Chapter 1-3
Chapter 1-3
Chapter 1-3
CHAPTER I
INTRODUCTION
Children are one of the vulnerable sectors in the society. Their rights are
recognized and upheld internationally for the reason provided under the Convention
on the Rights of the Child of 1989 thatbeing defined as any human being below the
age of eighteen years, unless under the law applicable to the child, majority is attained
earlier, a child is characterized by his youth and vulnerability and who has no means
to support himself.1 It was in 1924 when the rights of the children were formally
recognized with the adoption of the Declaration of Geneva. These rights are human
rights based on what the child needs to survive, grow and reach their full potentials. 2
In a summary of the rights of a child under the Convention on the Rights of the
Child of 1989, it is emphasized that Governments have the responsibility to make sure
1 Humanium, Together For Childrens Rights, Rights of the Child, Accessed on September 24, 2016,
Available from http://www.humanium.org/en/child-rights/
1
childrens rights are respected, protected and fulfilled. When countries ratify the
Convention, they agree to review their laws relating to children. This involves
assessing their social services, legal, health and educational systems, as well as
Governments are then obliged to take all necessary steps to ensure that the
minimum standards set by the Convention in these areas are being met. 3 But it is to
be noted that the Convention further stated that it does not give more authority to
protect and assist families in fulfilling their essential role as nurturers of children. 4
Article 27, paragraph 4 of the said Convention emphasizes the need to secure
the recovery of maintenance for the child from the parents or any other person having
3 http://www.unicef.org/crc/files/Rights_overview.pdf
4 Ibid.
2
The protection of the natural affection between parents and their children has
always been recognized as an inherent natural right just as much as the protection of
the right to life, liberty and pursuit of happiness, the government is formed. 6 Parents
have duties which are generally provided by law. This includes the duty to provide
adequate support.7
Cardinal rule it is that custody, care and the nurture of the child reside first in
the parents whose primary function and freedom include the preparation for
obligations the state can neither supply nor hinder. An arm that primarily maneuvers
the exercise of the protective measures as to the rights of the child is the parental
authority. Parental authority involves a mass of rights and obligation which the law
grants for the purpose of the childrens physical preservation and development, as
well as the cultivation of their intellect and the education of their hearts and senses. 8
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
5 Unicef, Convention on the Rights of the Child, Accessed on August 20, 2016, Available from
http://www.unicef.org/crc/
3
caring for and rearing them for civic consciousness and efficiency and the
It is the benefit of parental authority which forms the structure and direction of a
childs life. A child needs his parents to serve as reference on how he can make
decisions of his own. Even with the drastic change of the behavior of children and
adolescents towards the relationship with their parents and elders, parents have full
control and responsibility over them. In any of the said cases, parents struggle to be
as authoritative as they can to affect every choice a child makes. After all, parents
Support is the most sacred and important of all obligations imposed by law and
it is imposed with overwhelming reality. The others may sometimes fail but this one
should never fail unless for a valid cause. 10 Generally, support constitutes whatever is
necessary to keep a person alive. However, in keeping with the financial position of
Parents and their legitimate children are obliged to mutually support one
another and this obligation extends down to the legitimate grandchildren and great
4
grandchildren.12 As support is held to be a mandatory obligation, it cannot be refused
to be provided in the absence of valid causes. The Supreme Court has even said that
blood to the person supposed to give support, there is no reason why the obligation to
As a general rule, while they are living together, parents use their parental authority
together, whether or not they are married. But if the parents do not live together
anymore, only one of them has custody of the children, the other parent still keeps
parental authority.14 Aside from authority, parents are obliged to give support to their
children.
14 Educaloi.qc.ca, Parental Authority: Rights and Responsibilities of Parents, Accessed on July 31,
2016, Available from https://www.educaloi.qc.ca/en/capsules/parental-authority-rights-and-
responsibilities-parents.
