What is actually being punished is not the kidnapping but the deliberate failure of
that person to restore the minor to his parents or guardians.
The crime of Kidnapping and Failure to Return a Minor is not applicable in the case
of Trisha. As we have said earlier, the law explicitly confers to the mother sole
parental authority over an illegitimate child. The lawful exercise of
parental authority cannot be a source of criminal liability.
Ethans father may file for a Petition for the Issuance of Writ of Habeas
Corpus. However, the Petition shall have no leg to stand on. Trisha has the right to
keep her minor son in her custody. A Writ of Habeas Corpus may be issued only
when the rightful custody of any person is withheld from the person entitled thereto.
2. If the child is in the Philippines, the parent left behind may send an
application from the Hague Convention to return Ethan to the
Department of Foreign Affairs or the Consulate - Will it be highly
likely that the DFA or Consulate make an investigation and attempt
for Ethan's return? Or due to the law that the mother has 100%
custody under the age of 7, will this application be forfeited?
Under the Hague Convention, the removal or the retention of a child is to be
considered wrongful when:
a) it is in breach of rights of custody attributed to a person, an institution or
any other body, either jointly or alone, under the law of the State in which the child
was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised,
either jointly or alone, or would have been so exercised but for the removal or
retention.
An illegitimate child is under the sole parental authority of the mother. In the
exercise of that authority, she is entitled to keep the child in her company. Thus,
there is no breach of rights of custody and the Court or the DFA will not deprive her
of custody, absent any imperative cause showing her unfitness to exercise such
authority and care.
We trust that the foregoing adequately address your concerns. Please feel free to
contact us if you need further clarification or assistance.
Thank you and regards.
Very truly yours,
DB LAW PARTNERSHIP
By:
Pablo A. De Borja