According to the Law: Your 12 Solo Parent Issues Answered

Every solo parent will encounter legal issues on her civil status and her child’s welfare. Armed with The Family Code and The Solo Parent Act plus years of experience, litigation lawyer Gian Navarro, who has handled family cases at Reyes Cabrera Rojas & Associates, and Nikki Jimeno, associate lawyer at Jimeno Cope and David Law Offices, give expert advice on some legal concerns. 

 

1. "My husband and I are separated and we have a private arrangement for joint custody of our kids. How can I solidify this arrangement so he doesn’t escape from his obligations?"

Having an off-court settlement on custody and support of the children is perfectly okay, says Atty. Navarro. "It’s best to have that approved and recognized by the court so you can invoke the power of the court in enforcing rights and obligations found under the agreement."

Atty. Jimeno says, "When you file for joint custody, the court can refer you to a mediator to help you come to an agreement. It will then be submitted to the court for approval." 

 

2. "I’m filing for an annulment and want a ‘fair’ division of assets — not necessarily 50/50 but proportional to our needs. I would like to keep the house for my kids. Can I demand more than ‘half’ of my share?"

"Courts consider factors such as who has custody of the child and what amount of support is to be given before actually arriving at the proper distribution of the assets," explains Atty. Navarro. But if your husband asserts his right to half of your conjugal properties, the court will consent, unless you have a prenuptial agreement. 

But Atty. Jimeno says there is a way: "You will have to give your husband an amount equal to his half of the house from other conjugal properties you can sell. Or you can waive your share of your other non-liquidated properties in exchange for his share of the house." You and your husband should discuss and agree on who gets what of your combined assets and also set aside a percentage for your children’s future inheritance, she notes. 

 

[previous|page|next]

 

3. "Can I still get the five years’ worth of child support that  my son’s father did not provide even if I didn’t demand it then?"      

You have every right to ask your child’s father to support your child. Atty. Jimeno says, "Under the Family Code, parents are obliged to support all their children, legitimate or illegitimate. Failure or refusal to give child support is considered a criminal offense under R.A. 9262 or the Anti-Violence Against Women and Their Children Act." 

If you didn’t seek child support or ask for his help, "Support in arrears can be demanded only if you ask for it and the one obliged to provide child support fails to pay," reveals Atty. Navarro. He cites an example: "If you ask for support and the father fails to pay and you file an action in court which is resolved in your favor in 2017, the court can order him to pay support in arrears from year 2012 to 2017 and while the child still needs it."

 

4. "How does the law compute the amount for child support? My ex-boyfriend thinks I’m asking for too much."  

"Child support is determined by two factors: the needs of the child and the financial capacity of the giver. As the saying goes, you can’t squeeze blood out of a stone. If your ex-boyfriend is a billionaire, then asking for a six-figure monthly child support is not much. However, if he is a pauper, a monthly child support of P3,000 may be too much," says Atty. Navarro. He adds that the amount of child support may change over time, depending on these two factors. 

Atty. Jimeno advises to give your child’s father a breakdown of your monthly expenses so he sees how much money raising a child actually entails. "Article 194 of the Family Code states that support comprises everything indispensable for sustenance: dwelling, clothing, medical attendance, education, and transportation, in keeping with the financial capacity of the family." 

 

5. "I learned that my husband was married before. I’m filing for annulment. Will our kids be considered legitimate? Can I still ask for child support then?" 

Your children will be considered illegitimate because your marriage will be deemed void from the beginning since it was bigamous, says Atty. Jimeno. "But you can still ask for child support. The Family Code provides that all acknowledged natural children, legitimate or illegitimate, are entitled to parental support until they are gainfully employed and can stand on their own."

Atty. Navarro adds, "Once you file for nullity, it would be best to include child support as one of the major issues so you can bind the father to provide child support immediately."

 

[previous|page|next]

 

6. "After being gone for five years, my ex-boyfriend now wants to be involved in raising our son. Could he file for visitation rights? Can the court let our eight-year-old decide how often his dad can see him and with whom he wants to stay?"   

"The Supreme Court has held that parents have the constitutional and natural right to care for their children, and to see to their upbringing and welfare," stresses Atty. Jimeno. "Unless you can prove that his visits will be detrimental to the child, the courts will grant him visitation rights." 

"The best you can do will be to impose reasonable limitations on the time," advises Atty. Navarro. The choice of a child who is over seven years of age does not apply to illegitimate children because, under the law, single mothers enjoy sole parental authority over illegitimate children.

Atty. Navarro explains: "In the strictest sense, therefore, your ex-boyfriend cannot overrule you on important decisions regarding your child. Unless he can prove that you are morally unfit to perform your duties as a parent, he cannot be granted custody."  Atty. Jimeno advises, "Instead of going to court, you and yourex could work out a regular visitation schedule." 