5
4. Parents and their illegitimate children and the legitimate
and illegitimate children of the latter; and
5. Legitimate brothers and sisters, whether of full or half-
blood.15
As children need support and parents are obliged to give such pursuant to the
deprive his child of financial support. Republic Act 9262 or the Anti-Violence Against
Women and Their Children Act of 2004 considers such act of refusal to give support to
Currently, there are rampant cases of social problems affecting primarily children such
as broken families, teenage pregnancies, and non-marital relationships which all lead
to resentful behavior of most children born out of these cases. And out of the condition
that the parents do not live together or cannot live together, there are lots of queries
that go hand in hand. Until when can the other parent who exercises parental
15 ATTY. MARIA CLARA B. TANKEH-ASUNCION, Syquia Law Firm, HELPFUL INFO ABOUT
CHILD SUPPORT IN PHILIPPINES, World Law Direct, Accessed on August 13, 2016, Available
from http://www.worldlawdirect.com/forum/international-law-issues/38787-helpful-info-about-child-
support-philippines.html
6
authority only exercise such authority? What if the said other parent cannot exercise
such authority when he has his own legitimate family? What if the other parent refuses
intentionally to exercise his parental authority? Until when do the laws allow the other
parent to exercise the authority? What if the parent cannot exercise the authority well,
The Family Code of the Philippines provided for grounds for extinguishment of
parental authority which can be found under Articles 228 and 229. Article 228 provides
for grounds which contemplate instances where there is no fault on the part of the
parents.
While under Article 229, the grounds provided are events without the fault of
7
(5) Upon judicial declaration of absence or
incapacity of the person exercising parental
authority. (327a)18
According to the Council for the Welfare of Children's (CWC) latest data, as of
2011, there are over 3,000 neglected and abandoned Filipino children. Since 2003,
children have had the highest magnitude of poor among basic sectors, the National
Organization, the Philippines has an abandoned children problem. About 1.8 million
children in the country, more than 1% of its entire population, are abandoned or
neglected.20
These situations prevail despite the mandate for parents to take care of their
children not only as a natural obligation but also as statutory one. Worse are even
legitimate children were victims of abandonment and neglect. But the law does not
distinguish as to the entitlement to legal support. The legal obligation of the father to
provide for support to his child is based on Article 195 (3) of the Family Code, which
states that parents and their illegitimate children and the legitimate and illegitimate
20 Jonathan Kaiman and Sunshine de Leon, The Philippines has 1.8 million abandoned children.
Here's what keeps many from adoption, Los Angeles Times, May 28, 2016, Accessed on October 8,
2016, Available from http://www.latimes.com/world/asia/la-fg-philippines-orphans-adv-snap-story.html
8
children of the latter have reciprocal legal obligation to provide support to each other. 21
The obligation to give support is considered demandable from the time the person
who has a right to receive the same needs it for maintenance but it shall only be paid
from the date of judicial or extra-judicial demand. For instances of failure and
intentional refusal of the parent to support his child, the researcher intended to
conduct a study on how the said instances can validly terminate parental authority
This study aims to determine the legal implications of including refusal to pay legal
the need to set the guidelines in determining the grounds which may terminate
parental authority.
1. What are the legal implications of adding refusal of payment of legal support as
parental authority?
4. How does the Philippines comply with the mandate of International laws with
21 The Manila Times, Father has legal obligation to give support to his illegitimate child
9
CONCEPTUAL FRAMEWORK
This study intends to analyze the current provisions on support and parental
authority under the Family Code of the Philippines especially Articles 228 to 233
present status regarding support and exercise of parental authority, the study aims to
terminate parental authority and determine the legal effects of the same to the
Recommended
guidelines as to
determine
Empirical Research
Articles on Support and additional
Parental Authority under Historical Analysis grounds for
the Family Code termination of
Comparative Analysis parental authority
(Articles 194-233) between Foreign Laws
and Domestic Laws on Recommended
Support refusal to pay
10 legal support as
additional ground
in terminating
parental authority
ASSUMPTIONS
ground for termination of parental authority, the researcher was guided by the
following assumptions:
1. Convention on the Rights of the Child is part of the law of the land.
2. Family Code provisions on Support and Parental Authority are in consonance
The importance of this study is mainly grounded on the need to include refusal
and the need likewise to provide for guidelines in determining any other possible
11
This study is significant with the rampant cases of children who remain
unsupported by their own parents without any valid reason for such. As the laws are
silent as to grounds which comprises of instances where the parents are at fault or in
bad faith, the need for the conduct of this study is paramount to keep our laws
responsive to the prevailing situations in the society. Thus, Presidential Decree No.
