Dear PAO,
My husband and I have been separated for several months
already. Before he finally left our house, he abused me physically in
front of our children. Can I still file a case for violation of RA 9262
against him even if months had passed since he harmed me? I was hesitant
to file a complaint against him because I’m afraid that once I do, he
will use his influence to take our children away from me.
VV
Dear VV,
The infliction of any form of violence against women and their children
is strictly prohibited by law. Violence against women and their
children refers to any act or series of acts committed by any person
against a woman who is his wife, former wife, or against a woman with
whom the person has or had a sexual or dating relationship, or with whom
he has a common child, or against her child whether legitimate or
illegitimate, within or without the family abode, which result in or is
likely to result in physical, sexual, psychological harm or suffering,
or economic abuse including threats of such acts, battery, assault,
coercion, harassment or arbitrary deprivation of liberty. It includes,
but is not limited to, physical violence, sexual violence, psychological
violence or economic abuse (Section 3(a), RA 9262).
The physical
abuse that you suffered from your husband is clearly a form of violence
punishable under Section 5 (a) of Republic Act 9262, to wit:
“SECTION
5. Acts of Violence Against Women and Their Children.- The crime of
violence against women and their children is committed through any of
the following acts:
(a) Causing physical harm to the woman or her child;
Xxx”
You
may still file a complaint for violation of RA No. 9262 against your
husband even if months had passed since he physically abused you. This
shall be filed before the Office of the Prosecutor of the place where he
abused you. Forms of violence under Sections 5(a) to 5(f) may be filed
within twenty (20) years from the commission of the act (Section 24, RA
9262).
As regards your concern with the deprivation of custody of
your children, Section 34 of RA No. 9262 specifically provides that the
women-victims of violence shall be entitled to the custody and support
of their children. Children below seven (7) years old older but with
mental or physical disabilities shall automatically be given to the
mother, with right to support, unless the court finds compelling reasons
to order otherwise. Even a victim who is suffering from battered woman
syndrome shall not be disqualified from having custody of her children.
In no case shall the custody of minor children be given to the
perpetrator of a crime against a woman who is suffering from Battered
Woman Syndrome.
We hope that we were able to answer your queries.
Please be reminded that this advice is based solely on the facts you
have narrated and our appreciation of the same. Our opinion may vary
when other facts are changed or elaborated.
source: Manila Times Column of Atty Persida Acosta
RA 9262 - Anti-Violence Against Women and Their Children Act of 2004
Saturday, July 27, 2013
Saturday, July 6, 2013
Stepchild entitled to green card despite mother’s fixed marriage
Recently, the Board of Immigration Appeals (BIA) ruled that a child
could receive a green card through a step parent’s petition, even if the
child’s natural parent is not eligible (because the child’s parent had
previously entered into a fixed marriage). This is great news for people
who have children (from previous marriages/relationships) and later
married US citizens while their children are less than 18 years of age,
because even though the parent may not be eligible for a green card, their minor children could still be petitioned.
In that particular case, a US citizen married the child’s mother before the child’s 18th birthday (thus creating a stepchild relationship). The American then filed petitions on behalf of the child’s mother (as his wife), and the child (as a stepchild).
However, the mother had a prior marriage, to a different American citizen, which USCIS concluded was “fixed.” (Under Section 204(c) of the Immigration and Nationality Act, if a person has ever been found to have entered into a fixed marriage, that person is “blacklisted for life,” and no future petition can be approved on his or her behalf). Accordingly, the USCIS denied the spousal petition, and also denied the child’s petition because “the stepparent relationship to the beneficiary was no longer valid.” In other words, because the petition for the child’s mother was denied, USCIS also denied the child’s petition.
The BIA ruled that the plain language of section 204(c) applies only to an alien who sought to be accorded, or was accorded, status as a “spouse,” based on a marriage found to have been entered into for the purpose of evading the immigration law: “We therefore conclude that section 204(c) does not apply to the beneficiary and does not bar the approval of a visa petition filed on his behalf by the petitioner to accord him status as a stepchild.” The fixed marriage ban, therefore, does not apply to anyone other than the alien spouse who entered into the fixed marriage, and should not apply to step children.
If you married a US citizen before your child’s 18th birthday, but for one reason or another, you are not eligible to be petitioned (i.e. because of prior finding of a fixed marriage, criminal conviction, deportation order, etc.), your child may still be petitioned by your US citizen spouse, as a stepchild. However it is important to note that the marriage to the petitioner/stepfather must be “real” and “valid.” In the above case, the mother’s previous marriage was fixed, but this second marriage to the American-petitioner was for love and in good faith.
