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Dear ____________,

Before answering your queries, it is important that we discuss first the

rule on custody.
Having been born outside a valid marriage, Ethan is deemed an illegitimate child.
Article 176 of the Family Code of the Philippines explicitly provides that "illegitimate
children shall use the surname and shall be under the parental authority of their
mother, and shall be entitled to support in conformity with this Code." This is the
rule, whether or not the father admits paternity.
The recognition of an illegitimate child by the father could be a ground for ordering
the latter to give support to, but not custody of, the child. The law explicitly confers
to the mother sole parental authority over an illegitimate child; it follows
that only if she defaults can the father assume custody and authority over the
Under the law of Sweden, the mother has sole custody if the parents are not
married to each other. Parents who are not married to each other can, however,
decide that custody shall be joint. Such an agreement must be approved by the
social welfare committee. In conjunction with an acknowledgement of paternity, the
parents can also apply with the social welfare committee for registration of joint
There is thus no question that Trisha, being the mother of and having sole parental
authority over the minor, is entitled to have custody of Ethan. She has the right to
keep him in her company. She cannot be deprived of that right, nor can she
renounce or transfer it, except in the cases authorized by law. No child under seven
years of age shall be separated from the mother, except when the Court finds cause
to order otherwise.
Having discussed the rule on custody, we proceed now to answering your queries in
the order you presented them.
1. It appears that the father/mother left behind can charge a criminal
case against the other parent for child abduction however I read
online that Philippines does not acknowledge child abduction - is
this fact true? If it isn't, what could happen?
There is child abduction in the Philippines. It is called Kidnapping and Failure to
Return a Minor.
This crime has two essential elements:
1. The offender is entrusted with the custody of a minor person; and
2. The offender deliberately fails to restore the said minor to his parents or

What is actually being punished is not the kidnapping but the deliberate failure of
that person to restore the minor to his parents or guardians.
The crime of Kidnapping and Failure to Return a Minor is not applicable in the case
of Trisha. As we have said earlier, the law explicitly confers to the mother sole
parental authority over an illegitimate child. The lawful exercise of
parental authority cannot be a source of criminal liability.
Ethans father may file for a Petition for the Issuance of Writ of Habeas
Corpus. However, the Petition shall have no leg to stand on. Trisha has the right to
keep her minor son in her custody. A Writ of Habeas Corpus may be issued only
when the rightful custody of any person is withheld from the person entitled thereto.
2. If the child is in the Philippines, the parent left behind may send an
application from the Hague Convention to return Ethan to the
Department of Foreign Affairs or the Consulate - Will it be highly
likely that the DFA or Consulate make an investigation and attempt
for Ethan's return? Or due to the law that the mother has 100%
custody under the age of 7, will this application be forfeited?
Under the Hague Convention, the removal or the retention of a child is to be
considered wrongful when:
a) it is in breach of rights of custody attributed to a person, an institution or
any other body, either jointly or alone, under the law of the State in which the child
was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised,
either jointly or alone, or would have been so exercised but for the removal or
An illegitimate child is under the sole parental authority of the mother. In the
exercise of that authority, she is entitled to keep the child in her company. Thus,
there is no breach of rights of custody and the Court or the DFA will not deprive her
of custody, absent any imperative cause showing her unfitness to exercise such
authority and care.
We trust that the foregoing adequately address your concerns. Please feel free to
contact us if you need further clarification or assistance.
Thank you and regards.
Very truly yours,
Pablo A. De Borja