Child Support Policy for Separated Families

Introduction
Child support is a basic right. The Constitution protects the right of children to
support and assistance, including proper care and nutrition, and special protection
from all forms of neglect.
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The Family Code protects the right of children to
receive support from their parents, grandparents, other legitimate ascendants,
brothers, and sisters.
2
The ules of Court and various special rules provide
remedies to obtain child support.
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The evised Penal Code even punishes the
failure of a parent to give a child the education according to his station in life and
financial condition.
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#o$ever, obtaining child support is still a challenge for many separated families.
First, many fathers have not yet voluntarily recogni%ed their illegitimate children,
so the children still have to see& paternal recognition first before they can demand
for support. Second, court actions often ta&e years and cost thousands of pesos, so
families often resort to self'help instead of fighting for the child(s right to support
through the courts. Third, millions of parents $or& and live abroad or far from
home, so enforcement of child support payments is difficult for lac& of )urisdiction
over the non'custodial parent or for lac& of administrative enforcement over child
support payments. Fourth, child support collection is often delayed and
insufficient because child support enforcement is often $ea& and penalties for non'
compliance are seldom implemented. *ecause court actions are slo$ and
e+pensive and many parents no$ $or& overseas, remedies for obtaining child
support should favor voluntary processes, faster administrative support, and
enforceable agreements.
This paper on child support policy is organi%ed into three parts, family la$,
remedial la$, and private international la$. The Family Code provides the
substantial la$ on child support and ans$ers the -uestions on $hat is child
support, $ho is entitled to it and obliged to give it, $hen is it due, ho$ much is
demandable, etc.
emedies to obtain child support can either be e+tra)udicial or )udicial, $hich can
either be civil or criminal. .+tra)udicial remedies rely on the initiative of family
1 Constitution, /rticle 01, Section !213
2 Family Code, /rticle 145
! ules of Court, ule 61
" evised Penal Code, /rticle 277
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members, employers, concerned individuals, local government units, and
administrative agencies. 8udicial remedies are provided in the Family Code, ules
of Court, evised Penal Code, Child and 9outh :elfare Code, /nti'1iolence
/gainst :omen and their Children /ct, and other special la$s and rules protecting
children.
Private international la$ $ould apply $hen Filipino children $hose parents live
and $or& overseas see& child support, especially on the issues of )urisdiction and
enforcement. eform on Philippine child support policy is necessary if the
Philippines $ants to ratify the international conventions on child support and to
pass a divorce la$ to ensure that the best interests of the child are protected.
:hat is Child Support;
The Family Code, as amended by epublic /ct <o. 6=>4, provides that
emancipation ta&es place at the age of ma)ority, $hich commences at the age of 1=
years. The Convention on the ights of / Child defines a child as every human
being belo$ the age of 1= years.
Support comprises everything indispensable for sustenance, d$elling, clothing,
medical attendance, education and transportation, in &eeping $ith the financial
capacity of the family.
?inds of Child Support
Tolentino distinguishes that natural support is absolutely indispensable for
subsistence, $hile civil support is necessary for the recipient to live and maintain
himself in accordance $ith his condition and circumstance. :hile the Civil Code
provides that support must be @according to the social position of the family,A the
Family Code has changed the standard to @in &eeping $ith the financial capacity of
the family.A
The Family Code has included transportation as part of support, $hich implies that
transportation is not part of sustenance. Beans of communications could also be
included in support.
:ho is Cbliged to Dive Support;
Parents, grandparents, other ascendants, brothers and sisters are obliged to support
a child. The Family Code sets the order that family members are obliged to support
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a child. /scendants are called to support their descendants before brothers and
sisters are called to support each other. The Family Code binds illegitimate
brothers and sisters to support each other e+cept $hen the need for support of the
sibling $ho is of age is due to the claimantEs fault or negligence.
Since the provisions on support ma&e more family members liable for supporting a
child and since Filipino households tend to have more e+tended families instead of
nuclear families, more members of the family give support to a child before
demand for support is made on a non'custodial parent. Family members related by
blood to the custodial parent $ill e+haust all their means first before they demand
child support from the other parent. The e+haustion of resources of the family of
the custodial parent $or&s best if the family is $ell'to'do and rich or if the family
lives in rural areas. #o$ever, nuclear households, single'parent families, and urban
households have increased so reliance on e+tended families and their support could
have diminished.
