Family Code provisions on substitute parental authority of grandparents

 

Articles 214 and 216 of the Family Code speak clearly of situations when grandparents can exercise substitute parental authority over their grandchildren:

Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.

Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated:

(1) The surviving grandparent, as provided in Art. 214;

(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and

(3) The child’s actual custodian, over twenty-one years of age, unless unfit or disqualified.

Whenever the appointment of a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed.

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Family Code provisions on parental authority

Articles 209 to 233 of the Family Code are the governing laws on parental authority. Below are some articles relevant to our discussion:

Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.

Art. 210. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law.

Art. 211. The father and the 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 judicial order to the contrary.

Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority.

Art. 212. In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children.

Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

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What is a travel clearance for minors?

A travel clearance is a document issued by the DSWD to a Filipino child (below 18 years of age) traveling abroad alone or with someone other than his/her parents.

WHO NEEDS A TRAVEL CLEARANCE? A minor traveling alone to a foreign country ; A minor traveling to a foreign country accompanied by a person other than his or her parents.

WHO DOES NOT NEED TRAVEL CLEARANCE? All minors other than those cited above, for example:

A minor traveling to a foreign country with either parent or with his or her solo parent or legal guardian;

A minor traveling abroad whose parents are in the Foreign Service or living abroad or are immigrants, provided he/she is holding a valid pass such as a dependents visa/pass/identification card or permanent resident visa/pass/identification card which serves as proof that he/she is living with parents abroad and their travel does not constitute child trafficking. – See more at: http://www.dswd.gov.ph/faqs/travel-clearance-for-minors/#sthash.gTg2P4A3.dpuf

IS A MARRIED MINOR REQUIRED TO SECURE A TRAVEL CLEARANCE?

  • A minor, regardless of civil status, who is traveling abroad alone or with person/s other than his/her parent is required to secure a travel clearance.

WHAT ARE THE REQUIREMENTS IN SECURING A TRAVEL CLEARANCE?

A. For a minor traveling alone to a foreign country for the first time

  1. Duly accomplished application form
  2. Photocopy of the Birth Certificate OR the passport of the  minor
  3. A written consent of both parents or the solo parent or the legal guardian permitting the minor to travel alone to a foreign country
  4. As appropriate, a photocopy of the marriage certificate of the minor’s parents or a photocopy of the certificate of legal guardianship of the minor or in the case of solo parents, a photocopy of the solo parent identification card from the Municipal Social Welfare and Development Office or a photocopy of a certification from the Local Social Welfare and Development Office of being a solo parent or Tallaq or Faskh certification from the Shariah court or any Muslim Barangay or religious leader or in the case of an illegitimate minor, a certificate of no marriage (CENOMAR)* from the National Statistics Office (NSO) or in the case of a deceased parent, a photocopy of the death certificate

*Issuance of CENOMAR will take 1-5 days for cases of uncommon
surnames and 1-15  days for common surnames.
* Issuing office of CENOMAR is the National Statistics Office not the Local Civil Registrar.

5.    Two colored passport size photos of the minor taken within the last six (6) months

B. For a minor traveling for the first time with a person other than the parents or legal guardian

  1. Duly accomplished application form
  2. A photocopy of the birth certificate of minor
  3. A written consent of both parents or the solo parent or the legal guardian permitting the minor to travel to a foreign country with a specific person other than them
  4. As appropriate, a photocopy of the marriage certificate of the minor’s parents or a certificate of legal guardianship of the minor or in the case of solo parents, a solo parent identification card from the Municipal Social Welfare and Development Office or a certification from the Local Social Welfare and Development Office of being a solo parent or a court decree of separation, annulment or divorce, or Tallaq or Fasakh certification from the Shariah court or any muslim barangay or religious leader or in the case of an illegitimate minor, a certificate of no marriage  from the Philippine Statistics Office (formerly National Statistics Office or NSO) in the case of a deceased parent, a photocopy of the death certificate

* Issuance of CENOMAR will take 1-5 days for cases of
uncommon surnames and 1-15 days for common surnames

*Issuing office of CENOMAR is the National Statistics Office not the Local Civil
Registrar

5.    Two colored passport size photos of the minor taken within the last 6 months.
6.    Photocopy of the passport of the traveling companion

“The social worker may require additional documentary requirements during the assessment of the Travel Clearance application to make  sure that no child shall be trafficked and that the child’s best interest and welfare is ensured”

C. In case of illegitimate children who is traveling abroad accompanied by their biological father, they are still required to secure a travel clearance certificate as parental authority is vested only to the mother of the child, per Article 176 of the Family Code of the Philippines.

IS THERE A VALIDITY PERIOD FOR A TRAVEL CLEARANCE?

A DSWD travel clearance is valid for a period of one (1) year from the date of issuance and shall be valid for multiple travels within the validity period, provided the conditions under which the travel clearance was issued have not changed. If a change in condition occurs like a change in traveling companion, a new travel clearance must be obtained.

HOW MUCH IS THE PROCESSING FEE FOR A TRAVEL CLEARANCE ISSUED TO A MINOR?

The DSWD shall collect a processing fee for each travel clearance issued to minors traveling abroad under the following options:

  • Php 300.00 with validity of one (1) year.
  • Php 600.00 with validity of two (2) years.

WHERE CAN ONE FILE THE APPLICATION?

The application for travel clearance, together with the supporting documents required shall be submitted/filed at anyDSWD Field Office.

