by Jeremy D. Morley*

www.international-divorce.com

If a parent takes a child for a visit to the Philippines, whether unilaterally or pursuant to an order issued by a court, and then does not return the child, the left-behind parent will face severe challenges in trying to secure the child’s return.

The usual and best way to secure a child’s return from a foreign country is through the Hague Abduction Convention. 

Although the Philippines is now a party to the Hague Convention on the Civil Aspects of International Child Abduction, the United States has not accepted its accession. and so its terms do not apply to abductions from the United States to the Philippines.

Nor are there any other international or bilateral treaties in force between the Philippines and the United States dealing with international parental child abduction.

Therefore, there is no treaty remedy by which the left behind parent would be able to pursue recovery of the child/ren residing in the United States should they be abducted to or wrongfully retained in the Philippines. 

Once in the Philippines, the child/ren would be completely subject to Philippine law for all matters including custody.

Even if the abduction is from a country that has accepted the Philippines as a Hague Convention treaty partner, the Philippines does not comply with its obligations under the Convention. See my article on The Philippines and the Hague Abduction Convention.

For non-Convention cases in the Philippines, some of the special challenges for any left-behind parent include the following:

• Parental child abduction is not a crime under Philippine law. Custody disputes are considered civil legal matters that must be resolved between the concerned parties or through the courts in the Philippines.

• There is no system in the Philippines to register foreign custody orders or to enforce foreign custody orders. The Philippine courts might take child custody decrees issued by foreign courts into consideration, but they are not required to do anything more than “consider” such decrees.

• The Philippine courts are required to apply the “tender years doctrine” in respect of any child under the age of seven. See Article 213 of the Family Code of the Philippines and Section 363 of the Civil Code of the Philippines.  Evidence to overcome that principle must be exceptional.

• The courts in the Philippines are extremely backlogged and are subject to extreme delays. Indeed, a case will take several years on average. 

• By the time a case is ultimately ready for determination, the child’s circumstances may have become fully settled in the Philippines and the child’s  relationship with the left-behind parent may have been substantially weakened. 

• Corruption risks are high in the Philippine judicial system. 

• The system encourages abducting Philippine mothers to claim domestic violence in any case in the Philippines. 

• A left-behind parent’s pursuit of civil or criminal remedies in the United States may well be counter-productive. 

• Once a custody case is commenced in the Philippines, a travel hold preventing the child’s removal from the Philippines will automatically be in place. 
• While there is an extradition treaty between the United States and the Philippines, parental child abduction is not an extraditable offense. 

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* Author, The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers, published by the American Bar Association. 

Mr. Morley has provided expert evidence in many cases concerning the prevention of international child abduction to the Philippines and other countries and the return of internationally-abducted children.