International parental kidnapping: What can left-behind parent do under Philippine laws?

2026-03-17 - 01:13

What if a child — either born abroad or having grown up overseas — is kept in the Philippines by one parent against the wishes of the other? Or what if, at the end of a Philippine vacation, a mother declares that she and the children will not return to the father’s country? What can the Left Behind Parent do in those situations? In the past, it was very little. The inter-country aspect gave the Left Behind Parent few real options as the traditional legal remedies were often futile or required years to resolve. A parent could file a child custody case at a family court, but that adversarial process was unlikely to give speedy results. Now, however, Philippine law incorporates a stronger remedy in the form of an international treaty to which it is a signatory. The Hague Abduction Convention (HAC) was ratified by the Philippines in 2016. Its implementing rules were enacted by our Department of Justice (DOJ) and Supreme Court in 2022. As of this writing, the treaty is in effect between the Philippines and over 50 countries. The HAC aims to protect children from the harmful effects of their wrongful removal or retention through a system of cooperation between countries. It is meant to provide a rapid procedure for the return of a child to that child’s State of habitual residence. Under the treaty, our Department of Justice is tasked to cooperate with other countries for the prompt return of children covered by the HAC. Among the DOJ’s mandates are to locate the child’s whereabouts, prevent harm to the child, seek voluntary return, and encourage an amicable resolution between the parents. However, the Left Behind Parent is not limited to awaiting assistance. He or she may apply directly with the Philippine courts for the enforcement of the treaty and the child’s return to the country of habitual residence. What is the procedure in court? A court case is needed to enforce return if efforts at conciliation fail. The procedure is governed by the Supreme Court’s Rule on International Child Abduction Cases, issued in 2022. The petition must be filed within one year of the child’s wrongful removal or retention in the Philippines. It is a very fast process compared to cases under other Philippine court rules of procedure, one designed to be completed within 90 days of the first court filing. The Left Behind Parent can file a petition for the child’s return with the family court of the city or province where the child may be found. The family court will order the child returned to the country of habitual residence if the treaty applies, allowing visitorial rights for the other parent in keeping with the best interests of the child. Damages may also be ruled against the taking parent. What should be proved in a case of international child abduction? It has to be proved by the Left Behnd Parent that: The child was habitually residing in another country in which the treaty is in effect with the Philippines. The removal or retention of the child constituted a breach of custody rights under the law of that country. The applicant was actually exercising those custody rights at the time of the wrongful removal or retention. What evidence should be presented to the court to prove these requirements? The detailed evidence must be submitted simultaneous with the petition itself, at the very beginning of the case. Under the strict rule, there is a prohibition against submitting additional evidence after the filing of a case. The evidence to prove the necessary elements should include: Documentary evidence Witness testimony in the form of affidavits about the circumstances of the child’s removal or retention. The documents should be translated if they are not in an official language of the Philippines. Public documents from foreign countries should be authenticated in accordance with the Rules of Court. This authentication requirement is imposed by our Supreme Court above the standards set by the treaty itself. Exceptions – The Convention provides for certain instances where the requested country has discretion not to order the return of the child taken from country of habitual residence. These include: If the child is settled in the new environment, although this can only be invoked after the child has already been in the Philippines for over a year. If the Left Behind Parent was not actually exercising custody rights at the time of removal or retention, or had consented or subsequently agreed to the removal or retention. Where there is a grave risk that the return would expose the child to harm or otherwise place the child in an intolerable situation. The authority may also refuse the return if the child objects and has attained an age and degree of maturity at which it is appropriate to take account of the child’s views. Return may also be refused if it would go against human rights and fundamental freedoms. Keep in mind that the exceptions must be proved to be serious because the general rule remains that the return should be ordered by the family court. How does this affect existing Philippine laws and domestic policies? Child custody cases in the Philippines are often determined by the principle of the best interests of the child, as articulated in jurisprudence. However, the HAC makes explicit that the harmful effects of wrongful removal or retention are against the interests of the child. Thus, a court’s reading of a child’s best interest should reflect the Philippine ratification of the HAC. Thus, the Supreme Court’s rule implementing this treaty on international parental kidnapping provides as the general rule that the wrongful removal or retention is not in the best interests of the child. The prompt return of the child is designed to restore the status of the parties which existed before the wrongful removal or retention. The Philippine rule aims to ensure that rights of custody and of access under the laws of the state or country of the child’s habitual residence are effectively respected. The Tender Years Doctrine A crucial point is that the treaty overrides the Tender Years Doctrine of earlier Philippine law, which presumed that young children must remain with the mother. In international parental abduction cases, the court is not deciding who is the better parent; it is only deciding which country has the jurisdiction to decide custody. Thus, unlike the default of previous Philippine law, a mother does not have an automatic right to keep in her custody a child under seven years of age. Does the principle of ‘best interests of the child’ overrule the Philippines’ treaty obligations under the HAC? The treaty should be read as providing a legal standard for what is in the “best interests of the child.” The treaty itself provides for measures explicitly guided by the principle. Under the treaty, the family court is prohibited from making substantive custody decisions in the case. Therefore, only provisional measures in the best interests of the child will be taken by the judge. Courts cannot consider custody or access issues until a return application has been decided. The HAC case is a jurisdictional determination, not a custody merit hearing. The Philippine judge isn’t saying the taking parent, such as a mother, is “bad”; they are saying the Philippine court is the “wrong forum” to determine custody. – Rappler.com Francesco C. Britanico is an experienced lawyer who has won litigation under the Rule on International Parental Child Abduction. He may be contacted at www.lawyerphilippines.org.