 

7. "My child’s dad refuses to have anything to do with our son. I worry about who will take care of him in case I die. Can I appoint my mom as his next legal guardian?"       

You cannot simply appoint a guardian for your child because the law states that parental authority can be transferred only in cases of adoption or guardianship. According to Atty. Navarro: In an ideal setting, the surviving parent takes custody of the child, but this doesn’t apply in this situation because the mother has sole custody of an illegitimate child. The surviving grandparent, as stated in Article 214 of the Family Code, shall exercise substitute parental authority. In case your mom is not able to take care of your child, your sibling or a suitable guardian over 21 years of age can also be given custody, as stated in Article 216. 

Atty. Jimeno adds that if your ex suddenly files for custody, he would first need to prove his filiation to the child through a paternity test or other means. "The law will always lean towards giving parental custody to the natural parent. But your family can prove that your ex is an unsuitable father, and that he should not be granted custody over the child, even in your absence."

 

[previous|page|next]

 

8. "My husband wants to adopt my child from my previous relationship. Is my ex-partner’s consent really necessary, even if I don’t know how to reach him?"                     

The biological father’s consent is necessary; it’s a requirement under the law, stresses Atty. Navaro. But "if you can prove that you exerted earnest and diligent efforts to locate and contact the biological father but without success, then the written consent [can be omitted]," says Atty. Jimeno.

 

9. "Will my son encounter difficulties, legal or otherwise because he doesn’t have a middle name? Can changes be legally made to his name,  i.e., use my middle name?"                 

Atty. Navarro says you cannot give your middle name to your child "because the law does not provide such remedy. An unacknowledged illegitimate child can only use his given name and his mother’s surname, and will not have a middle name," but Atty. Jimeno assures that it would not be a problem for your child in the future.

 

10. "It has been nine years since my husband and I were in touch. Does that make filing for annulment easier?"             

Not necessarily. "Your annulment will still be based on the same grounds, and the length of time you’ve been apart will not be much of a factor. At best, it may make the proceedings more civil because both parties may have already accepted that separation will be in their best interest," Atty. Navaro says.

On the other hand, Atty. Jimeno says, the length of your separation could be considered proof that there is absolutely no chance of reconciliation between you and your husband. "The Court will not grant a petition for annulment if it seems that the marriage was never given a chance to work out. Still, this will not make your case bulletproof," she emphasizes. 

 

[previous|page|next]

 

11. "What’s the strongest case I can file against my ex so he doesn’t bother us again?"        

"If he abuses you or your child in any way, and you want to keep him from abusing you further, you can file for a protection order under R.A. 9262," advises Atty. Jimeno. You can file for a Barangay Protection Order, Temporary Protection Order (TPO), or Permanent Protection Order (PPO) with the Family Court in your city.

If granted, it prohibits your ex from harassing, annoying, and communicating with you in any way, and direct him to stay away from you and your family or places such as your house, office, and your child’s school. The law lists more grounds for filing a protection order.

Atty. Jimeno stresses, "You first need to prove to the court that the protection order against your ex is necessary and you feel you have no other choice left."

 

12. "Which is easier to apply for: legal separation or annulment?"                                 

According to Atty. Jimeno, legal separation is easier in the sense that it will be granted on specific grounds: sexual infidelity, abandonment, physical abuse, or homosexuality of the other spouse. An annulment of marriage is granted if you can prove that you or your spouse is psychologically incapacitated to perform the essential obligations of marriage.

"Aside from the fact that psychological incapacity is hard to prove, the courts are stricter when it comes to annulment because the law favors the validity of marriage," she says. "There is really no way to tell which one is easier because every case is different," says Atty. Navarro. It would depend on the grounds you can prove and the outcome you would like to achieve. If you are undecided, legal separation is best as it leaves the doors open for reconciliation.  

 

How to apply for a Solo Parent I.D.

You will need:

• A residence certificate from your barangay captain.

• Documents that prove you are a single parent: death certificate of spouse; declaration of nullity of marriage; certificate of no marriage; medical certificate if spouse is incapacitated

• An ITR or certification from your barangay municipal treasurer to indicate your income bracket. 

Submit these to your City/Municipal Social Welfare and Development Office (C/MSWDO) for assessment. In some cities/municipalities, a social worker will also interview you. After the assessment, the C/MSWDO will issue a certificate of eligibility if an I.D. is not readily available, so you can already avail of benefits under The Solo Parent Act.

 

For a complete list of related articles on solo parent issues, click here.

 

Photo by AJ Batac via flickr creative commons