Lasting affection

This is another case involving custody of children where the court used the children’s best interest as the basis for deciding who between the mother and father has the right to their custody. This is the case of Ali, a Muslim and Sally a Catholic.

Before Ali and Sally were married, Sally became a Muslim so they can marry according to the Islamic rites. Thus on February 3, 1988 Ali and Sally were married at a hotel in Manila in a Muslim ceremony. Ali was then 31 years old and a businessman whose work required frequent travels abroad and be in different places most of the time, while Sally was only 20 years old, scion of a well to do family. At the time of their marriage Ali was still married to a Saudi woman whom he divorced after marrying Sally.

Initially, the couple stayed with Sally’s family in Makati as Ali attended to his business. Later on the couple migrated and settled in Jeddah, Saudi Arabia where they begot two children, Abdul, born on June 13, 1989 and Farah, born on September 29, 1990. They stayed in Jeddah for two years, but by 1995, Sally and the two children went back to Manila. The children lived in the house of Sally’s mother in Ayala, Alabang where Ali used to visit them. In December 1996, Sally was re-converted to Catholicism and had their children baptized as Catholics.

Even before that or on March 11, 1996, Ali filed with the Shari’a District Court an action to obtain custody of his two children. He alleged that Sally was not fit to be entrusted with the custody of their children because she was continually going out and leaving their children hungry. She was seen with different men at odd hours wearing clothes detestable under Islamic laws.

After filing her answer, an order was issued by Shari’a court granting a writ of preliminary injunction enjoining Sally to desist from preventing Ali to exercise parental authority over their children. Then on March 2, 1999 Sally filed a motion to dismiss on the ground of lack of jurisdiction over the subject matter since she and her children are no longer Muslims. Ali opposed the motion contending that at the inception of the case on March 11, 1996 both parties were Muslims, himself by birth and Sally by conversion. Sally reconverted to Catholicism only in December 1996, Ali said.

The Shari’a court denied Sally’s motion and proceeded to hear the case on the merits. Ali submitted his evidence ex-parte in view of the non-appearance of Sally and on the basis of said evidence it rendered a decision on November 16, 1999 granting custody of the children and ordering Ali to support them and provide for their physical, mental and moral development.

The court found Sally unworthy to care for her children applying the Muslim law which says that when a woman engages in “zina” (illicit sexual relations) and continually goes out, leaving her children, she is not worthy to be trusted with the custody of her children. On the other hand, the court also found that Ali was capable both personally and financially to look after the best interest of his minor children. Was the court correct?

No. The Muslim moral laws are no longer binding on Sally. The standard in determining the proof on whether a woman is competent to care for her children, should not be restricted to Muslim laws. What determines Sally’s capacity is the standard laid down by the Family Code (FC), now that she is no longer a Muslim. Although there is a need for the children to have both father and mother, either party may lose parental authority over the children because of their voluntary separation, taking into consideration the circumstances that would show which parent can better take care of their children.

In this case, Sally has more capacity and time to see to the children’s needs. She is equally financially capable of providing for all the needs of her children paying their tuition fees in an exclusive school. Ali on the other hand has work that requires him to go abroad and be in different places most of the time. Besides under PD 603, the custody of minor children, absent any compelling reason, is given to the mother.

However, the award of custody to the wife does not deprive the husband of parental authority. Even when the parents are estranged and their affection for each other lost, the attachment and feeling for their offspring invariably remain unchanged. Thus Ali should also be granted visitorial rights at least once a week and may take them out with the written consent of Sally (Artadi-Bondagan vs. Bondagan et. al. G.R. 140817, December 7, 2001).

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Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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