions Of Bond : Inventory Within 3 Months From Letters Of Guardianship / Execute Duties Of Trust, Manage, Dispose Property For The Bests Interests Of Child, Provide Care, Custody, Education / Accounting

General Duties : Pay Just Debts / Settle All Accounts, Demand, Sue, Receive All Debts / Manage / Consent To Partition / Submit Inventory / Report New Property / Accounting After 1 Year From Appointment And Every Year Thereafter Removal : Insanity / Incapable To Discharge Functions

SC Rule On Custody Of Minors And Writ Of Habeas Corpus In Relation To Custody Of Minors [15 May 2003]

Filed In Province, City Where Petitioner Or Minor Found / Allege Material Operative Facts Consisting Deprivation Of Custody / No Motion To Dismiss Except Lack Of Jurisdiction / Case Study Of Social Worker / Mandatory Pre - Trial /

Mediation / Provisional Custody / Temporary Visitation Rights / Factors In Custody : Best Interests Of Child, Extra-judicial Agreement, Ability To Foster Loving Relationship, Health, Safety, Welfare Of Minor, History Of Child Or Spousal Abuse, Nature And

Frequency Of Contact With Parents, Use Of Alcohol Or Drugs, Marital Misconduct / Suitable Environment, Preference Of Minor Over 7 With Discernment / Hold Departure Order / Protection Orders Petition For Writ Of Habeas Corpus : Enforceable Within Jurisdiction Of FC

Maybe Filed With SC, CA To Be Valid Nationwide, Maybe Returnable To FC For Hearing And Decision Illegitimate Children Under Parental Authority Of Mother / Habeas Corpus Cannot Be Filed Against Mother [Briones vs. Miguel, 18 October 2004]

RA 9262 : Anti VAWC Law, Supreme Court Rule On VAWC FEATURES : Legal Focus On Victims / VAWC Now A Crime, Public Crime / Any Person May File : Offended Party / Parents / Guardian / Ascendant / Descendant / Collateral Relatives Within 4th Degree / DSWD / Law

Enforcement / Barangay Officials / Lawyers / Healthcare Professionals / 2 Citizens With Personal Knowledge Of Violence *With Penalties And Fines *Maximum Penalty When Woman , Minor Is Pregnant / Committed In The Presence Of Her Child

Protected Persons : Woman Who Is ANY PERSONS Wife / Former Wife / Or Any Woman Whom The Person Has Or Had Sexual , Dating Relations / Her Children Common With Offender , Legitimate , Illegitimate , Children Under Her Care

Broad Coverage Of The Law [Supreme Court Rule On VAWC] : Victim Is Within Or Without Family Abode / Including Parents, Brothers And Sisters, Ascendants, Descendants / Relatives By Blood Or Affinity Up To 6th Civil Degree / Includes Domestic Helpers

"Dating Relationship" Situation Where Parties Live As Husband And Wife Without Benefit Of Marriage / Romantically Involved Over Time, On A Continuing Basis During The Course Of The Relationship / Casual Acquaintance, Ordinary Socialization Between Two Individuals In Business, Social Context- Not Dating Relationship

Access To / Socialized Justice If Indigent Or In Immediate Necessity Due To Imminent Danger Or Threat - Petitioner Exempt From Docket Fees, Transcript Of Stenographic Notes [TSNs] / Entitled To Paid Leave Of Absence Of Up To 10 Days / Free Legal Aid By PAO For Protection Orders [POs]

Forms Of Violence 1] Physical Bodily Or Physical Harm / Maltreatment 2] Sexual Rape / Sexual Harassment / Acts Of Lasciviousness / Treat As Sex Object / Demeaning Sexual Remarks / Physical Attack Of Sexual Bodily Parts / Forcing To Watch

Obscenity And Indecent Acts / Prostituting Victim 3] Psychological Acts / Omissions Causing Or Likely To Cause Mental Or Emotional Suffering As Stalking / Ridicule / Humiliation / Repeated Verbal Abuse / Allowing

To Witness Violence Committed To Member Of Family / Damage To Property / Marital Infidelity / Injury To Pets [ Form Of Intimidation, Indirect Or Psychological Violence ] / Unlawful Deprivation Of Custody And Visitation Of Common Children /

Total Neglect, Abandonment 4] Economic Withdrawal Of Financial Support / Deprivation , Threat Of Withdrawal Of Resources, Right To Enjoy Property / Destroying Household Property / Controlling Ones Money

Protective Orders [ BPO / TPO / PPO ] : To Prevent

And Safeguard Victims From Further Acts Of Violence / Independent Of Other Case / Applies To Criminal Cases BPO : Barangay Protection Order Issued Same Day By Punong Barangay / Kagawad

Barangay Protection Order [ BPO : Physical, Threats ] : Ex - Parte Determination Same Day Filed / Effective For 15 Days / When Issued , Punong Barangay Or Kagawad Personally Serves Respondent Copy / * Parties May Be Accompanied By Non Lawyer At The Barangay

Residents Of Same Barangay / In Workplace Barangay Of Workplace / Violation Of BPO : 1st Level Court With Jurisdiction Of Barangay / Judgment Of Violation : 30 Days Imprisonment / Appealable To RTC [ Final ]

TPO / PPO : File In Any 1st / 2nd Level Court If No FC / Simultaneous In That Every Application For Protection Order Is Also Application For TPO And PPO / Even After Lapse Of Time From Commission [Battering Cycle / CSAAS] *Enforceable Anywhere In Phil.