Application forms maybe obtained from any DSWD-Field Office or maybe downloaded from the website http://www.dswd.gov.ph. [click here to download application form in MS Word Format]

  • On the appointed date, go to the nearest DSWD Field (regional) office which processed your application to submit the original copy of your supporting documents and pay PhP300.00 per travel clearance certificate. The travel clearance certificate will be obtained thereafter.

– See more at: http://www.dswd.gov.ph/faqs/travel-clearance-for-minors/#sthash.gTg2P4A3.dpuf

Other frequently asked questions:

CAN A TRAVEL CLEARANCE BE ISSUED TO ILLEGITIMATE CHILDREN WHO ARE STILL APPLYING FOR THEIR VISA IN THE EMBASSY?

Illegitimate children are under the custody of the mother. If they will be traveling with the mother, they are not required to secure a travel clearance from the DSWD. If they are traveling with person other than the mother, they must secure a travel clearance.

IS A FAXED COPY OF THE PARENTAL CONSENT OF PARENTS RESIDING ABROAD ACCEPTABLE?

Yes, a faxed copy is acceptable. Likewise, a computer generated photo of minors and emailed documents are acceptable.

WHAT ARE THE REQUIREMENTS FOR ILLEGITIMATE CHILDREN ABANDONED BY THE MOTHER AND UNDER THE CUSTODY OF THE FATHER OR OTHER RELATIVES WHO WILL BE TRAVELING ALONE OR WITH THE FATHER OR OTHER RELATIVES?

Since the mother has the absolute parental authority over her illegitimate children the father would need to secure a Court Order vesting in him the parental authority over the illegitimate children. If a parental authority has been granted to the father, and the minor will be traveling with the father, he is not required to secure a travel clearance. If the minor will travel alone or with someone other than the father, he/she is required to secure a travel clearance. – See more at: http://www.dswd.gov.ph/faqs/travel-clearance-for-minors/#sthash.gTg2P4A3.dpuf

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What is the reason behind the visitorial right of an illegitimate father over his children?

In Silva v. Court of Appeals,[34] the Court sustained the visitorial right of an illegitimate father over his children in view of the constitutionally protected inherent and natural right of parents over their children.[35] Even when the parents are estranged and their affection for each other is lost, their attachment to and feeling for their offspring remain unchanged. Neither the law nor the courts allow this affinity to suffer, absent any real, grave or imminent threat to the well-being of the child.

See Briones vs Miguel, G.R. No. 156343. October 18, 2004

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Can Father of Illegitimate Child Obtain Custody when Mother is Abroad?

In one case (Briones vs. Miguel, GR 156343, Oct. 18, 2004), the Supreme Court upheld the illegitimate child’s mother’s custody even when the mother was working in Japan and eventually brought the child out of the country to live with her there.

True, there are exceptions to this rule but only when there are compelling reasons to deprive the mother of custody like for examples: neglect or abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable disease.

The Court does not agree to the idea that merely working abroad while entrusting the child to the care of the maternal grandparents or other immediate family member is one of the grounds for taking away custody from the mother.  The Court does not also consider it as abandonment or neglect as well.

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Can the Father Compel An Illegitimate Child To Use His Surname?

Republic Act 9255 allowing illegitimate children to use their father’s surnames opened the door to illegitimate mothers and fathers eager to let their children bear the father’s surname just like legitimate children.

The problem started when the implementing rules of RA 9255 made it mandatory for illegitimate children to use their father’s surnames upon the execution and registration of the Affidavit Allowing Children to Use the Surname of their Fathers (AUSF)  and the paternity acknowledgment appearing on the back portion of the birth certificate.

The main culprit is that RA 9255’s implementing rules used the word ‘shall’ instead of ‘may’ in giving effect to the law allowing children to use their father’s surnames. Today, that conflict has been resolved with the high court’s pronouncement that it was voiding that particular provision in RA 9255’s implementing rules insofar as it provides for the mandatory use of the illegitimate father’s surname. The Supreme Court reiterates that the illegitimate child has the choice of surname by which they wish to be known. (Grande vs. Antonio, GR No. 206248, February 18, 2014)

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What are the grounds for petition for guardianship?

When you think you have both the interest and the grounds you should file a petition for guardianship under A.M. No. 03-02-05-SC Rule on Guardianship of Minors. This Rule amended Rules 92 to 97 of the Rules of Court pertaining to guardianship. The essential provisions of the Rule are:

Sec. 4. Grounds of petition. – The grounds for the appointment of a guardian over the person or property, or both, of a minor are the following:

(a) death, continued absence, or incapacity of his parents;

(b) suspension, deprivation or termination of parental authority;

(c) remarriage of his surviving parent, if the latter Is found unsuitable to exercise parental authority; or

(d) when the best interests of the minor so require.

Sec. 5. Qualifications of guardians. – In appointing a guardian, the court shall consider the guardian’s:

(a) moral character;

(b) physical, mental and psychological condition;

(c) financial status;

(d) relationship of trust with the minor;

(e) availability to exercise the powers and duties of a guardian for the full period of the guardianship;

(f) lack of conflict of interest with the minor; and

(g) ability to manage the property of the minor.

Sec. 6. Who may be appointed guardian of the person or property, or both, of a minor. –

In default of parents or a court-appointed guardian, the court may appoint a guardian of the person or property, or both, of a minor, observing as far as practicable, the following order of preference:

(a) the surviving grandparent and In case several grandparents survive, the court shall select any of them taking Into account all relevant considerations;

(b) the oldest brother or sister of the minor over twenty-one years of age, unless unfit or disqualified;

(c) the actual custodian of the minor over twenty-one years of age, unless unfit or disqualified; and

(d) any other person, who in the sound discretion of the court, would serve the best interests of the minor.

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