file:spcpro_part5.htm

V. CUSTODY OF MINORS

1. Jurisdiction

A petition for the custody of minors is also provided in Section 1, Rule 99
which provides for a petition for adoption. The petition for custody of
children is now within the exclusive original jurisdiction of Family Courts, as
provided in Sec. 5(b), Family Courts Act of 1997, or Rep. Act No. 8369.

2. Children Under Seven Years of Age

Under Article 213, second paragraph Family Code, no child under seven years
of age shall be separated from the mother, unless the court finds compelling
reasons to order otherwise. Under Pres.Decreee 603, Art. 17, the age of the
child was five years of age, reduced from the Civil Code provision of seven
years of age. Now it is back to seven years of age under the Family Code.

1. Formerly, under the Civil
Code, the provision was that no mother should be separated from her child under
seven years of age. 185The change
emphasizes the fact that it is the welfare of the child that is paramount.

2. This rule, however, is not
absolute. 186

 3. Child Abuse

Complaints on cases of unlawful acts committed against children under the
Child Abuse Act may be filed by (a) the offended party, (b) parents or
guardians, (c) ascendant or collateral relative within the third degree of
consanguinity; (d) officer, (e) social worker or representative of a licensed
child-caring institution; (f) officer or social worker of the DSWD; (g) barangay
chairman, or (g) at least three (3) concerned responsible citizens where the
violation occurred. 187

1. Protective Custody

The child shall be immediately placed under the
protective custody of the DSWD pursuant to Executive Order No. 56, series of
1986. Custody proceedings shall be in accordance with the provisions of
Presidential Decree No. 603. 188

2. Special Court
Proceedings

Cases involving violations of Rep. Act No. 8369
shall be heard in the chambers of the Family Court Judge. 189

3. When parents are
separated

The question as to the care, custody and control
of a child or children of parents who are divorced or separated, may be brought
before a Regional Trial Court by petition or as an incident to any other
proceeding.

3.1 Award of custody

After hearing, the court shall award the care,
custody and control of each child as will be for its best interest.

3.2 Choice of the child

The child who is over ten (10) years of age, may
choose which parent he/she prefers to live with, unless the parent so
chosen is unfit to take charge of the child by reason of moral depravity,
habitual drunkenness, incapacity, or poverty.

3.3 Other designations

If both parents are unfit, the court may
designate other persons or an institution to take charge of the child, such as
the paternal or maternal grandparent of the child, or his oldest brother or
sister, or some reputable and discreet person.

3.4 Support

The court may order either or both parents to
support or help support the child, irrespective of who may be its custodian.
The fact that the father has recognized the child may be a ground for ordering
him to give support, but not for giving him custody of the child. 190

3.5 Visitation or temporary custody

The court may permit the parent who is deprived
of care and custody to visit the child or have temporary custody thereof in an
order that is just and reasonable.

3.6 Appeal

Either parent may appeal from an order made in
accordance with the provisions of Section 6, Rule 99.

3.7 Rule of thumb

Once more, no child under seven years of age
shall be separated from its mother, unless the court finds that there are
compelling reasons therefor.

4.  Special Provisional Remedies

In cases of violence among immediate family members living in the same
domicile or household, the law now has special provisional remedies.

1.
Restraining Order

Family Court may issue a
restraining order against the accused or defendant upon a verified application
by the complainant or the victim for relief from abuse.

2.
Temporary Custody

The court may also order the
temporary custody of children in all civil actions for their custody.

3. Support Pendente
Lite

The court
may also order support pendente lite, including deduction from the
salary and use of conjugal home and other properties in all

5. Foster Care

Provisions on foster care are to be found in Articles 67 to 70, Presidential
Decree No. 603. Foster care is to be preferred to institutional care. No child
below nine (9) years of age shall be placed in an institution. 192

6.  Dependent, Abandoned Or Neglected Children

These types of children are defined in Presidential Decree No. 603, Art.
141. A verified petition for their involuntary commitment may be filed. 193

1. Involuntary
commitment

For various provisions on the procedure for
involuntary commitment, such as the contents of the petition, verification,
order to set time for hearing, summons, when not necessary, representation of
child, duty of fiscal, hearing, commitment of child, when child may stay in his
own home, termination of rights of parents, authority of person, agency or
institution, change of custody, refer to Articles 142-153, Presidential Decree
603.

2. Voluntary
commitment

Provisions on voluntary commitment which should
be in writing, legal custody, visitation, report, temporary custody of
children, prohibited acts, report of person or institution, refer to Articles
154 to 159, Presidential Decree 603.

3. Various other
provisions

Other significant provisions in Presidential
Decree No. 603 refer to:

Art. 159. Temporary Custody of Child

Art. 160. Prohibited Acts of Leaving an
Institution

Art. 161. Duty to Report Abandonment

Art. 162. Adoption of Dependent or Abandoned or
Neglected Child

Art. 163. Restoration of Child After Involuntary
Commitment

Art. 164. Restoration After Voluntary Commitment

Art. 165. Removal of Custody

Art. 166. Report of Maltreated or Abused Child

Art. 167. Freedom from Liability of Reporting
Person or Institution.

 4. Special Children

A child who appears to be mentally retarded,
physically handicapped, emotionally disturbed, or mentally ill, and needs
institutional care but his parents or guardians are opposed thereto, a petition
for commitment of the child may be filed. 194
Provisions on venue, contents of petition, order of hearing, disposition of
property or money of the committed child, children with cerebral palsy,
discharge of a child judicially committed, discharge of child voluntarily
committed, report on conduct of child, and related provisions, refer to
Articles 178 to 204, P.D. 603.