Femand for Support
Prices of basic commodities, housing, clothing, medical fee, tuition, educational
fee, and transportation have greatly increased in comparison to $ages. Bany
parents are no$ $or&ing overseas to earn more for their families since $ages in
the Philippines cannot &eep up $ith rising prices of goods and services.
Cverseas Filipino $or&ers no$ number around 1> million, and they send billions
of pesos of remittances every year. If all overseas Filipinos send sufficient support
timely and regularly, enforcement of child support for such families $ould no
longer be necessary. #o$ever, there have been many cases $here the overseas
parent has been remiss in sending support, so the childEs $elfare could suffer even
if the family has the means to sustain the child. This situation usually happens
$hen the family in the Philippine has limited means of livelihood and relies on
overseas remittances as their main income.
The child $hose parents are separated, $hether legally separated or de facto
separated, $ould also have to as& for support from the non'custodial parent. The
Family Code provides that the obligation to give support may be fulfilled by
paying a fi+ed allo$ance or by receiving and maintaining the child in the family
d$elling. The non'custodial parent only has the option of paying the fi+ed
allo$ance.
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*esides higher costs of living, another reason to as& for child support is to hold the
non'custodial parent responsible for his duties and obligations to his child.
Financial support is only a part of the many responsibilities of a parent to a child,
but support is vital to sustain the childEs rights to survival and development.
Sufficient child support can be the difference bet$een life and death for children
living in poverty. #olding parents accountable for child support $ould greatly ease
the burden of the state to protect the $elfare of children and to ensure that children
survive and develop into $ell'functioning citi%ens.
/mount
:hile the things included in support are clear and determinate, the amount of
support $ould differ because the court that grants support $ould have to consider
the financial capacity of the family and the best interests of the child. #ence, a
court $ould have to consider the peculiar circumstances of each case in a$arding
child support. Gnbridled discretion $ould be fine if all family court )udges $ere
unbiased and trust$orthy, and all litigants and counsels $ere honest, forthcoming,
and fair.
Separated Families
Separated and illegitimate children have to as& their non'custodial parent for
support $hen many legitimate children $ho live $ith their parent do not have to
do so. Separated children, $hether legitimate or illegitimate, can only as& for a
fi+ed allo$ance from the non'custodial parent, unless that parent has )oint custody
over the child and there is no legal or moral obstacle to child living in his home.
Children can also have problems communicating $ith their parents, especially if
the parents are un$illing or unable to spea& or $rite to their o$n children. Parents
$ho live and $or& overseas can be costly and challenging to reach by phone or
through the internet, especially if the children are young and not yet educated and
the family has limited financial and educational capacity.
Illegitimate Children
Illegitimate children also have more problems than legitimate children in as&ing
for support because they must validly establish their paternity or filiation first
before they can see& support. .ven if they have validly established their paternity
and filiation, they have less priority in the property regime if one parent is validly
married to another person $ho is not the other parent. If there is no marriage
settlement providing for the property regime, the default property regime is
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absolute community of property for marriages celebrated during the effectivity of
the Family Code and con)ugal partnership of gains for marriages celebrated before
the effectivity of the Family Code. Illegitimate childrenEs support must first come
from the separate property of the parent and if it is insufficient, the absolute
community or con)ugal partnership $ould be liable for support. #o$ever, all
children have the same basic needs so the separation and illegitimacy of a child
puts him at a great disadvantage to obtain support.
Proof of Paternity and Filiation
Hegitimate children do not have problems in proving paternity and filiation
because the la$ provides that children born or conceived during a valid marriage is
legitimate, unless this legitimacy is directly challenged in a )udicial action.
The problem of proving paternity and filiation normally arises for illegitimate
children. If the father signs the bac& of the birth certificate and attests that he is the
father of the illegitimate child, the proof for the paternity of the child is already
met. If the father $as unable to sign the birth certificate, he can still voluntarily
signify that he is the father of the illegitimate child by attesting such fact in a
public document or in a private hand$ritten instrument signed by him.