If your situation is similar to this case, you may want to seek the advice of an attorney who can evaluate your circumstances, and even if you cannot safely be petitioned, maybe there is hope for your child, while you’re still married to, and in love with, your American citizen spouse.
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In that particular case, a US citizen married the child’s mother before the child’s 18th birthday (thus creating a stepchild relationship). The American then filed petitions on behalf of the child’s mother (as his wife), and the child (as a stepchild).
However, the mother had a prior marriage, to a different American citizen, which USCIS concluded was “fixed.” (Under Section 204(c) of the Immigration and Nationality Act, if a person has ever been found to have entered into a fixed marriage, that person is “blacklisted for life,” and no future petition can be approved on his or her behalf). Accordingly, the USCIS denied the spousal petition, and also denied the child’s petition because “the stepparent relationship to the beneficiary was no longer valid.” In other words, because the petition for the child’s mother was denied, USCIS also denied the child’s petition.
The BIA ruled that the plain language of section 204(c) applies only to an alien who sought to be accorded, or was accorded, status as a “spouse,” based on a marriage found to have been entered into for the purpose of evading the immigration law: “We therefore conclude that section 204(c) does not apply to the beneficiary and does not bar the approval of a visa petition filed on his behalf by the petitioner to accord him status as a stepchild.” The fixed marriage ban, therefore, does not apply to anyone other than the alien spouse who entered into the fixed marriage, and should not apply to step children.
If you married a US citizen before your child’s 18th birthday, but for one reason or another, you are not eligible to be petitioned (i.e. because of prior finding of a fixed marriage, criminal conviction, deportation order, etc.), your child may still be petitioned by your US citizen spouse, as a stepchild. However it is important to note that the marriage to the petitioner/stepfather must be “real” and “valid.” In the above case, the mother’s previous marriage was fixed, but this second marriage to the American-petitioner was for love and in good faith.
If your situation is similar to this case, you may want to seek the advice of an attorney who can evaluate your circumstances, and even if you cannot safely be petitioned, maybe there is hope for your child, while you’re still married to, and in love with, your American citizen spouse.
* * *
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Four offices to serve you: PHILIPPINES: 8940258 or 8940239; LOS ANGELES; SAN FRANCISCO; NEW YORK: TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465)
The shame of secret jails for child prisoners
Afew weeks ago, I visited yet again several child detention centers
and police holding cells around Metro Manila with the Preda Foundation
social workers. We found two small girls, 13 and 14 years of age behind
bars looking out tearfully; and next to their cell was an adult male
prisoner reaching through the steel bars beside them. They were
terrified. The cell of the children had no beds, curtains, toilet, just a
bucket in the corner and no privacy. It was terrible. One had been
charged with stealing food, the other for kidnapping a child. An adult
told her to bring a baby to another place. She was arrested. Immediately
we began legal action to have them released to the Preda Girl’s Home.
In another child detention center on the other side of Metro Manila, we found three small girls, from 6 to 12 years of age, locked in a room with male teenage boys. The place was bare and empty: no beds, chairs, showers, just a single toilet in the corner. It was a depressingly empty detention room.
Preda began negotiations with the Center Head to have the girls taken out of that detention holding room. It was no easy task. They were oblivious of the danger of sexual molestation to the small children. The Mayor received US$58,500,00 from the national government’s Department of Social Welfare and Development (DSWD) to build a home for the children but as yet, only another room in the same building is being renovated.
In other jails, we found many more young minors behind bars without proper recreation, education, exercise, food, sanitation and legal assistance. This is the secret shame of the Philippines, hidden away from the media and the public. Hundreds if not thousands of children suffer the humiliation and deprivation of sub-human jail conditions every year.
More must be done to change the system that locks up children without care and education and respect for their human and child rights. It is similar in many developing countries.
Philippine government, NGOs, churches, and international aid agencies and charities are giving too little funds and advocacy to challenge and stop the gross violation of children’s rights in the jails around the Philippines where thousands of children suffer time behind bars in dehumanizing conditions not fit for animals.
It is much the same in other developing countries and much more has to be done by Unicef and the World Health Organization to pressure governments to change and transform the whole system of recovery and stop jailing children.
I can write from experience on this because of the success of the Preda social workers getting the children out of jails and transferring the custody to their parents and relatives or to the Preda Home for Boys in Castillejos, Zambales and to the Preda Home for Girls.
