When proximity does not matter
An OFW can still exercise sole custody by granting provisional custody to another individual, such as their mother — in this case, Joselyn.
Daily TribuneAn OFW can still exercise sole custody by granting provisional custody to another individual, such as their mother — in this case, Joselyn.
With the growing number of Filipino parents compelled to leave the country in search of better opportunities abroad, does a parent really lose parental and custody rights over children left behind in their homeland?
In the recent case of Carnabuci v. Tagaña-Carnabuci (G.R. 266116, 22 July 2024), the Supreme Court held that an OFW parent cannot be considered “absent” in contemplation of Article 212 of the Family Code. A parent who is temporarily assigned abroad for work can be granted custody over minor children. The physical separation from the minor children does not diminish the parent’s right to custody.
This case stemmed from the Petition for Habeas Corpus filed by David on 16 October 2019, praying that an order be issued directing Harryvette (his wife) and Joselyn (his mother-in-law), among others, to produce the bodies of his two minor children, Rocco (three years old) and Zahara (two years old).
David, an Italian citizen, first met Harryvette in La Union sometime in 2012. The following year, the two subsequently married and resided in Cebu. In 2015, the marital relations between them soured. Harryvette alleged that David subjected her to physical abuse, which ultimately resulted in their separation.
In 2018, Harryvette left Cebu and brought their minor children with her to Antipolo City. Sometime after, Harryvette left for Paris, France, to find work. In April 2019, she returned to the Philippines to introduce her new partner. Harryvette then left again for France and turned over the custody of the minor children to David.
When Harryvette returned to the Philippines in July 2019, she and Joselyn learned that David had gone to Thailand and left their minor children in the care of a couple without Harryvette’s knowledge and consent. The following month, Harryvette finally decided to take the minor children to Antipolo City, where Joselyn resides.
On 4 September 2019, Harryvette executed a notarized document authorizing her mother, Joselyn, to act as guardian to her minor children and two other children from a previous partner before returning to Paris.
On 7 October 2019, David visited the minor children in Antipolo City and demanded custody from Jocelyn. Joselyn refused, arguing that she had a better right to custody than David, based on the authority granted to her by Harryvette.
When the case reached the Supreme Court, it explained that in custody cases, the court shall consider the totality of circumstances and conditions, guided by the principle of “the best interest of the child.” The grant of custody is not strictly based on the physical presence or proximity of a parent to a child.
Harryvette cannot be considered “absent” pursuant to Article 212 of the Family Code, as she was able to return to the Philippines multiple times since 2018, made continuous efforts to communicate with the minor children, and was able to financially support them.
The Supreme Court further clarified that the mere fact that a parent is an OFW does not strip them of their right to exercise parental authority or sole custody. An OFW can still exercise sole custody by granting provisional custody to another individual, such as their mother — in this case, Joselyn.
For more of Dean Nilo Divina’s legal tidbits, please visit www.divinalaw.com. For comments and questions, please send an email to cad@divinalaw.com.