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Saturday, August 22, 2009

FAMILY FIX: Being a Judge in a Family Court - Judge Ma. Elisa Sempio - Diy (RTC 225 QC)



This is the talk given by Judge Maria Elisa Sempio Diy of Branch 225, Regional Trial Court of Quezon City during the first anniversary conference of the J. Reuben Clark Law Society - Philippines Chapter last August 22, 2009 in Makati City.


Being a Judge in a Family Court
Judge Maria Elisa Sempio Diy
Branch 225, Regional Trial Court
Quezon City


Good morning. Before I begin my short lecture on the practical side of being a family court judge, let me just say that it is an honor to address a group composed of legal minds that give value to both the supremacy of law and one’s faith in a Supreme Being as their ultimate guide.

My objective with this survey of practical pointers on the procedure in some common family cases is to equip all of us to assist anyone who might be facing an issue or predicament in the family and to allow him/her to have a happy family life or to move on in anticipation of a new family.

As an instrument of the State in portraying the role of parens patriae or the guardian of the rights of the people, it will be a pleasure to any member of the bench to walk you through the following practical pointers:


ADOPTION

The Rule on Adoption (A.M. No. 02-6-02-SC) has the following objectives:

(a) The best interests of the child shall be the paramount consideration in all matters relating to his care, custody and adoption, in accordance with Philippine laws, the United Nations (UN) Convention on the Rights of the Child, UN Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption, Nationally and Internationally, and the Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption.

(b) The State shall provide alternative protection and assistance through foster care or adoption for every child who is a foundling, neglected, orphaned or abandoned.
R.A. No. 9523, enacted on March 12, 2009, provides for a simpler procedure to declare a “child legally available for adoption” as a prerequisite for adoption proceedings. The procedure is now administrative in nature. A petition in the form of an affidavit, subscribed and sworn to before any person authorized by law to administer oaths, shall be filed with the regional office of the DSWD where the child was found and abandoned. The Regional Director shall examine the petition and its supporting documents, shall authorize posting of the notice in a conspicuous place for 5 consecutive days where the child was found, and shall render a recommendation not later than five (5) working days after completion of the posting. Upon finding merit in the petition, the Secretary shall issue the certification applied for within seven (7) working days from receipt of the recommendation. And said certification shall, by itself, be the sole basis for the immediate issuance by the local civil registrar of a foundling certificate. The decision of the Secretary shall be appealable to the Court of Appeals within five (5) days from receipt of the decision by petitioner, otherwise, the same shall be final and executory.

Procedural Pointers:

1. Who may adopt
(1) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude; who is emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his children in keeping with the means of the family. The requirement of a 16-year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee or is the spouse of the adoptee’s parent;

(2) Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided, That his country has diplomatic relations with the Republic of the Philippines, that he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered, that he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country, and that his government allows the adoptee to enter his country as his adopted child. Provided, further, That the requirements on residency and certification of the alien’s qualification to adopt in his country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity;

(ii) one who seeks to adopt the legitimate child of his Filipino spouse;

(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.

(3) The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities.


Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate child of one spouse by the other spouse; or

(ii) if one spouse seeks to adopt his own illegitimate child: Provided, however, That the other spouse has signified his consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other, joint parental authority shall be exercised by the spouses.

2. Venue
SEC. 6. Venue. – The petition for adoption shall be filed with the Family Court of the province or city where the prospective adoptive parents reside.

3. The Hearing
SEC. 14. Hearing. – Upon satisfactory proof that the order of hearing has been published and jurisdictional requirements have been complied with, the court shall proceed to hear the petition. The petitioner and the adoptee must personally appear and the former must testify before the presiding judge of the court on the date set for hearing.

[Note: There shall be no delegation of reception of evidence to the Branch Clerk of Court.]

The court shall verify from the social worker and determine whether the biological parent has been properly counseled against making hasty decisions caused by strain or anxiety to give up the child; ensure that all measures to strengthen the family have been exhausted; and ascertain if any prolonged stay of the child in his own home will be inimical to his welfare and interest.

4. Confidential Nature of Proceedings and Records
SEC. 18. Confidential Nature of Proceedings and Records. – All hearings in adoption cases, after compliance with the jurisdictional requirements, shall be confidential and shall not be open to the public. All records, books and papers relating to the adoption cases in the files of the court, the Department, or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential.

