Dear Atty. Duran-Schulze,
Hello. I’m writing to you for advice for my domestic helper’s situation.
My domestic helper is from Isabela and she has been under our employment for the past 18 months in Malaysia. She has one son, 12 years old from legal marriage. But she and her husband have been separated for more than 6 years. The son has been in the care of her parents with mutually agreed visitation where the son stays with the husband on weekends only.
She has received no monetary support from the husband for the care of her son. As such she has worked overseas as a domestic helper to support the son.
Recently she received news that her son has been taken by the husband who brought a policeman to take the son away. This was done without her knowledge or consent and the whereabouts of the son were not made aware to any family members. After a few weeks of inquiring it was discovered her son was taken against his consent and kept captive in a different town and not allowed to contact anyone. He is also being kept away from school. My domestic helper’s father and friend went to see the son but were hindered by the husband.
She wants to know how to get her son back. Her husband has a history of extracting money from her. She is considering returning to the Philippines to look at ways to get her son back. How can she get sole custody? Should she file a police report of kidnapping against the husband?
The marriage was not annuled either.
We would appreciate your advice.
Thank you so much.
Since your domestic helper and her husband are already separated (separated in fact), the applicable law is Article 213 of the Family Code.
Article 213 provides that “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.” The custody of a child above seven years of age shall belong to the parent chosen by the child concerned.
The domestic helper/mother of the child has the following options to handle the situation, and may file any or all of the following cases:
A. Petition for rightful custody of the minor, so the mother can ask for the sole custody of her minor child
B. Petition for the issuance of a writ of habeas corpus involving minors, in order to take back her minor child from the father or whoever has the current physical custody of the minor child
C. Criminal case for Illegal detention
In both (a) and (b) petitions, the Rule A.M. No. 03-04-04-SC applies. Both cases need to be filed before the family court of the province or city where the petitioner resides or where the minor may be found. In (c), the case needs to be filed in the place where the taking of the minor child occured.
A. Petition for rightful custody of the minor
Under Section 14 of the said Rule, in awarding rightful custody of the minor, “the court shall consider the best interests of the minor and shall give paramount consideration to his/her material and moral welfare. The best interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his/her physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor.” The following will also be considered:
(a) Any extrajudicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contact with the non custodial parent on a regular basis, except when there is an existing threat or danger of physical, mental, sexual or emotional violence which endangers the safety and best interests of the minor;
(b) The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent;
(c) The health, safety and welfare of the minor;
(d) Any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minor, including anyone courting the parent;
(e) The nature and frequency of contact with both parents;
(f) Habitual use of alcohol, dangerous drugs or regulated substances;
(g) Marital misconduct;
(h) The most suitable physical, emotional, spiritual, psychological and educational environment for the holistic development and growth of the minor; and
(i) The preference of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit.
B. Petition for the issuance of a writ of habeas corpus
The purpose of the petition for the issuance of a writ of habeas corpus in cases involving minors is not limited to the production of the child before the court but also with the purpose of determining who has the rightful custody over the child.
The Court in Sombong v CA (G.R. No. 111876) provided the following requisites in granting of the writ: (1) that the petitioner has the right of custody over the minor; (2) that the rightful custody of the minor is being withheld from the petitioner by the respondents; and (3) that it is to the best interest of the minor concerned to be in the custody of petitioner and not that of the respondents.
The mother could argue that she has been unlawfully deprived of the custody of their minor child, and that the minor child’s best interest would be served if the minor child were in the custody of the mother.
C. Criminal case for Illegal detention
The mother of the minor child may likewise file a criminal case for illegal detention for the unlawful taking of her child and the latter’s deprivation of liberty. The elements of Kidnapping and Serious Illegal Detention under Article 267 of the Revised Penal Code, as amended, are:
(1) the offender is a private individual;
(2) he kidnaps or detains another or in any other manner deprives the latter of his liberty;
(3) the act of detention or kidnapping must be illegal; and
(4) in the commission of the offense, any of the following circumstances is present:
- (a) the kidnapping or detention lasts for more than three days; or
- (b) it is committed by simulating public authority; or
- (c) serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or
- (d) the person kidnapped or detained is a minor, female, or a public officer.
Prior to filing any of the options mentioned above, we would advise that the mother file a police blotter in order to report the incident. She must file it at the nearest police station where the incident happened, and must make sure that all the facts are indicated in the blotter report.
We hope we are able to answer your query. Please be informed that the foregoing legal opinion is based solely on the facts that you have provided us and our appreciation of the same. In case you need further assistance, our firm is open and ready to assist you. Thank you.