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Custody of a baby after an annulment

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1 Custody of a baby after an annulment on Sun Nov 08, 2015 4:27 am

schnulli


Arresto Menor
Hello,


my fianceé gave birth in September.
I signed in the birth certificate that Iam the father  and the mother confirmed it also.
Our common daughter has my surname.
Actuallyall good.

But the german embassy ( Iam a German citizen ) is making problem.
They said  I might be the biologcal father but because the annulment of my fianceé was less then 300 days before she is giving bith Iam not the father in the sense of law.
That is Art 168 of the Philippine family law.

For to become the father in the sense of law I have to go the court.
I heard that could take between 1 and 2 years.
Of course I don`t want to live so long without my little daughter.( and her mother )

Here now my question  :
Is that correct that my fianceé has the full custody of our daughter ?
Or has also the " father in the sense of law " a custody ?
Actually he is already married since 2006 and lives with his wife in Mindanao ( my fianceé is living in Luzon)

Is it possible that  I adopt my daughter ( without to involve the other " father " ) ?

It would be great if you can anwser that questions !!
Salamat !



Last edited by schnulli on Sun Nov 08, 2015 4:31 am; edited 1 time in total (Reason for editing : some mistakes)

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2 Re: Custody of a baby after an annulment on Sun Nov 08, 2015 5:31 am

Lunkan


Reclusion Perpetua
"They said  I might be the biologcal father but because the annulment of my fianceé was less then 300 days before she is giving bith Iam not the father in the sense of law."
It's a some unmodern law. The husband is counted as biological father automaticly.

"Is that correct that my fianceé has the full custody of our daughter ?"
Yes.

LOCK UP!   Having sex with a still married Filipina is a rather serious crime in the Philippines - when someone bother, so don't annoy the "father" or anyone else.
It's a crime by your fiancee too.

The rest I don't know, but the mother have full costudy after the annulment, which PERHAPS can make the "father" don't need to be involved in an adoption.

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3 Re: Custody of a baby after an annulment on Sun Nov 08, 2015 6:47 pm

schnulli


Arresto Menor
Salamat po for the answer !

"LOCK UP!   Having sex with a still married Filipina is a rather serious crime in the Philippines - when someone bother, so don't annoy the "father" or anyone else.
It's a crime by your fiancee too "

I have not known that it is a crime in the Philippines but in our case I don`t see there any problem.
because her ex is married again since 2006  without any annulment before.
He also married another woman before he married my fianceé in 1999. So actually there marriage was invalid.

Back to the full custody :
Do you know which article of the family law is giving my fianceé the full custody ?
Is it possible to get may me a document which shows that she has the full custody ?

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4 Re: Custody of a baby after an annulment on Sun Nov 08, 2015 9:59 pm

Lunkan


Reclusion Perpetua
"I have not known that it is a crime in the Philippines but in our case I don`t see there any problem.
because her ex is married again since 2006 without any annulment before"
That reduce the risk much, but there is still a risk someone ELSE can use it against you and your fiancee.

"He also married another woman before he married my fianceé in 1999. So actually there marriage was invalid."
Oh! I suppouse that made the annulment much easier.
AND if the marriage was INVALID, then that's an argument for
NOT counting the ex as "fader",
and for you didn't make a crime, because she wasn't REALY married. But I don't know if the Philippine justice system see it that logic Smile
PERHAPS it can help make you the OFFICIAL BIOLOGICAL father too, but perhaps that more ciomplicated than get adoption. I have no idea.

"Do you know which article of the family law is giving my fianceé the full custody ?
Is it possible to get may me a document which shows that she has the full custody ?"
I don't know which article, but as long as the mother isn't found to bad, she het the custody when the child is up to 7 years old. So PERHAPS the annulment document is enough to show she has custody, I don't know. At least it's a hint she has the custody if someone question it.

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5 Re: Custody of a baby after an annulment on Tue Nov 17, 2015 6:46 am

schnulli


Arresto Menor
I still try to found out if my fianceé has really the full custody.