603 and the Family Code of the Philippines would become effective tools in promoting
rights of the children as well as to adhere to International laws in which the Philippines
is a State Party.
support can be an additional ground for termination of parental authority. This shall
cover both legitimate and illegitimate children regardless of whether such children are
The provisions of the Family Code regarding support and parental authority are
included in this study. More specifically, the study shall focus on Articles 220 and 228
of the Family Code. This study is limited only on financial support of the parent. This
does not cover foundlings, abandoned, neglected or abused children who are not
12
CHAPTER II
parental authority and the grounds for termination of the same. Likewise, the
obligation and legal consequences on parents who refuse to give the mandated legal
13
support and the obligation of the Philippines to adhere to International laws are
International Sphere
The U.N. Declaration of the Rights of the Child (DRC) builds upon rights that
had been set forth in a League of Nations Declaration of 1924. The Preamble notes
that children need special safeguards and care, including appropriate legal
protection, before as well as after birth, reiterates the 1924 Declarations pledge that
mankind owes to the child the best it has to give, and specifically calls upon
voluntary organizations and local authorities to strive for the observance of childrens
rights.22
Another push for childrens rights occurred in the 1960s and 1970s, when children
international and transnational law has been identified as a striking change in the
22 Geraldine Van Bueren, The International Law on the Rights of the Child 10-11
(Dordrecht/Boston/London, Martinus Nijhoff Publishers, 1995. 35 International Studies in Human
Rights)
23 Stephen R. Arnott, Family Law: Autonomy, Standing, and Childrens Rights, 33 William Mitchell
Law Review 809 (2007)
14
challenged courts reluctance to interfere in family matters, promoted broad child
welfare reforms, and was successful in having laws passed to regulate child labor and
provide for compulsory education. It also raised awareness of childrens issues and
One of the key principles in the DRC is that a child is to enjoy special protection as
well as opportunities and facilities, by law and by other means, for healthy and
freedom and dignity. The paramount consideration in enacting laws for this purpose
Afterwards, the United Nations Convention on the Rights of the Child 1989 came in
the picture. The Convention on the Rights of the Child (CRC) is the most
longest U.N. human rights treaty in force and unusual in that it not only addresses the
granting and implementation of rights in peacetime, but also the treatment of children
in situations of armed conflict. The CRC is also significant because it enshrines, for
the
24 Wendy Zeldin, Childrens Rights: International Laws, Library of Congress, Accessed on October 3,
2016, Available from https://www.loc.gov/law/help/child-rights/international-law.php#_ftnref1
25 Ibid.
15
first time in binding international law, the principles upon which adoption is based,
creates new rights for children under international law that previously had not existed,
such as the childs right to preserve his or her identity (Articles 7 and 8), the rights of
vulnerable children like refugees to special protection (Articles 20 and 22), and
indigenous childrens right to practice their culture (Articles 8 and 30). In some
instances, this innovation takes the form of child-specific versions of existing rights,
such as those in regard to freedom of expression (Article 13) and the right to a fair trial
(Article 40). Second, the CRC enshrines in a global treaty rights that hitherto had only
been found in case law under regional human rights treaties (Article 12). Further, CRC
replaced non-binding recommendations with binding standards like for instance the
safeguards in adoption procedures and with regard to the rights of disabled children
(Articles 21 and 23). Fourth, new obligations are imposed on States Parties in regard
to childrens health and offering rehabilitative measures for victims of neglect, abuse,
and exploitation (Articles 28(3) and 39). Finally, CRC sets forth an express ground