As many as 138 teenage youth were transferred to Preda coming from jails in Metro Manila in 2012 alone. Several small girls were rescued and helped to recover and find a new home safe from the abusers.
The boys or girls are released by court order and transferred to the Preda centers. This takes much time and expense. The more preferable way to release the child is before charges are filed against them by the recommendation of the municipal social worker using the diversion provision in the law. They are released from the fetid life threatening conditions of prisons and given a new start in life.
The Preda Home for Boys and Home for Girls are far from each other, but they are in a place of natural beauty, open countryside, where they can recover in dignity, where they are respected and cared for. Their faith in themselves and their self-worth is restored. Their trust in adults is healed.
The reason why there are so many children treated like criminals and jailed with them is because the public and the authorities have a very wrong attitude and perception of children in conflict with the law (CICL). The public have been misled by sensationalized tabloid media and the baseless statements of the police.
I have challenged police generals at a Senate hearing to go after the gang leaders of criminal gangs that abuse and force children to commit crimes. It’s so easy to arrest a child but are the police scared to go against the real criminals? Surely not, they are brave and courageous, they’re not into thinking that the street children are all thieves, robbers and even murderers or members of adult crime syndicates and deserve punishment and life behind bars. A nation is judged civilized, developed and moral not by the number of malls it has but by the way it treats children and women. We have a long journey ahead. Email shaycullen@preda.org; send letters to: St. Columbans, Widney Manor Road, Solihull, B93 9AB.
(Fr. Shay’s columns are published in The Universe, The Manila Times, in publications in Ireland, the UK, Hong Kong, and on-line.)
source: Manila Times's Column of Reflections by Fr. Shay Cullen
In another child detention center on the other side of Metro Manila, we found three small girls, from 6 to 12 years of age, locked in a room with male teenage boys. The place was bare and empty: no beds, chairs, showers, just a single toilet in the corner. It was a depressingly empty detention room.
Preda began negotiations with the Center Head to have the girls taken out of that detention holding room. It was no easy task. They were oblivious of the danger of sexual molestation to the small children. The Mayor received US$58,500,00 from the national government’s Department of Social Welfare and Development (DSWD) to build a home for the children but as yet, only another room in the same building is being renovated.
In other jails, we found many more young minors behind bars without proper recreation, education, exercise, food, sanitation and legal assistance. This is the secret shame of the Philippines, hidden away from the media and the public. Hundreds if not thousands of children suffer the humiliation and deprivation of sub-human jail conditions every year.
More must be done to change the system that locks up children without care and education and respect for their human and child rights. It is similar in many developing countries.
Philippine government, NGOs, churches, and international aid agencies and charities are giving too little funds and advocacy to challenge and stop the gross violation of children’s rights in the jails around the Philippines where thousands of children suffer time behind bars in dehumanizing conditions not fit for animals.
It is much the same in other developing countries and much more has to be done by Unicef and the World Health Organization to pressure governments to change and transform the whole system of recovery and stop jailing children.
I can write from experience on this because of the success of the Preda social workers getting the children out of jails and transferring the custody to their parents and relatives or to the Preda Home for Boys in Castillejos, Zambales and to the Preda Home for Girls.
As many as 138 teenage youth were transferred to Preda coming from jails in Metro Manila in 2012 alone. Several small girls were rescued and helped to recover and find a new home safe from the abusers.
The boys or girls are released by court order and transferred to the Preda centers. This takes much time and expense. The more preferable way to release the child is before charges are filed against them by the recommendation of the municipal social worker using the diversion provision in the law. They are released from the fetid life threatening conditions of prisons and given a new start in life.
The Preda Home for Boys and Home for Girls are far from each other, but they are in a place of natural beauty, open countryside, where they can recover in dignity, where they are respected and cared for. Their faith in themselves and their self-worth is restored. Their trust in adults is healed.
The reason why there are so many children treated like criminals and jailed with them is because the public and the authorities have a very wrong attitude and perception of children in conflict with the law (CICL). The public have been misled by sensationalized tabloid media and the baseless statements of the police.
I have challenged police generals at a Senate hearing to go after the gang leaders of criminal gangs that abuse and force children to commit crimes. It’s so easy to arrest a child but are the police scared to go against the real criminals? Surely not, they are brave and courageous, they’re not into thinking that the street children are all thieves, robbers and even murderers or members of adult crime syndicates and deserve punishment and life behind bars. A nation is judged civilized, developed and moral not by the number of malls it has but by the way it treats children and women. We have a long journey ahead. Email shaycullen@preda.org; send letters to: St. Columbans, Widney Manor Road, Solihull, B93 9AB.