If the court finds that the disclosure of the information to a third person is necessary for security reasons or for purposes connected with or arising out of the adoption and will be for the best interests of the adoptee, the court may, upon proper motion, order the necessary information to be released, restricting the purposes for which it may be used.
[Note: Chambers hearings are common in this regard.]

NULLITY OF MARRIAGE
Statistically, the docket of family courts is overwhelmed with cases under Article 36 of the Family Code. The policy of all family courts throughout the country is to initially exert efforts toward the preservation of marriage. Hence, as a matter of legal practice, lawyers always try to find out the particular judicial temperament of family court judges on the matter of nullity of marriage. Realistically, a favorable decision in the lower court is a good start toward the final invalidation of the marriage. And a good authoritative decision will have a greater chance of affirmance before the appellate court.
Procedural Pointers: (A.M. No. 02-11-10-SC)

1. The Petition for declaration of absolute nullity of void marriages

Sec. 2. Petition for declaration of absolute nullity of void marriages.
(a) Who may file. - A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife.
(b) Where to file. - The petition shall be filed in the Family Court.
(c) Imprecriptibility of action or defense. - An action or defense for the declaration of absolute nullity of void marriage shall not prescribe.
(d) What to allege. - A petition under Article 36 of Family Code shall specially allege the complete facts showing the either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriages at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration.
The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged.
(Emphasis ours)
2. Venue
Sec. 4. Venue. - The Petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing or, in the case of non-resident respondent, where he may be found in the Philippines, at the election of the petitioner.

3. Contents and form of petition
Sec. 5. Contents and form of petition. - (1) The petition shall allege the complete facts constituting the cause of action.
(2) It shall state the names and ages of the common children of the parties and specify the regime governing their property relations, as well as the properties involved.
If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, the custody and support of common children, visitation rights, administration of community or conjugal property, and other matters similarly requiring urgent action.
(3) It must be verified and accompanied by a certification against forum shopping. The verification and certification must be signed personally by the petitioner. No petition may be filed solely by counsel or through an attorney-in-fact.
If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul, or vice-consul or consular agent in said country.
(4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period.

Failure to comply with any of the preceding requirements may be ground for immediate dismissal of the petition.
(Emphasis ours)

4. Motion to dismiss
Sec. 7. Motion to dismiss. - No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or over the parties; provided, however, that any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer.

5. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage
Sec. 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage. -- (a) The court shall issue the Decree after:
(1) Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located;
(2) Registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located; and
(3) The delivery of the children's presumptive legitimes in cash, property, or sound securities.
(b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition.
Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected.

Trend of jurisprudence:

Republic v. C.A. and Molina (G.R. No. 108763, Feb. 19, 1997)

1. Stringent requirements. Burden of proof belongs to plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity.

2. Root cause of the psychological incapacity must be (a) medically or clinically defined, (b) alleged in the complaint, (c) sufficiently proven by experts, and (d) clearly explained in the decision.

3. Juridical antecedence – Existing at the time of celebration of the marriage.

4. Incurability – Must be shown to be medically or clinically permanent; may be absolute or even relative to the other spouse, not necessarily absolutely against everyone of the same sex.

5. Gravity -- Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Mild characteriological peculiarities, mood changes, occasional emotional outbursts cannot be accepted a root causes; must be downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will; there is a natal or supervening disabling factor in the person, an adverse element in the personality structure.

6. Marital obligations embraced by Articles 68 to 71 of the Family Code as regards husband and wife, and Articles 220, 221 and 225 in regard to parents and children.

7. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church, while not controlling or decisive, is given great respect.

8. The prosecuting attorney or fiscal and the Solicitor General shall appear as counsel for the state.


Marcos v. Marcos (G.R. No. 136490. October 19, 2000)

The guidelines incorporate the three basic requirements earlier mandated by the Court in Santos v. Court of Appeals: "psychological incapacity must be characterized by (a) gravity (b) juridical antecedence, and (c) incurability." The foregoing guidelines do not require that a physician examine the person to be declared psychologically incapacitated. In fact, the root cause may be "medically or clinically identified." What is important is the presence of evidence that can adequately establish the party's psychological condition. For indeed, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to.


Te v. Te (G.R. No. 161793, February 13, 2009)

Predictably, however, in resolving subsequent cases, the Court has applied the aforesaid standards, without too much regard for the law’s clear intention that each case is to be treated differently, as “courts should interpret the provision on a case-to-case basis; guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.”