26 Convention on the Rights of the Child, Amnesty International USA, Accessed on October 3, 2016,
Available from http://www.amnestyusa.org/Children/
Convention_on_the_Rights_of_the_Child/page.do?id=1101777&n1=3&n2 =78&n3=1272
27 Ibid.
16
obligating States Parties not to discriminate against childrens enjoyment of CRC
rights.28
Later on, the United Nations adopted two protocols the Optional Protocol to the CRC
on the Sale of Children, Child Prostitution, and Child Pornography 2000 (Sex
Trafficking Protocol) and the Optional Protocol to the Convention on the Rights of the
Child on the Involvement of Children in Armed Conflict (Child Soldiers Protocol) Child
Soldiers Protocol on May 25, 2000. 29 The Preamble refers to achieving the purposes
of the CRC and to the need for States Parties to implement specific provisions,
among them CRC articles 34 and 35 on broad protections against child trafficking,
sexual exploitation, and abuse. The Preamble also reflects CRC language in regard
harmful work.30
Human Rights contains two articles specifically referring to children. Article 25(2)
states: motherhood and childhood are entitled to special care and assistance. All
children whether born in or out of wedlock shall enjoy the same social protection.
28 Ursula Kilkelly, The Best of Both Worlds for Childrens Rights? Interpreting the European
Convention on Human Rights in the Light of the UN Convention on the Rights of the Child, Human
Rights Quarterly 311 (2001), Accessed on October 11, 2016, Available from
http://muse.jhu.edu/journals/human_rights_quarterly/v023/23.2kilkelly.pdf
29 http://www.unhchr.ch/html/menu2/dopchild.htm
30
17
Article 26 calls for the right to education for all, and deals both with access to and the
be directed to the full development of the human personality and to the strengthening
Economic, Social and Cultural Rights 1966 particularly the Preamble which provides
that recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the
world and that these rights derive from the inherent dignity of the human person. 32
Article 10, paragraph 3 of said Covenant states that Special measures of protection
and assistance should be taken on behalf of all children and young persons without
any discrimination for reasons of parentage or other conditions. Children and young
persons should be protected from economic and social exploitation. Further, Article
physical and mental health, to be fully realized by, among other measures, States
Parties.33
32 International Covenant on Economic, Social and Cultural Rights, Accessed on October 14, 2016,
Available from http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx
33 Ibid.
18
International Laws on Legal Support
The relationship of father to his child is often perceived as an essential part of the
childs overall development. Wollny, Apps and Henricson 34 in their study opined that
family breakdown leads to varying roles of fathers with their childrens growth and
development resulting from certain illicit relationships parents are having. This lack of
a meaningful relationship with their father has the potential to disrupt child well-being
childs well-being.35 Child maintenance must not only be perceived from a purely
If fathers do not maintain their children and if there are no social security measures
when fathers do not or cannot pay, then obviously women and children will continue to
suffer. Ross (1994) emphasized in his study that child support is among the most
35 Paulette Andrea Henry, Child Maintenance, Father Child Relationships and Family Well-being,
Macrothink Institute, Accessed on October 16, 2016, Available from
https://www.researchgate.net/publication/283034578_Child_Maintenance_Father_Child_Relationships
_and_Family_Wellbeing
36 Ibid.
19
important obligations of out-of-home fathers to their children and provision of
do so. In Australia, once an order of support has been adjudicated and the person
issuing notice. Included as remedies are collection from salary or wages, collection
from social security pensions and benefit, tax refund intercepts, collection from
In California, once ordered by the court to pay child support, the court will issue
wage assignment to the parents employer for the latter to take the support payments
out from the wages. If there is failure to pay the support even the parent has the
capacity to do so, the failing parent can be held in contempt of court and be
imprisoned. However, if failure to pay is due to loss of job or any other important