Actually everybody said she has the full custody   but nobody can tell me which article is saying that.

I read in the Family law but I haven`t found anything which confirms her full custody.

No I found just that :
Art. 63 ( 3)  The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and

Art. 213 :   In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. (n)

Ok our case is a bit different because my fianceé was not married when she gave birth. But I have not found any article which said that she has the full custody.

Any idea ?

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6 Re: Custody of a baby after an annulment on Tue Nov 17, 2015 7:16 am

Lunkan


Reclusion Perpetua
"The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit."
I haven't read any law saying it, but it's NORMAL the court give the custody to the mother when the child is up to 7,
except if the court find her unfit.

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7 Re: Custody of a baby after an annulment on Tue Nov 17, 2015 7:18 pm

marlo


Reclusion Perpetua
If you were NOT married to her even if she's your fiancee, then the child is illegit child.

If you were married to her but her marriage was not annuled yet, still your child to her is an illegitimate child of her. The basis was the subsisting marriage which was not annulled yet (and not your marriage).

Your affiliation to the illegit child is recognized by you according to what you have said. This makes you the bio father.

Full custody and full parental authority goes to mother unless court finds compelling reasons to take away custody of illegit child from the mother. Refer to Art 176 I think.

Your may also petition for you visitational rights of your child.

Her "first" husband may file adultery case against mother of child. I think you would be jeopardized on this. If you were married to her, "first" husband may file bigamy case too. Jail term and bailable.

You may seek an attorney for legal advise.

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8 Re: Custody of a baby after an annulment on Tue Nov 17, 2015 8:11 pm

Lunkan


Reclusion Perpetua
marlo wrote: Her "first" husband may file adultery case against mother of child. I think you would be jeopardized on this.  If you were married to her, "first" husband may file bigamy case too. Jail term and bailable
And foreigners risk deportation too.

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9 Re: Custody of a baby after an annulment on Tue Nov 17, 2015 8:53 pm

schnulli


Arresto Menor
[quote="Marlo"][/Full custody and full parental authority goes to mother unless court finds compelling reasons to take away custody of illegit child from the mother. Refer to Art 176 I think. ]


Thanks for the answer !
I checked the Art 176 but it just says that the mother has full custody if the child is illegitimate.
But thats the question in this case.

The annulment was in Mar 2o15 and she gave birth in September 2015
According Art 169 the ex-husband is the father of my daughter.

The  question is just  :  Is my daughter HIS legitimate child ?
And the most important question :  Has he also custody ???

About the bigamy :
The only person to blame is her Ex
He married my fianceé in 1999 and just a short time before he married another woman.
And again in 2006

We are engaged since 2013 and we would be married allready if the annulment have not taken so much time.

We also asked 2 lawyers.
They said it is no problem .. The court will confirm that  I am the father...That is very sure.
But it might take between 1 and 2 years.
Thats really too long.

If we are sure that my fianceé has the full custody then she can bring our daughter to Germany.
With a marriage visa.
We would marry here and will fix also the fathership problem

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10 Re: Custody of a baby after an annulment on Tue Nov 17, 2015 10:23 pm

marlo


Reclusion Perpetua

What is your intention? What are your prayers? Do you want to file criminal case against your fiancee? or her husband? Was it taking full custody only of your child? Was it adopting your child? Was it filing nullity of your marriage? Was it filing annulment of her marriage to her first husband? Which one is it?

Mind you, but seems to me that you're confused. Your statements now had new "addons" unlike your previous statements. New specifics had been mentioned now which would have reverse effect on the advise given earlier.

If you keep adding details every reply now and then, tendency is, you get different advises for every change of statements you would make or would add. In the end, it's messed up and you are just adding up confusion to yourself.

If you may, establish your intentions first to avoid confusion from anyone. If the intention is clear, then big chance is you get a clear answer.

What is your intention? That is the question.

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11 Re: Custody of a baby after an annulment on Tue Nov 17, 2015 10:54 pm

schnulli


Arresto Menor
I am sorry , I don`t want to confuse anybody !!
I thought my intentions are clear.