In hindsight, it may have been inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in resolving all cases of psychological incapacity. Understandably, the Court was then alarmed by the deluge of petitions for the dissolution of marital bonds, and was sensitive to the OSG’s exaggeration of Article 36 as the “most liberal divorce procedure in the world.” The unintended consequences of Molina, however, has taken its toll on people who have to live with deviant behavior, moral insanity and sociopathic personality anomaly, which, like termites, consume little by little the very foundation of their families, our basic social institutions. Far from what was intended by the Court, Molina has become a strait-jacket, forcing all sizes to fit into and be bound by it. Wittingly or unwittingly, the Court, in conveniently applying Molina, has allowed diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the like, to continuously debase and pervert the sanctity of marriage. Ironically, the Roman Rota has annulled marriages on account of the personality disorders of the said individuals.


Ting v. Ting (G.R. No. 166562 : March 31, 2009)

In Edward Kenneth Ngo Te v. Rowena Ong Gutierrez Yu-Te, we declared that, in hindsight, it may have been inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in resolving all cases of psychological incapacity. We said that instead of serving as a guideline, Molina unintentionally became a straightjacket, forcing all cases involving psychological incapacity to fit into and be bound by it, which is not only contrary to the intention of the law but unrealistic as well because, with respect to psychological incapacity, no case can be considered as on all fours with another.

By the very nature of cases involving the application of Article 36, it is logical and understandable to give weight to the expert opinions furnished by psychologists regarding the psychological temperament of parties in order to determine the root cause, juridical antecedence, gravity and incurability of the psychological incapacity. However, such opinions, while highly advisable, are not conditions sine qua non in granting petitions for declaration of nullity of marriage. At best, courts must treat such opinions as decisive but not indispensable evidence in determining the merits of a given case. In fact, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical or psychological examination of the person concerned need not be resorted to. The trial court, as in any other given case presented before it, must always base its decision not solely on the expert opinions furnished by the parties but also on the totality of evidence adduced in the course of the proceedings.

It was for this reason that we found it necessary to emphasize in Ngo Te that each case involving the application of Article 36 must be treated distinctly and judged not on the basis of a priori assumptions, predilections or generalizations but according to its own attendant facts. Courts should interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.

Far from abandoning Molina, we simply suggested the relaxation of the stringent requirements set forth therein, cognizant of the explanation given by the Committee on the Revision of the Rules on the rationale of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC), viz.:

To require the petitioner to allege in the petition the particular root cause of the psychological incapacity and to attach thereto the verified written report of an accredited psychologist or psychiatrist have proved to be too expensive for the parties. They adversely affect access to justice o poor litigants. It is also a fact that there are provinces where these experts are not available. Thus, the Committee deemed it necessary to relax this stringent requirement enunciated in the Molina Case. The need for the examination of a party or parties by a psychiatrist or clinical psychologist and the presentation of psychiatric experts shall now be determined by the court during the pre-trial conference.

(Emphasis ours)

But where, as in this case, the parties had the full opportunity to present professional and expert opinions of psychiatrists tracing the root cause, gravity and incurability of a party’s alleged psychological incapacity, then such expert opinion should be presented and, accordingly, be weighed by the court in deciding whether to grant a petition for nullity of marriage.


JUDICIAL DECLARATION OF PRESUMPTIVE DEATH

Applicable provisions:

Article 390, Civil Code - After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.

Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four years;
(3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n)
So as a general rule, no judicial declaration of presumptive death is required because such presumption arises from the law (In re Szatraw, 81 Phil. 461).


Exception: Article 41, Family Code

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

(Emphasis ours)


Judicial declaration of presumptive death is mandatorily required by law to be obtained by the present spouse only for the purpose of capacitating the present spouse to remarry. The judicial proceeding is summary in nature in accordance with Article 253 of the Family Code. For purposes of remarriage, the period of absence to be able to presume an absentee dead has been shortened to a normal period of four consecutive (4) years and two (2) consecutive years, if the disappearance occurred under circumstances described in Article 391 of the Civil Code where the danger of death is high. Such judicial declaration of presumptive death is the best evidence of the “well-founded belief” on the part of the present spouse that the absent spouse is dead. It immunizes the present spouse from being charged with bigamy, adultery or concubinage.

If the absent spouse reappears, such spouse can easily terminate the subsequent marriage by executing a sworn statement or affidavit of the fact and circumstance of such reappearance and recording the same with due notice to the spouses of the subsequent marriage. The subsequent marriage is automatically terminated by the recording in the civil registry of the residence of the parties to the subsequent marriage.

