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Art. 210. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law.

(313a) Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. (n) No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. In custody disputes, what is the paramount criterion? The paramount criterion in custody disputes is the welfare and well-being of the child, or the best interest of the child. The court, in arriving at its decision as to whom custody of the minor should be given, must take into account the respective resources and social and moral situations of the contending parents. Nevertheless, this primordial rule can override the rights of one or both parents over their children. What is the general rule as to custody over children? The general rule is that a child under seven years of age shall not be separated from his mother, which is based on the basic need of a child for his mothers loving care. Article 213 of the Family Code provides that [n]o child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. This is more pronounced in case of illegitimate children, as the law expressly provides that illegitimate children shall be under the parental authority of their mother. Is this rule absolute? This rule is not absolute. Even a mother may be deprived of the custody of her child who is below seven years of age for compelling reasons. Instances of unsuitability are neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable illness. Negligent and careless failure to perform the duties of parenthood is a significant element of abandonment, regardless of actual intention. A strong basis for a finding of the parents abandonment of his or her child is found in the case where the parent has left the child permanently or indefinitely in the care of others, given it to another, or surrendered it entirely. I left my child to a relative, even signing a document to such effect. Am I barred from taking back my child?

Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a childrens home or an orphan institution. When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same. The rule is that children older than 7 years old are allowed to state his preference. Is the court bound by such preference? While such choice is given respect, the court is not bound by that choice. The court may exercise its discretion by disregarding the childs preference should the parent chosen be found to be unfit, in which instance, custody may be given to the other parent, or even to a third person. Decisions on custody of children are always open to adjustment as the circumstances may warrant. The Domestic Adoption Act of 1998, R.A. No. 8552, in Section 3, paragraph (j), defines simulation of birth as:

the tampering of the civil registry making it appear in the birth records that a certain child was born to a person who is not his/her biological mother, causing such child to lose his/her true identity and status.

Simulation of birth is punishable under Article 347 of the Revised Penal Code and Section 21 (b) of the Domestic Adoption Act. The latter provision says:

Any person who shall cause the fictitious registration of the birth of a child under the name(s) of a person(s) who is not his/her biological parent(s) shall be guilty of simulation of birth, and shall be punished by prision mayor in its medium period and a fine not exceeding fifty thousand pesos (P50,000.00).

Previously, however, under Section 22 of the Domestic Adoption Act, the parents could legitimize the relationship by formally adopting the ampon and asking for Rectification of Simulated Birth at the same time, and

by doing so, avoid criminal liability as well. Section 22 states:

Rectification of Simulated Births. A person who has, prior to the effectivity of this Act, simulated the birth of a child shall not be punished for such act: Provided, That the simulation of birth was made for the best interest of the child and that he/she has been consistently considered and treated by that person as his/her own son/daughter: Provided, further, That the application for correction of birth registration and petition for adoption shall be filed within five (5) years from the effectivity of this Act and completed thereafter: Provided, finally, That such person complies with the procedure specified in Article IV of this Act and other requirements as determined by the Department (of Social Welfare and Development).

The Domestic Adoption Act of 1998 which was signed into law on February 25, 1998 and which took effect on March 22, 1998, provides for an amnesty from pecuniary and penal sanctions for those who have been falsified the birth certificate/s of minor/s in their custody through the registration of a simulated birth certificate.

Since CY 1998 to CY 2001, only a total of 364 applicants have availed of the amnesty against the estimated number of those who simulated the birth registration of minors.

The trouble lies in the periods of time fixed by the law. Since R.A. No. 8552 took effect on 22 March 1998, this means that:

The low number of applicants can be attributed to the unreadiness of the parents to legalize the adoption and their ambivalence to tell the child of his/her legal status. Also, it was known that parents complained about the tedious process in the rectification of the simulated birth. Further, the public has misconception towards the amnesty provided by law. In view of the above, educating and informing the public on the facts of rectification of the simulated birth requires time, effort and money. For those who falsified birth certificates, the amnesty period given to them will expire in March 2003. Considering the time left between now and the expiry date, the information dissemination efforts of the concerned agencies to encourage the people to avail the amnesty may [be] ineffective. Hence, an amendment seeking the extension of the deadline is hereby proposed. It is important that this proposed bill extending the deadline for the rectification of simulated births to March 2008 or ten years from March 1998, the effectivity date [of] RA 8552, be passed by Congress to allow [those] who wish to avail of the amnesty to comply with the provisions provided by law and to have the opportunity to fully enjoy the benefits of a legally adopted child. It appears that nothing happened to Senate Bill No. 1409. Assuming that Sen. Pangilinan will re-file it during the current Congress, he will have to seek an even longer extension. The re-filed bill should also be made applicable for simulated births done after March 1998. Meanwhile, parents may have no choice but to continue with the charade and privately grapple with the dilemma over the real status of their ampons.

Simulated births made after 22 March 1998 may not be rectified; and The five-year period for filing a Petition for Adoption with Rectification of Simulated Birth ended in March 2003.

In his proposed Senate Bill No. 1409 (filed during the 13th Congress), Sen. Francis Pangilinan sought to extend the period to allow parents to file for adoption and rectification of simulation of birth for another five (5) years after March 2003, or up to March 2008. The Explanatory Note of Senate Bill No. 1409 says: It is a fact that most adoptions in the Philippines have been and continue to be handled through simulation of birth. It is estimated that there are several hundred thousand Filipinos who have been informally adopted in this manner. I[n] these cases, because the assumed filiation under simulated births has no legal basis, the child is deprived of the benefits and legal adopted children.