What Are the Child Custody Rights in Divorce Cases?

The most important and complex issue in a divorce case is ‘Child Custody’. Both husband and wife, use child custody as a medium to establish the guilt and fault of the other party.

In India, Guardian and Wards Act, 1890 is empowered to determine the issue of child custody.

Generally, the court has the power to grant the following:

(a) Permanent Custody

(b) Interim Custody

(c) Visitation Rights

(a) Permanent Custody

The court awards permanent custody after determination of all aspects of the case. Usually, prime criteria is the “welfare of the child.”

While deciding the ‘welfare of the child’, the court mainly considers following factors:

i. The qualification of both father and mother.

ii. Family background of the both father and mother, which includes their financial and academic qualifications

iii. Child’s wishes

iv. Conduct of the parties

v. Overall development of the child.

(b) Interim Custody

The court awards interim custody during the pendency of the case keeping in mind the overall development of the child. While granting interim custody, the court tries to maintain balance between the husband and the wife and also remains cautious that the child is not treated as a shuttlecock between the estranged spouses.

The court also imposes certain conditions for the welfare of the child like not leaving the country without informing the court, to protect the interest of another party.

(c) Visitation Rights

The Court grants visitation rights at two stages, at the stage of the trial, and after the determination of the dispute (divorce in most of the cases). Once one of the spouses gets the permanent custody, other spouse has a right to meet the child once a week or as directed by the Court. The object of the court is to maintain the emotional bond between the child and parents.

Conclusion

In matrimonial proceedings, the court has to decide the question of custody of children during the pendency of the proceedings and after the passing of a decree. The court can revoke, suspend or vary, any such order made earlier on the change of circumstances. While adjudicating upon the custody of a child, the court has to keep in mind the welfare of a child. Though court considers other factors as well, however, welfare of the child is of utmost consideration. Usually, in female child custody cases, the courts give custody to the mother as at the age of puberty, girl child needs the mother’s care. Thus, over and above, welfare of the child is the influential factor while deciding the custodial rights.

Child Advocate Lawyers

Child advocate lawyers are the professionals who work to protect the rights of minors in various cases that can include child custody, abuse, divorce, neglect, and proceedings in juvenile court. A child advocate lawyer is generally appointed by the court in the following instances:

• The minor has been neglected or abused, physically or sexually
• Child custody proceedings that have been contested
• Adoptions
• Visitations
• Parental rights termination

When it involves juvenile court proceedings the parents can choose to hire a juvenile attorney but if they cannot afford to hire one the court will appoint a child advocate lawyer. These lawyers are trained in representing minors. To become certified in child welfare law they need to be certified through the National Association of Counsel for Children (CACC). To get this certification they must have been in practice as child advocate lawyers for three years and spent at least thirty percent of that time working in the field of child welfare. They will also have to complete at least thirty-six hours or more of continuing legal education courses that deal with child welfare law.

Responsibilities of child advocate lawyers

• Participate in all court negotiations and proceedings
• Requesting hearings
• Conducting investigations
• Obtaining all the necessary and relevant records regarding the parents and minor
• Receiving notice of all documents from court
• In support of the advocate’s position they present evidence to support it.
• Collecting child support payments
• Making varies recommendations to the court in the best interests of the minor they are representing.
• Presenting the wishes of the minor to the court

In juvenile court proceedings child advocate lawyers will coordinate court services with community resources and agencies that provide treatment programs or assistance to any minor that is need of alcohol or drug abuse treatment or other forms of counseling. They are the ones that will investigate the criminal charges and circumstances that surround it. Child advocate lawyers will also make recommendations to the juvenile court in regards to a suitable closure of the case in the best interest of the minor.

In some cases these lawyers may serve as special education advocates. If the child has special needs the child advocate lawyer can represent both the child and their parents in issues regarding treatment and services the local school district offers to make sure that these children receive the right public education that is provided and required by law. They can also counsel parents and the children to help them understand their legal rights. Child advocate lawyers also lobby state legislature on behalf of the rights of children and research legislative proposals. Child advocate lawyers work to make sure that the rights of children are enforced.