(Sta. Maria, Persons and Family Relations, 2004 ed., pp. 257-258)

Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules.

Characteristics of Summary Proceedings in the Family Code:

1. The petition shall be verified, to assure its truthfulness.
2. Notice of the filing of the petition should always be sent to the respondent at his or her last known address, as part of due process.
3. No periods are set, and it is up to the judge to determine the period within which the respondent should answer the petition and the hearing thereof, which should be very short, considering that the proceedings are summary.
4. There is a preliminary conference wherein lawyers are excluded, since in some cases, they are only obstructions to a compromise between the parties.
5. The appearance of the trial fiscal of the court is not required, since he might just be absent or come unprepared.
6. The preliminary conference should be conducted personally by the judge in the nature of an inquisitional hearing.
7. The proceeding can be decided on the basis of affidavits or other documentary evidence because of its summary nature, and oral testimonies of witnesses will be required only when needed and at the discretion of the court.
8. The case shall be decided in the most expeditious manner and without regard to technical rules.
9. The judgment of the court shall be immediately final and executory.

(Minutes of Code Committee meeting, April 9, 1986)


RECOGNITION OF A FOREIGN DIVORCE

Applicable provisions:
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38. 

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (As amended by Executive Order 227)

Sec. 48. Effect of foreign judgments or final orders.

The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows:

(a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and
(b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title.

In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.


FAMILY MEDIATION

Family law case mediation is a form of alternative dispute resolution in a private forum before a case is filed in court or a court-annexed one whereby an impartial person, a professional, or a judge in a two-court system helps parties define issues and have a plan to deal with them. A family case mediator sits down with people to discuss options and develop proposals to resolve a dispute. The mediator does not take sides. Every party attends the process and they all make the decision. Mediation sessions are confidential.

Among the matters referred for family mediation are custody of minor children and visitation or access; support as well as matters relating to properties of the parties. The law, however, does not allow a compromise on status, future support, ground for legal separation, legitime, jurisdiction, domestic violence and other crimes.


Thank you for your kind attention and good day.



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Friday, August 7, 2009

PERSONAL PICK: Tita Cory's Life and Death is august!



As I turned my television to GMA 7 last August 1 (Saturday), I was deeply saddened by the demise of President Corazon Aquino or Tita Cory early morning that day. I felt unmoved and my eyes were riveted on the tv screen, silently grieving for her death. I shared the same feelings of grief, gratitude and farewell that is felt by her loved ones, friends, and strangers including the hundreds of thousands Filipinos who have gathered at the De La Salle Greenhills gym immediately after her body was brought there for public viewing.

The scenes that followed and the hundreds of articles – news, videos, pictures, blog entries about Tita Cory on tvs, radios, newspapers and the world wide web portrayed her as a religious leader, a loving mother, a forgiving person, a simple woman, and a virtuous president. But while many people made it to the Manila Cathedral and the Manila Memorial or lined the streets and waited on the five-hour cortege from the La Salle Greenhills gym to the Manila Cathedral and the almost nine-hour funeral procession from Manila Cathedral to her final resting place beside her husband Ninoy Aquino at the Manila Memorial Cemetery, I paid my last respects for her in a bit simple, but hopefully not in a less nationalistic way. Without jumping on the bandwagon, I silently revered and paid tribute to her by wearing yellow, the colour associated with the "people power" movement, from August 1 till now and maybe until the ten-day official mourning lapse. Last August 5, I watched the whole funeral procession on tv, videotaping the time she was made to rest and being able to see her face inside the coffin when the camera focused on her for the family’s last viewing. Away from the crowd, I visited her graveyard last August 6, and traversed the same route of the funeral procession from Manila Cathedral to Manila Memorial Cemetery as if re-living the history that had just unfolded. I still saw the flags at half-mast at the Rizal Park and hundreds of yellow ribbons tied to the trees along the way and the hundreds of yellow flowers atop her grave shared with her husband Ninoy. I kept asking myself why I was doing that. And I can honestly say that it is my way of giving back to the woman who has given the country with so much pride and who taught me the idea that it is a privilege to be a “Filipino”. Of all the things that Cory has personified for all Filipinos is the importance of having God over our public and private lives, the importance of prayer as a constant and active part of our day to day experience, and an uncompromising commitment and public accountability for our faith. Like the word “august”, an adjective meaning “marked by majestic dignity”, the demise of the icon of democracy and the reverence shown by Filipinos is just so fitting and a real mark of majestic dignity.