The problem in proving paternity arises $hen the father refuses to recogni%e the
child or contests the alleged paternity. In the Philippines, the child $ith the help of
his guardian must file a civil action for compulsory recognition and support. The
plaintiff must prove paternity by the open and continuous possession of a status of
an illegitimate or by other measures allo$ed by the ules of Court and special
la$s. In a number of cases, the Supreme Court has approved the use of
deo+yribonucleic acid 2F</3 testing to prove paternity and filiation. Cn the other
hand, blood tests and other biological means can be used to disprove paternity and
filiation. #o$ever, F</ testing is not automatically ordered and permission for
F</ testing is al$ays made my motion.
In other )urisdictions, child support agencies are mandated to use all possible
means to prove the paternity and filiation of illegitimate children. *iological
testing, including F</ testing, are routine procedures in $ell'developed child
support agencies. In Scandinavian countries, if the father does not voluntarily
affirm the paternity of the child, the state files an action on behalf of the
illegitimate child to determine the paternity. The state e+hausts biological testing,
such as F</ testing, to determine paternity and compels the mother to testify as to
$ho is the father of her child.
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Femand for Support
Support is demandable from the time the child needs it for maintenance $hich
could be as early as his birth or the motherEs pregnancy. #o$ever, support shall
not be paid e+cept from the date of e+tra)udicial demand. #ence, a child or his
custodial parent or guardian must still as& the non'custodial parent for support if no
support $as given or forthcoming from him. / demand for child support may be in
any form since the la$ does not specify the form. #o$ever, a $ritten demand for
support may be easier to prove in court. Children are entitled to support from their
parents, grandparents, other ascendants, brothers, and sisters. #o$ever, illegitimate
children must first establish their illegitimate paternity or filiation before they can
as& for support from their father.
/fter a child as&s for support either e+tra)udicially and the non'custodial parent is
still un$illing to give support or such support is insufficient despite the financial
capacity of that parent, the child as represented by his parent or guardian may file a
civil action for support and apply for the provisional remedy of support pendent
elite.
If the father has committed a violation against the mother of the child under ./.
4262 or the /nti'1iolation /gainst :omen and their Children 2/nti'1/:C3 /ct,
the mother may file a criminal action and civil action in court and file for a
barangay protection order. efusal to give financial support or $ithholding the
allo$ance of a child may be grounds for economic abuse under the /nti'1/:C
/ct.
If the non'custodial parent has committed crimes against the child under the
evised Penal Code, the Child and 9outh :elfare /ct, and Special Protection
/gainst Child /buse, .+ploitation and Fiscrimination /ct, and other penal la$s,
the child may file a criminal action against that parent. efusal to give child
support may come under neglect of a child under these penal la$s.
Cptions to Dive Support
/ parent fulfills his obligation to give support to his child by paying the allo$ance
fi+ed or by receiving and maintaining the child in the family d$elling. esearchers
in other countries -ualify further the forms of child support into formal, informal,
in'&ind, and custody. Formal child support is ordered and fi+ed by a court or
administrative agency to be paid by a non'custodial parent. Informal child support
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is monetary support voluntarily given by a non'custodial parent $hen there is no
formal support or in e+cess of such formal support. In'&ind child support is non'
monetary support given by a non'custodial parent to a child, $hich may include
food, clothing, toys, vacations, tuition, boo&s, etc. Custody as a form of child
support means receiving or maintaining a child in his o$n home.
In other )urisdictions, formal child support is generally reduced if there is )oint
custody. Formal child support is sub)ect to change and never attains finality
because the circumstances of the child or the parent may change. In states $ith
e+tensive $elfare agencies, the non'custodial parent sends the amount of financial
support to the child support agency, $hich gives the appropriate support to the
custodial parent. The child support agency is subrogated to their rights of custodial
parents to collect support and file actions against delin-uent parents.
In the Philippines, the non'custodial parent must pay formal support to the
custodial parent $ithin the first five days of the month $hen support is needed.
The custodial parent must provide evidence of the e+penses of the child. For
informal and in'&ind support, the amount and &ind of support $ould depend on the
non'custodial parent.
.+tra)udicial emedies
The Family Code provides that child support shall not be paid e+cept upon )udicial
or e+tra)udicial demand. #ence, the la$ provides t$o &inds of remedies, )udicial
and e+tra)udicial. *ecause of the congestion of court doc&et, parents should try to
e+haust e+tra)udicial remedies to obtain child support.
