When your child is withheld from your custody

Few tragedies cut as deeply as the sudden, unjustified loss of custody over one’s own child. Too often, a separated partner or even a relative “borrows” the child for an outing and then simply refuses to return the minor.

For many parents — mothers especially — the experience is heartbreaking and bewildering.

Yet Philippine law provides clear, immediate remedies.

A parent deprived of custody may pursue any or all of these legal actions: (1) a Petition for Habeas Corpus, (2) a criminal case for Kidnapping of a Minor or for Inducing a Minor to Abandon the Home, and (3) a criminal case for violation of the Anti-Violence Against Women and Their Children Act (RA 9262).

These remedies are not mutually exclusive and may be taken simultaneously.

The most direct and efficient remedy is a petition for habeas corpus under A.M. No. 03-04-04-SC, or the Rule on Custody of Minors (RCM), promulgated by the Supreme Court in 2003 to enable swift recovery of a child wrongfully withheld (Masbate v. Relucio, G.R. No. 235498, July 30, 2018).

A verified petition is filed before the Family Court where the minor is found. It must state: the parties’ personal circumstances; the name, age and present whereabouts of the child and the child’s relation to the parties; the material facts showing deprivation of custody; and other facts relevant to custody (Sec. 4, RCM).

The petition must clearly show that: (a) the petitioner has the right of custody; (b) the respondent is withholding the child; and (c) it is in the child’s best interest to be returned (Unson III v. Navarro, G.R. No. 52242, Nov. 17, 1980).

Once these requisites are met, the Family Court immediately issues summons directing the respondent to produce the minor. The court may grant provisional custody to the rightful parent while the case is heard (Secs. 5 and 13, RCM).

“Best interest of the minor,” defined in Section 14, refers to the totality of conditions most conducive to the child’s survival, protection and healthy development — physical, psychological and emotional.

Factors include the child’s health and welfare, any history of abuse, the ability of a parent to foster a loving relationship with the other parent, and the preference of a child over seven who can discern wisely. Because time is critical, provisional custody is typically resolved within a week or two.

Simultaneous criminal action may be taken. Article 270 of the Revised Penal Code punishes Kidnapping of a Minor when a custodian deliberately refuses to return a child, forcing the parent to seek court intervention (People v. Ty, G.R. No. 121519, Oct. 30, 1996).

Similarly, under Article 271, Inducing a Minor to Abandon the Home is committed when one persuades a child to leave his parents or guardian.

If the offender is the child’s father or a former partner with whom the mother has or had a relationship, the wrongful deprivation of custody also constitutes psychological violence under RA 9262, the Anti-Violence Against Women and Their Children Act. Section 3(c) defines psychological violence to include the “unlawful or unwanted deprivation of the right to custody and/or visitation of common children,” alongside intimidation, harassment and other acts causing emotional suffering.

No parent should feel powerless when a child is taken away without cause. The law offers both immediate relief through habeas corpus and strong deterrents through criminal sanctions.

Knowing these remedies is the first step to protecting not only one’s legal rights but also the child’s well-being and sense of security.