Title:

Proposed Guardianship Over a Two Year Old Child with

Incarcerated Parents and Surviving Grandparents
Requested by:
Professor Chrysilla Carissa P. Bautista
Date Submitted: March 27, 2015
Questions Presented:
1. Can a non-resident foreign national who is a relative of a two year old Filipino
child obtain guardianship over the latter?
2. If yes, can the foreign national, as guardian, take the minor child out of the
country?
Short answers:
1. Yes. Under the Civil Code provisions and Supreme Court Rules relative to
guardianship and custody of minors, it is possible for a foreign national who is a
relative of a two year old Filipino child to obtain guardianship over the latter.
2. Yes. By virtue of Article 351 of the Civil Code, a guardian over the person of the
minor shall have the same authority over the wards person as the parents and
thus can accompany a child in an international flight.
- The minor is not subject to DSWD travel clearance;
- However, this is qualified by Rule on Custody of Minors and Writ of Habeas
Corpus in Relation to Custody of Minors (A.M. No. 03-04-04-SC) where the
minor child shall not be brought out of the country without prior order from
the court while the petition is pending.
Statement of Facts:
Both parents of a two year old infant girl are incarcerated, the mother is a Filipino
while the father is Dutch. The fathers older sister, also Dutch, is a non-resident foreign
national who wants to take custody of the girl and take her outside the Philippines, to
her home country. The girl is currently in the custody of her grandparents and it appears
that both parents do not want their child to be put under adoption.
Discussion:
1. The general rule is that no mother shall be separated from her mother under
seven years of age.1 This, however, is not absolute and the court can order
otherwise when it finds compelling reasons for such measure.2 In all questions of
care and custody, the childs welfare shall be paramount.3
Grandparents as default guardians of a minor in the absence of parents
A child may be under the care and custody of other persons other than her
parents if the latter are declared to be incapable and unsuited. One instance of
this is when the parents are put in jail and are suffering from the penalty of civil

1 Art. 362, Civil Code of the Philippines.

2 Id.
3 Id.

interdiction.4 When both parents suffer from civil interdiction, their parental
authority is suspended.5
Thus, under Art. 349 of the Civil Codes, several persons may exercise
substitute parental authority in the absence of parents. Two of these qualified
persons are guardians and grandparents. It is however, the grandparents who are
the default guardians in the absence of the parents.6
A relative can be appointed by the court as guardian of the minor
Although the grandparents are in default the guardians of the minor in the
absence of her parents, an interested party can still file a petition in the proper
court to be appointed as guardian. In A.M. No. 03-02-05-SC or the Proposed Rule
on Guardianship of Minors, the aunt is eligible to file the petition though she is a
non-resident foreign national because the rule provides that the petition can be
filed by relative or other person on behalf of a minor and does not qualify
whether such person is residing in Philippines or not.
Also among the grounds for the appointment of a guardian are:
suspension of parental authority or when the best interests of the minor so
require. In our case, there is a suspension of parental authority but such was
automatically transferred to the grandparents by virtue of Article 354 of the Civil
Code. The aunt, however, can put up the ground that her appointment is in the
best interest of the minor. It is significant that her appointment be proved to be
in the best interest of the minor as section 6 of the rules gives preference to the
surviving grandparent.
If and when the aunt is appointed as guardian, she shall have the care and
custody over the person of the minor.7 If the girl is not given up to custody of the
aunt appointed as guardian, the latter can file petition under A.M. No. 03-0404SC or the Rule on Custody of Minors and Writ of Habeas Corpus in Relation to
Custody of Minors. Under the rule, anyone who claims to have rightful custody of
a minor may file the petition. In our case, it is the duly appointed guardian.
2. Article 351 provides that a general guardian or a guardian over the person shall
have the same authority over the ward's person as the parents. Also, under
section 17 of A.M. No. 03-02-05-SC, an appointed guardian shall have the care
and custody of the person of his ward. Thus, if appointed as guardian, the aunt
could legally take the child outside the country. However, this is subject to a

4 Under Act. No. 3815 (Ac Act Revising the Revised Penal Code), civil interdiction shall deprive the offender
during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or
property of any ward, of marital authority, of the right to manage his property and of the right to dispose of
such property by any act or any conveyance inter vivos.

5 Art. 331, Id.

6 Art. 354, id.
7 Section 17, A.M. No. 03-02-05-SC.

court authorization if the petition for custody of the minor is still pending filed
under A.M. No. 03-04-04-SC.8
The minor need not secure a travel clearance from DSWD because as stated in
its website9, a minor traveling to a foreign country with either parent or with his
or her solo parent or legal guardian.

8 Section 16.
9 http://www.dswd.gov.ph/faqs/travel-clearance-for-minors/