(Fr. Shay’s columns are published in The Universe, The Manila Times, in publications in Ireland, the UK, Hong Kong, and on-line.)
source: Manila Times's Column of Reflections by Fr. Shay Cullen
Tuesday, July 2, 2013
Court gives order to cancel legitimation after adversarial proceeding
Dear PAO,
My status in my birth certificate is legitimated. However, I was told that I am not qualified for legitimation because my father was married to someone else when I was born. Am I not qualified for legitimation? If not, how can I cancel my legitimation? Can I ask for assistance from your office?
R.O.
Dear R.O.,
Legitimation is defined as a remedy by means of which, those who in fact were not born in wedlock and should, therefore, be considered illegitimate, are, by fiction, considered legitimate, it being supposed that they were born when their parents were already validly married.
There are two requisites in order for a child to be legitimated. These are the following: 1) the parents of the illegitimate child were not under any legal impediment to marry each other except the legal impediment of minority; and 2) subsequent valid marriage between the parents of the illegitimate child (Section 1, RA 9858). Hence, you are not qualified for legitimation because your father has the legal impediment of an existing marriage when you were born.
In order to cancel your status as a legitimated child, you shall need to file a petition for cancellation of legitimation before the Regional Trial Court of the place where your birth certificate was registered (Section 1, Rule 108, Rules of Court). Since this is an adversarial proceeding, you shall need to make as parties to your petition the civil registrar and all persons who have or claim any interest which would be affected by the cancellation of your legitimation (Section 3, id.). Upon filing of your petition, the court shall, by an order, fix the time and place for the hearing of your petition and cause reasonable notice thereof to be given to the parties named in your petition. It shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province (Section 4, id.). After hearing, the court may either dismiss your petition or issue an order granting the cancellation of your legitimation. In either case, a certified copy of the judgment shall be served upon the civil registrar where your birth certificate was registered who shall annotate the same in his record (Section 7, id.).
Our Office extends free legal assistance to the filing of petition for cancellation before our courts. This is pursuant to our mandate to represent, free of charge, indigents, and other persons qualified for legal assistance in all civil, criminal, labor, administrative and other quasi-judicial cases where, after due evaluation, it is determined that the interest of justice will be served thereby (Section 1, PAO Operations Manual). However, in order to become our client, you need to pass the merit and indigency tests as mandated by the PAO Law and our operations manual. A case shall be considered meritorious, if an assessment of the law and evidence on hand, discloses that the legal services of the office will assist, or be in aid of, or in the furtherance of justice, taking into consideration the interests of the party and those of society (Section 2, PAO Operations Manual). A client shall be considered an indigent if his net income does not exceed: P14,000.00 if residing in Metro Manila; P13,000.00 if residing in other cities; and P12,000.00 if residing in all other places (Section 3, PAO Operations Manual).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty. Persida Acosta
My status in my birth certificate is legitimated. However, I was told that I am not qualified for legitimation because my father was married to someone else when I was born. Am I not qualified for legitimation? If not, how can I cancel my legitimation? Can I ask for assistance from your office?
R.O.
Dear R.O.,
Legitimation is defined as a remedy by means of which, those who in fact were not born in wedlock and should, therefore, be considered illegitimate, are, by fiction, considered legitimate, it being supposed that they were born when their parents were already validly married.
There are two requisites in order for a child to be legitimated. These are the following: 1) the parents of the illegitimate child were not under any legal impediment to marry each other except the legal impediment of minority; and 2) subsequent valid marriage between the parents of the illegitimate child (Section 1, RA 9858). Hence, you are not qualified for legitimation because your father has the legal impediment of an existing marriage when you were born.
In order to cancel your status as a legitimated child, you shall need to file a petition for cancellation of legitimation before the Regional Trial Court of the place where your birth certificate was registered (Section 1, Rule 108, Rules of Court). Since this is an adversarial proceeding, you shall need to make as parties to your petition the civil registrar and all persons who have or claim any interest which would be affected by the cancellation of your legitimation (Section 3, id.). Upon filing of your petition, the court shall, by an order, fix the time and place for the hearing of your petition and cause reasonable notice thereof to be given to the parties named in your petition. It shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province (Section 4, id.). After hearing, the court may either dismiss your petition or issue an order granting the cancellation of your legitimation. In either case, a certified copy of the judgment shall be served upon the civil registrar where your birth certificate was registered who shall annotate the same in his record (Section 7, id.).