Domestic Adoption in the Philippines

“My husband and I unfortunately cannot have children. A distant relative from the province has 7 children, the two youngest children are aged 11 months and new born baby about 2 weeks old. Due to financial constraints, she offered for us to adopt her two youngest children. We took the children home after we executed an Adoption Agreement and had the same notarized. I would like to have our children bear my husband’s name to formalize their status. How do we go about this?”

First things first, a mere adoption agreement executed between the parents and prospective adoptive parents is not valid. This is because adoption proceedings are judicial in nature. The signing of the Adoption Agreement does not ipso facto did not sever the parental authority of the parents over their two children and vest the same with the adoptive parents. Jurisprudence provides that to establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity.

Domestic Adoption is governed by Republic Act 8552, which provides for guidelines in requirements and procedures in adopting a child.

Who may adopt?
1) Any Filipino citizen who is of legal age, possessing full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen years older than the person to be adopted, and who is in a position to support and care for his/her children in keeping with the means of the family;
2) Any alien who possesses the same qualifications above stated for Filipino nationals, provided:
a) The alien’s country has diplomatic relations with the Republic of the Philippines;
b) The alien has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adopted and maintains such residence until the adoption decree is entered;
c) The alien has been certified by the diplomatic or consular office or any appropriate government agency that he/she has legal capacity to adopt in his/her country;
d) That the alien’s government allows the adoptee to enter the alien’s country as his/her son or daughter.

Who may be adopted?
(a) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption;
(b) The legitimate son/daughter of one spouse by the other spouse;
(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy;
(d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority;
(e) A child whose adoption has been previously rescinded; or
(f) A child whose biological or adoptive parent(s) has died: Provided, that no proceedings shall be initiated within six (6) months from the time of death of said parent(s).

Who is a child declared available for adoption?
A child who has been voluntarily or involuntarily committed to the Department of Social Welfare and Development (DSWD) or to a duly licensed and accredited child-placing or child-caring agency, freed of the parental authority of his/her biological parents or guardian or adopters in case of rescission of adoption.

“I am financially stable and unmarried. Can I adopt on my own?”
Yes. Under RA 8552, the husband and wife must adopt jointly, except in the following cases:
(1) When one spouse seeks to adopt his own illegitimate child; or
(2) When one spouse seeks to adopt the legitimate child of the other; or
(3) When the spouses are legally separated.

Likewise, the Department of Social Welfare and Development (DSWD) allows individual to adopt a child if they can prove to be capable of adopting a child. So long as the applicant meets all the requirements and has shown the proper motivation for wanting to care for a child, he or she will be considered. A prospective solo adoptive parent shall also go through the same process of adoption by couples.

What is the procedure for domestic adoption?

Prospective parents or solo parents who wish to adopt are first required to attend adoption forums by the DSWD to assess their motivation and to undergo counseling by a licensed social worker.

A petition shall be filed at the Regional Trial Court of the province or city where the prospective adoptive parents reside. Thereafter, an Order shall be issued by the Court that includes a directive for the publication of the Petition on a newspaper of general circulation and a directive for the court social worker to conduct a home study report.

Thereafter, the Court-appointed social worker shall conduct the home study and submit the report. If the report is approved, there would be a matching process or family selection, where the petitioner meets the prospective adoptee. During the hearing, the petitioner and the adoptee must personally appear and the former must testify before the presiding judge of the court.

Later, the prospective parents would be authorized to get physical custody of the child for a trial period of six months. If the trial produces satisfactory results, the DSWD will issue a consent of adoption. The adoptive parents would then need to file a court petition for the adoption to be finalized.

The final step would be the issuance of an amended birth certificate which will indicate the name of the child that the adoptive parents want him or her to take.

For more information about this topic, you may contact Atty. Joyce Felisa B. Domingo-Dapat at (+63) 917 548 8045. Atty. Joyce is the founding partner of Domingo Munsayac and Associates. Her practice areas include intellectual property law, family law, real estate transactions, corporate law, immigration, taxation and litigation. She also specializes in estate planning and handles judicial and extrajudicial settlement of estates.