According to the Law: Parental Authority and the Case of Kris, James and Bimby

1. What is the effect of the declaration of nullity of a couple's marriage on the legitimacy of their child?
Our Family Code states that for a marriage to be valid, it must comply with both the essential and formal requisites of marriage, that is:

a. Legal capacity of the contracting parties;
b. Consent freely given in the presence of the solemnizing officer;
c. Authority of the solemnizing officer;
d. A valid marriage license; and
e. A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age.

The absence of any of these requisites will make the marriage void from the beginning, and unfortunately, any child born during a void marriage is deemed an illegitimate child. Thus, in the case of James Yap and Kris Aquino whose marriage was declared null because their wedding was celebrated by someone who no longer had a license or authority to solemnize marriages, their marriage is considered void from the beginning -- it's as if they were never married at all. Thus, their child becomes illegitimate. However, since he is the acknowledged natural child of James Yap, Bimby is still entitled to carry his father’s surname, and he is also entitled to receive financial and emotional support from his father.


2. Who exercises parental authority over an illegitimate child?
Art. 176 of the Family Code provides that illegitimate children shall be under the parental authority of the mother. However, this does not mean that the father has no rights over his illegitimate children. The Supreme Court has held that a biological father shall always have a right to see his children and to participate in their upbringing, due to “the constitutionally protected inherent and natural right of parents over their children. Even when the parents are estranged and their affection for each other is lost, their attachment to and feeling for their offspring remain unchanged.  Neither the law nor the courts allow this affinity to suffer...” The Court also made it clear that “Article 49 of the Family Code provides for appropriate visitation rights to parents who are not given custody of their children.”


3. Can a mother take away a father’s right to see his child?
In every case involving a child, whether it is about custody, support, or visitation rights, the welfare and best interest of the child is always the primary concern. If it can be proven in court that the father should no longer be allowed to see the child for the latter’s protection and best interest, then the court may issue an order preventing the father from seeing or contacting his child.

However, the Supreme Court has held that to deprive a father of the right to see his child, the grounds must be serious, must be real, and not merely “the product of (an) unfounded imagination”. Similarly, the Court rules that even if the father is a gambler and womanizer, this does not mean that he would be a bad or immoral influence on the child.

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4. Can a mother adopt her own child?
Technically, yes, a mother is allowed to adopt her own child. Republic Act 8552, or “The Domestic Adoption Act of 1998” provides that “Any Filipino citizen of legal age, in possession of 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 (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family” may adopt, and that “the requirement of sixteen (16) year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent.”

Also, “an illegitimate son/daughter” may be adopted “by a qualified adopter to improve his/her status to that of legitimacy.” Applying these provisions to the case of Kris and James, then it would be possible for Kris to adopt Bimby so that he may become her legitimate son. Take note however, that this comes with several legal repercussions: First, Bimby shall become a legitimate child, while his older brother Josh, will remain an illegitimate child. Under the law, an illegitimate child is entitled to only one-half of the legitimate child’s inheritance—which means that unless Kris makes a will giving both her children the same amount of inheritance, Bimby will stand to inherit twice as much as Josh will. Second, if James consents to the adoption, he will lose any parental rights he has over Bimby. RA 8552 provides that as an effect of the adoption, “all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s).”


5. What is a Protection Order? What are the effects of its issuance?
A Protection Order under RA 9262 or the “Anti-Violence Against Women and Their Children Act” is an order issued by a Barangay or a Court in order to prevent “further acts of violence against a woman or her child” and “granting other necessary relief.”

There are 3 kinds of Protection Orders: First, the Barangay Protection Order (BPO), which is effective for 15 days, and is issued by the Punong Barangay. Next is the Temporary Protection Order (TPO), which is effective for 30 days, and issued by a competent court. Both the BPO and the TPO shall be issued on the same date that it was applied for, even without hearing, if it appears that the issuance of the Protection Order is necessary. Last is the Permanent Protection Order (PPO), which can only be issued after due notice to the respondent, and after a hearing has been conducted. If granted, the PPO shall be permanently enforced unless revoked by the same court that granted it.

A Protection Order is granted to “safeguard the victim from further harm, minimize any disruption in the victim’s daily life, and facilitate the opportunity and ability of the victim to independently regain control over her life.” Some of the reliefs granted by a Protection Order include: (1) preventing the respondent from committing any more physical, emotional, and psychological abuse against the victim; (2) prohibiting the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the victim, directly or indirectly; (3) removing and/or excluding the respondent from the residence of the victim; and (4) directing the respondent to stay away from the petitioner and any designated family or household member at a distance specified by the court, and to stay away from the residence, school, place of employment, or any specified place frequented by the petitioner and any designated family or household member.

A TPO or PPO, once issued, shall be enforceable anywhere in the Philippines, and a violation thereof shall be punishable with a fine ranging from Five Thousand Pesos (P5,000.00) to Fifty Thousand Pesos (P50,000.00) and/or imprisonment of six (6) months.

Image by Noel Orsal, courtesy of YES! magazine