Reliefs : Prohibit Acts Of Violence / Harassing, Annoying / Telephoning / Communicating Directly Or Indirectly / Removal Of Respondent From Residence Regardless Of Ownership / Law Enforcer To Accompany Respondent To Remove

Personal Effects / Stay Away From Victim At Distance Specified / Allow Victim To Use Automobile / Support / Temporary Custody Of Children / Prohibited Possession Of Firearm / Restitution Of Actual Damages / DSWD Shelter / Others

Perpetrator Removed From Home Owned By Him, Justified As TPO Condition As There Is No Court Adjudication As To Ownership, 30 Days Only [ No Deprivation Of Property, Due Process Violation ] / Woman Lets Perpetrator Barred By PO To Enter Home, Not Allowed, Must Be By Court Order / Remedy Is Petition For Modification Of PO

TPO : May Be Issued ExParte , On Date Of Filing [ Imminent Danger Of Violence Exists , About To Recur ] / PPO : Issued After Notice, Hearing / If No TPO Issued , Notice To Respondent For Opposition / Judges Cannot Influence Victims To Abandon Or Compromise TPO / PPO

Order Granting Temporary / Permanent Custody Precludes Offender To File Writ Of Habeas Corpus TPO / PPO Order : Clear And Specific / TPO Valid For 30 Days , Extendible For 30 Days Each Time * Violation : Imprisonment 6 Months / Fine P5T - P5OT

Implementation Of TPO/PPO Law Enforcer Duties : Respond ASAP To Call For Help Of Victim With Or Without TPO Or PPO / Confiscate Weapon Of Perpetrator / Escort Victim To Safe Place Or Hospital / Assist Victim To Remove Belongings / Arrest

Impose Other Conditions Such As No Use Of Drugs / Alcohol / Being With Armed Men Or Crime Groups / Contacting Victims Family * Conditions Of Bond Are Reviewed Each Hearing, As Often As Requested By Victim

Mutual Orders Of Protection [Court Cannot

Issue] Difficult For Police Officers To Enforce / Not Effective To Prevent Further Abuse As Leads To Confusion / Court Of Having Prior Jurisdiction Retains It [Magdaleno Pena vs. Marie Roxane Recto, G.R. No. 176403, 20 June 2007]
Property of ACA Nimfa Cuesta-Vilches

/ Exclusive To Women And Children / Not Countered By Provisional, Protection Order Under SC Rule As It Applies Only To Nullity, Annulment, LS Cases / Once Filed By Victim, Other Representatives Right To File Is Suspended [SC Rule On VAWC ]
Property of ACA Nimfa Cuesta-Vilches

Pre - Trial Conference : Victim Must Appear / Case NOT Referred For Mediation / Consider Issuing TPO / Simplify Issues / Cannot Compromise Civil Status, Future Support, Legitime, Jurisdiction , Validity Of Marriage / Expert Witness If Defense Is Battered Woman Syndrome [BWS]

No Family Efforts Under Family Code Are Required As VAWC Is A Crime / Independent Of Nullity / Annulment Of Marriage Petition / Legal Separation : No Cooling Off Period Of 6 Months If VAWC - Based / TPO Or PPO Decided At Mandatory Period

Trial : Apply Other Laws [ Anti Rape Law, RA 7610 ] And SC Rule On VAWC And Rule On Examination Of Child Witness Allowing Use Of Live - Link TV By Victim / Sexual Shield Rule / Presumption That Minor Victim Competent Witness / Alternative Ways To Testify

Battered Woman Syndrome [BWS] : Scientifically Defined Pattern Of Psychological , Behavioral Symptoms In Women Living In Battering Relationships Due To Cumulative Abuse No Criminal, Civil Liability / Justifying Circumstance Of Complete Self-Defense

3 Requirements : [A] Couple In Battering Cycle 2x, [2] Final Acute Battering Produced In Mind Of Battered Person Actual Fear Of Imminent Harm, [3] Time Of Killing Batterer Posed Probable Grave Harm [People vs. Genosa, G.R. 148220, 15 June 2005]

Prohibited Defenses : Influence Of Drugs / Alcohol Or Any Mild-Altering Substance / Bond To Keep Peace : For Person Against Whom Protection Order Issued- 2 Sufficient Sureties Undertaking That Such Person Will Not Commit Violence Sought to Be Prevented

Disposition :
VICTIMS - Redress Of Grievance / Entitlement To Social Services Especially Recovery From Trauma / Cycle Of Violence / Court Decides If Permanent Protection Order [ PPO ] Will Be Made Final, Executory

As To OFFENDER : Court Must Order DSWD To Provide Rehabilitative Counseling And Treatment For Constructive Ways [ Alternative Behavior ] Of Coping With Anger And Emotional Outbursts Other Than By Violence

And In Reforming Offenders Ways / When Necessary , Court May Refer The Offender To Psychiatric Treatment Or Actual Confinement In An Institution / Confidentiality Of Records / Proceedings And Privacy For Victim

Court Records : Under Court Seal / Permission Required To Examine Records / Publication Punishable By Contempt * Violation Of Privacy And Confidentiality : 1 Year Imprisonment And Fine Of Not More Than P500T

Role Of Judge, Family Court Duty-Holders In Promoting A Gender Sensitive Court Proceedings Is That Of A Gatekeeper / The Outcome Of Gender Bias In The Courts, Proceedings : Gendered Decisions = The Male Or Adult [Perpetrator]

Believed More = No Justice When Judges Themselves Stereotype People, It Is Dangerous As Judgment Is Made On The Basis Of Their Own Personal Beliefs About Men Or Rather Than On The Crimes Committed Against Women To Hold The Offenders Accountable*

THANK

YOU!