The simplest remedy is for the child or guardian to as& in $riting for the non'
custodial parent to give support. If the parent agrees to give support, the child or
guardian should be ready $ith a list of e+penses for the parent to support. *eing
prepared $ith an amount ma&es it easier for a child to as& and negotiate for
support. Sending money is no$ faster and more convenient because many ban&s,
remittance centers, and courier services in the Philippines offering money
remittance services. :hile some remittance services cost more than ban&s, not all
Filipinos have ban& accounts so remittance centers are more accessible.
:ith the consent of the non'custodial parent, the guardian can also as& the
employer to send the money directly to the person $ith custody of the child.
Bilitary personnel can also provide for an allotment or fi+ an amount from their
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salaries to be sent directly to the ban& account of a dependent, $hich could be hi
parent, spouse, or child.
If the child and custodial parent live in the same barangay as the non'custodial
parent, the child and guardian can see& barangay conciliation and mediation to fi+
the amount of support. :hile future support is not sub)ect to compromise, the
amount of support and support in arrears may be validly compromised. #o$ever,
barangay conciliation and mediation is no longer necessary $hen the child intends
to file an action $ith application for support pendente lite because actions $ith
provisional remedies are not re-uired to undergo barangay conciliation.
In other )urisdictions, child support agencies have -uasi')udicial authority to hear
and decide child support cases. These agencies can often be better than courts in
because they have speciali%ed &no$ledge and e+perience, undergo e+pedited
proceedings, and offer better access to indigent families.
Civil emedies
Civil remedies for child support include an action for support $ith application for
the provisional remedy of support pendente lite. The follo$ing civil actions may
include an application for support pendent lite, annulment of marriage, declaration
of nullity of marriage, legal separation, )udicial separation of property, habeas
corpus, child custody, etc.
The childEs mother may file civil and criminal actions against the father if there are
violations based on the /nti'1/:C /ct, $hich includes economic abuse. The
plaintiff may see& temporary and permanent protection orders and apply for
support pendente lite. If there is physical violence or threat of violence, the mother
may also see& a barangay protection order before filing an action in court.
Criminal /ction
The child may file criminal actions against the non'custodial parent for neglect
under the evised Penal Code, the Child and 9outh :elfare /ct, and Special
Protection /gainst Child /buse, .+ploitation and Fiscrimination /ct, and other
penal la$s.
/ victim of rape or other crime $ho has given birth to a child $here the accused is
the father should file a criminal action and see& child support. Proof of the rape or
crime should include the proof of paternity. If the court convicts the accused and
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finds that he is the father of the child, the accused is obligated to support the child,
even though he $ould not have parental authority.
Three bills in Congress, t$o in the Senate, one in the #ouse of epresentatives,
see& to criminali%e the failure of a parent to give a certain amount of child support.
These bills are meant to provide teeth on the failure of enforcing child support,
even though failure to give support is already punishable as neglect and child abuse
under penal la$s and child $elfare la$s.
#ague Convention on Child Support
The Philippines is not a signatory to the #ague Convention on Child Support, but it
is a signatory to the #ague Convention on Private International Ha$. This is. good
thing because the Philippines can still create an administrative policy and improve
the enforcement for child support. :hile other countries have administrative
agencies that deal $ith child support, the Philippines relies on the courts. :hile $e
have family courts that speciali%e on child support cases, $aiting for child support
enforcement can ta&e years. Fisobedience to child support payments are liable for
contempt, but this is discretionary $ith )udges.
:e need a child support la$ to supplement the provisions of the Family Code and
an administrative agency that could assist people $ho $ant e+tra)udicial measures
of obtaining child support before $e could sign and ratify the #ague Convention
on Child Support.
eform
Improving child support enforcement means reducing the effort, time, and cost in
obtaining child support. The state should improve administrative remedies in
obtaining child support. <on'custodial parents should have a fi+ed amount $hich
is automatically remitted by the employer directly to the child, custodial parent, or
guardian. Cverseas Filipinos should be held responsible for child support by
serving summons over their person or by a government or diplomatic agency.
Family court )udges and child $elfare agencies should use guidelines in setting
child support so that decisions are consistent. Fecisions should be timely.
Conclusion
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