I want that my fianceé and our common child will come as soon as possible to me to Germany !

For to take my fianceé we applied already for a marriage visa. It will take some months. With that she can come to Germany.
But of course she can`t come without our daughter. She is now just 2 months old.

For to take our daughter we have 2 ways.
I can file for the fathership. But it  will take probably between 1- 2 years.
Then our daughter would get a german passport by the embassy.
Thats  actually a very nive way but 1-2 years is too long.

The other way : My fiancée will apply for our daughter a family reunion visa and can take her with her when she comes . But that is just possible if she has full custody of our child. Otherwise the " father" has also to appear in the embassy.


Thats the reason that the full custody is very important !

I asked allready the German embassy but they want to see first all the documents for to give their opinion. Actually they have already all the documents because my fianceé give it when she applies for the visa. But the embassy is really not easy to handle

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12 Re: Custody of a baby after an annulment on Wed Nov 18, 2015 12:49 am

marlo


Reclusion Perpetua

Unfortunately your embassy was right. This means, the legal father of the child is her ex-husband although you were the bio father AS OF THIS TIME. Art 168 applies.

That situation attracts/affects custody and authority of ex-husband over the child unless....the ex-husband cooperates and questions the legitimacy of the child immediately. Immediately because it is time limited.

I think if ex-husband questionioned the legitimacy of the child done immediately, then the child would in turn be an illegitimate child. Thus, I think that would lead to full custody and parental authority of the illegit child to the mother alone (without attracting ex-husband to file adultery case against your fiancee).

You're in catch 2-2 situation. A need to cooperate and be friendly with ex-husband is needed I think so you can get what you need. Then bring him to appear to your embassy which is your option #2. Less time, cheaper and diplomatic since marrying your fiancee now in Philippines would not automatically legitimate the child legally and would also attract another problem.

Though I don't think you would have problems in airport as long as mother carries the birth cert, the problem is the embassy guys.

You need to seek legal advise from your attorney as I think you have a big problem man. GL

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13 Re: Custody of a baby after an annulment on Wed Nov 18, 2015 6:16 am

schnulli


Arresto Menor
Thank you very much for your comprehensive answer and advice !!

My fianceé has to contact our lawyer and discuss with him that topic again.
Actually the lawyer said that she has the full custody.
But probably he has not check all the facts.
I will write here again after he gave his answer.

Yes we could try to contact her ex and ask him for that favour.
But that will be not easy. There were no contact since 9 years.
And probably he lives now with his new wife in Mindanao

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14 Re: Custody of a baby after an annulment on Wed Nov 18, 2015 8:55 am

Lunkan


Reclusion Perpetua
schnulli wrote:Yes we could try to contact her ex and ask him for that favour.
But that will be not easy. There were no contact since 9 years.
And probably he lives now with his new wife in Mindanao
He can be interested in signing confirming he isn't the father, by he is told by signing he don'tt risk to need to pay child support or any inheritance to that child Smile

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15 Re: Custody of a baby after an annulment on Wed Nov 18, 2015 12:53 pm

marlo


Reclusion Perpetua
Art 211 and 168 were being applied by embassy guys since father had not objected legitimacy of the child.

Art 213-214 covers full custody of mother over illegit child below 7 yrs old. Afaik, this maternal and conventional rule is being practiced in court on annulled/separated spouses.

But the child is legit of ex-spouse due to 300 day rule. The rule applied by embassy was the date when the child was born. You also cannot marry your fiancee in Philippines within 300 days based on that, so I think you also cannot adopt the child on that given time since you are not married to her yet. 

On the other hand, if fiancee adopts the child then ex-spouse needs to be contacted. But ex-spouse cannot be located anymore. So problem still lies on getting a visa for the child.

I would suggest to contact DSWD to acquire needed permit (if any) to carry the child outside Philippines and submit it to embassy too. Since ex-spouse cannot be located, maybe embassy could acknowledge that and grant visa. GL



Last edited by marlo on Wed Nov 18, 2015 1:20 pm; edited 1 time in total (Reason for editing : 168)

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