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    Dear readers, The summer is going fast as everyone is having fun especially that we just wrapped up the festivities of the 10 days Calgary Stampede.  The weather cooperated in a way where it showered  during the parade but it all went well. I’m sure that the organizers of Calgary Stampede were all happy with an [...]

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Page added on February 24, 2011

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The Philippine Lawyer

-Ferdie Aguirre

(About the writer: G. Ferdinand (Ferdie) Aguirre has more than 20 years of combined experience as a legal professional in the Philippines and in Canada.  After graduating from the Ateneo de Manila College of Law in 1987 and passing the Bar given that year, he has held the following positions in the Philippine Corporate world: Asst. Senior Vice President of the Philippine National Bank, Senior Manager of the Law Division of the Metropolitan Bank & Trust Company and as Chief Legal Counsel of Unibancard.  His private practice included having successfully handled several major cases and being included in the Philippine case books.  Ferdie Aguirre was also a professor of Political Science and Business Law before migrating to Ontario Canada in 2005 where worked as a Paralegal. He is presently a Court Agent & a Commissioner for  Oaths in Alberta and is now working on his admission to the Alberta Bar.  Ferdie Aguirre may be reached at (403) 6131168 /(403) 4747168 or at


Elvie is a live in caregiver in the United States who  fell in love and married  Joel, a plumber from Illinois.  From their relationship was born Raj who was born in 2009.

Unfortunately, the couple had irreconcilable differences and the marriage finally ended up in divorce in Illinois .

In its ruling, the Illinois court dissolved the marriage of Joel and Elvie, awarded to Elvie sole custody of Raj and retained jurisdiction over the case for enforcement purposes.

After the divorce Elvie went home to Manila with Raj.

Joel followed to Elvie Manila where they executed a contract (Agreementlaw ) for the joint custody of Raj. The parties chose Philippine courts as exclusive forum to adjudicate disputes arising from the Agreement.

Later, Joel sued Elvie in the Regional Trial Court of Makati City, Branch 60 (trial court) to enforce the Agreement. Joel alleged that in violation of their Agreement, Elvie exercised sole custody over Raj.

Elvie sought the dismissal of the complaint for, among others, lack of jurisdiction because of the Illinois court’s retention of jurisdiction to enforce the divorce decree.


In this jurisdiction, parties to a contract are free to stipulate the terms of agreement subject to the minimum ban on stipulations contrary to law, morals, good customs, public order, or public policy. Otherwise, the contract is denied legal existence, deemed “inexistent and void from the beginning.”. For lack of relevant stipulation in the Agreement, these and other ancillary Philippine substantive law serve as default parameters to test the validity of the Agreement’s joint child custody stipulations

At the time the parties executed the Agreement on 28 January 2002, two facts are undisputed: (1) Raj was under seven years old (having been born on 21 September 1995); and (2) Joel and Elvie were no longer married under the laws of the United States because of the divorce decree.

The relevant Philippine law on child custody for spouses separated in fact or in law1aw (under the second paragraph of Article 213 of the Family Code) is also undisputed: “no child under seven years of age shall be separated from the mother x x x.”law (This statutory awarding of sole parental custody17cralaw to the mother is mandatory,law grounded on sound policy consideration, subject only to a narrow exception not alleged to obtain here.alaw ) Clearly then, the Agreement’s object to establish a post-divorce joint custody regime between Elvie and Joel over their child under seven years old contravenes Philippine law.

The Agreement is not only void ab initio for being contrary to law as it violates Article 213 of the Family Code, it has also been repudiated by the mother when she refused to allow joint custody by the father. The Agreement would be valid if the spouses have not divorced or separated because the law provides for joint parental authority when spouses live togetherralaw However, upon separation of the spouses, the mother takes sole custody under the law if the child is below seven years old and any agreement to the contrary is void. Thus, the law suspends the joint custody regime for (1) children under seven of (2) separated or divorced spouses. Simply put, for a child within this age bracket (and for commonsensical reasons), the law decides for the separated or divorced parents how best to take care of the child and that is to give custody to the separated mother. Indeed, the separated parents cannot contract away the provision in the Family Code on the maternal custody of children below seven years anymore than they can privately agree that a mother who is unemployed, immoral, habitually drunk, drug addict, insane or afflicted with a communicable disease will have sole custody of a child under seven as these are reasons deemed compelling to preclude the application of the exclusive maternal custody regime under the second paragraph of Article 213.

It will not do to argue that the second paragraph of Article 213 of the Family Code applies only to judicial custodial agreements based on its text that “No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” To limit this provision’s enforceability to court sanctioned agreements while placing private agreements beyond its reach is to sanction a double standard in custody regulation of children under seven years old of separated parents. This effectively empowers separated parents, by the simple expedient of avoiding the courts, to subvert a legislative policy vesting to the separated mother sole custody of her children under seven years of age “to avoid a tragedy where a mother has seen her baby torn away from her.”23cralaw This ignores the legislative basis that “[n] o man can sound the deep sorrows of a mother who is deprived of her child of tender age.”

It could very well be that Article 213’s bias favoring one separated parent (mother) over the other (father) encourages paternal neglect, presumes incapacity for joint parental custody, robs the parents of custodial options, or hijacks decision-making between the separated parents.25cralaw However, these are objections which question the law’s wisdom not its validity or uniform enforceability. The forum to air and remedy these grievances is the legislature, not this Court. At any rate, the rule’s seeming harshness or undesirability is tempered by ancillary agreements the separated parents may wish to enter such as granting the father visitation and other privileges. These arrangements are not inconsistent with the regime of sole maternal custody under the second paragraph of Article 213 which merely grants to the mother final authority on the care and custody of the minor under seven years of age, in case of disagreements.

Further, the imposed custodial regime under the second paragraph of Article 213 is limited in duration, lasting only until the child’s seventh year. From the eighth year until the child’s emancipation, the law gives the separated parents freedom, subject to the usual contractual limitations, to agree on custody regimes they see fit to adopt. Lastly, even supposing that Joel and Elvie are not barred from entering into the Agreement for the joint custody of Raj, Elvie repudiated the Agreement by asserting sole custody over Raj.  Elvie’s act effectively brought the parties back to ambit of the default custodial regime in the second paragraph of Article 213 of the Family Code vesting on Elvie sole custody of Raj.

Nor can Joel rely on the divorce decree’s alleged invalidity in the Philippines, foreigners in this jurisdiction are bound by foreign divorce decrees . It is a settled the matter that an alien spouse of a Filipino is bound by a divorce decree obtained abroad.

(Legal Disclaimer: This article is designed for general information only. The information presented at this site should not be construed to be neither formal legal advice nor the formation of a lawyer/client relationship.)


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