change, the failing parent shall pray before the court to reduce the amount of
support.39
37 Ibid.
38 Australian Government, Child Support Guide, Released on August 15, 2016, Accessed on August
20, 2016, Available from http://guides.dss.gov.au/child-support-guide/5/2
39 California Courts, Paying a Child Support Order, Accessed on August 20, 2016, Available from
http://www.courts.ca.gov/1197.htm
20
In Texas, the term parent is a legal term and generally, child support is money
that a parent pays to another person to help support his or her child. All parents have
a legal duty to financially support their children. This legal duty exists even if there is
no court order for child support. A Texas court may order a parent to support his or her
child until the child turns 18 years-old, graduates from high school, marries, dies, or is
emancipated by court order. If the child is disabled, the court may order a parent to
financially support the child indefinitely. If a parent does not pay their court ordered
child support, he or she could have their property taken away, lose their drivers
Lastly, in Canada, in the event that a parent stops paying their child support,
under no circumstances can they be prevented access to their children. Also, in the
same regard, they cannot stop paying their support if a custodial parent denies them
access to their children. Consequently, the consequences for not paying support are
as follows: garnishment of wages for child support payments, arrears and interest,
accounts and/or assets, reporting lack of payments to the credit bureaus and to
21
Parental authority is the entirety of rights and obligations concerning both
the person and the property of the child and belongs equally to both parents. It
is defined under Romanian Civil Code as a set of rights and obligations granted or
Also under Romanian law, parental rights and obligations are not
correlated. This means that the rights conferred to parents do not correspond
their minor children, parents practically only have obligations, and parental rights
exist only in their relations with third parties, being designed as tools for
In India, a court may terminate the parental-child legal relationship under the following
circumstances:
22
occurred and as a result of the sexual intercourse the
child is born;
43 Child and Family Services Policy Manual: Legal Procedure Termination of the Parent-Child Legal
Relationship/Permanent Legal Custody, https://dphhs.mt.gov/Portals/85/cfsd/documents/POLICY/302-
6%20Permanent%20Legal%20Custody.pdf
44 Ibid.
23
Almost the same grounds were considered under every state of Washington, the
District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto
Rico, and the U.S. Virgin Islands. In these states, once parental rights of both parents
are terminated, the child becomes legally free to be adopted. The grounds for
involuntary termination of parental rights are specific circumstances under which the
child cannot safely be returned home because of risk of harm by the parent or the
inability of the parent to provide for the childs basic needs. Each State is responsible
for establishing its own statutory grounds, and these vary by State. 45
The most common statutory grounds for determining parental unfitness include:
The above factors become grounds for terminating parental rights when reasonable
45 Childrens Bureau, Grounds for Involuntary Termination of Parental Rights, Accessed on October 10,
2016,Available from https://www.childwelfare.gov/pubPDFs/groundtermin.pdf.
24
reunification after placement have failed to correct the conditions and/or parental
Under the laws of Alabama, if the court finds from clear and convincing evidence that
the parents of a child are unable or unwilling to discharge their responsibilities to their
child, it may terminate the parental rights of the parents. In making this determination,
the court shall consider, but not be limited to, the following:
46 Ibid.
25
6. Unexplained serious physical injury to the child
proved to be the result of the intentional conduct or
willful neglect of the parent.
For Arizona, best interest of the child was the basis in the formulation of grounds to
who is not the childs legal parent to take a test requested by the department or
ordered by the court to determine if the person is the childs natural parent is prima
facie evidence of abandonment unless good cause is shown by the alleged parent for
47 Ibid
26
reasonable grounds to believe that the condition
will continue for a prolonged period.
Recognition of the best interest of the child as basis for the grounds where parental
mandate of the United Nations. More importantly, it is a stigma that children are
48 Ibid.
27
CHAPTER III
RESEARCH METHODOLOGY
This chapter states the methods and methodology employed in the research.
A. Methods of Research
payment of legal support as another ground without the need of judicial order.
conditions or relationships, held opinions and belief, processes and effects and
concerned with conditions and things existing at the time of the study but it also
considers past events and influences which are deemed related to what is studied in
the present.49
49 Venancio Ardales, Basic Concepts and Methods in Research (Ermita, Manila: Educational
Publishing House, 2008).
28
describe existing beliefs, opinions or conditions of a social group, compare sub-
In the conduct of this study different kinds of documents were examined. The
International Human Rights, and local laws, textbooks on Persons and Family
C. Collection Techniques
50 Ibid.
29
To analyze the collected data, comparative method shall be used
primarily. The researcher shall examine and analyze the concept of rights of the
children with particular attention to the right to receive support from parents and
grounds for termination of parental authority based on the best interest of the child.
Provisions of the Family Code on Parental authority and Support and the
commentaries of known authors of Persons and Family Relations Law books and the
meetings of the Code Commission regarding said provisions shall be analyzed with
30