Our Office extends free legal assistance to the filing of petition for cancellation before our courts. This is pursuant to our mandate to represent, free of charge, indigents, and other persons qualified for legal assistance in all civil, criminal, labor, administrative and other quasi-judicial cases where, after due evaluation, it is determined that the interest of justice will be served thereby (Section 1, PAO Operations Manual). However, in order to become our client, you need to pass the merit and indigency tests as mandated by the PAO Law and our operations manual. A case shall be considered meritorious, if an assessment of the law and evidence on hand, discloses that the legal services of the office will assist, or be in aid of, or in the furtherance of justice, taking into consideration the interests of the party and those of society (Section 2, PAO Operations Manual). A client shall be considered an indigent if his net income does not exceed: P14,000.00 if residing in Metro Manila; P13,000.00 if residing in other cities; and P12,000.00 if residing in all other places (Section 3, PAO Operations Manual).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty. Persida Acosta
Monday, July 1, 2013
No Philippine law obligates married woman to drop her maiden name
Dear PAO,
I am using the surname of my foreign husband in my Philippine passport. We are not divorced but we are already separated and are not communicating with each other anymore. Can I have a new Philippine passport using my maiden name?
LP
Dear LP,
There is no law in the Philippines which obligates a married woman to use the surname of her husband. Upon a valid marriage, a married woman is only given an option to use the surname of her husband in any of the ways enumerated in Article 370 of the Civil Code of the Philippines, to wit:
“Article 370. A married woman may use:
1. Her maiden first name and surname and add her husband’s surname, or
2. Her maiden first name and her husband’s surname, or
3. Her husband’s full name, but prefixing a word indicating that she is his wife, such as “Mrs.”
A married woman who has decided to use the surname of her husband may be issued a Philippine passport in such surname upon presentation with the Department of Foreign Affairs a copy of her marriage certificate. In addition thereto, a Filipino who contracts marriage in the Philippines to a foreigner shall be required to present a Certificate of Attendance in a Guidance and Counselling Seminar when applying for a passport for the first time (Article 6, Section 2, Implementing Rules and Regulations of Republic Act No. 8239).
However, once a married woman has opted to use the surname of her husband, she shall continue using the same until her marriage with her husband is validly terminated. Hence, a married woman shall only be allowed to revert to her maiden name in her passport in the following instances: annulment, declaration of nullity of marriage, divorce decree obtained by the foreigner spouse, and death of the husband (Section 5(d), RA No. 8239).
In case of annulment, it shall be necessary for the applicant to present a certified true copy of her annotated Marriage Contract or Certificate of Registration and the Court Order effecting the annulment. If the woman was divorced by her alien husband, she must present a certified true copy of the Divorce Decree duly authenticated by the Philippine Embassy or consular post which has jurisdiction over the place where the divorce is obtained or by the concerned foreign diplomatic or consular mission in the Philippines. In the event that marriage is dissolved by the death of the husband, the applicant must present the original or certified true copy of the Death Certificate of the husband or the Declaration of Presumptive Death by a Civil or Shari’ah Court, in which case the applicant may choose to continue to use her husband’s surname or resume the use of her maiden surname (Article 6, Section 2, Implementing Rules and Regulations of RA No. 8239). Based on the foregoing, you shall not be issued a new passport since you are only separated in fact with your husband.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column by Atty Persida Acosta
I am using the surname of my foreign husband in my Philippine passport. We are not divorced but we are already separated and are not communicating with each other anymore. Can I have a new Philippine passport using my maiden name?
LP
Dear LP,
There is no law in the Philippines which obligates a married woman to use the surname of her husband. Upon a valid marriage, a married woman is only given an option to use the surname of her husband in any of the ways enumerated in Article 370 of the Civil Code of the Philippines, to wit:
“Article 370. A married woman may use:
1. Her maiden first name and surname and add her husband’s surname, or
2. Her maiden first name and her husband’s surname, or
3. Her husband’s full name, but prefixing a word indicating that she is his wife, such as “Mrs.”
A married woman who has decided to use the surname of her husband may be issued a Philippine passport in such surname upon presentation with the Department of Foreign Affairs a copy of her marriage certificate. In addition thereto, a Filipino who contracts marriage in the Philippines to a foreigner shall be required to present a Certificate of Attendance in a Guidance and Counselling Seminar when applying for a passport for the first time (Article 6, Section 2, Implementing Rules and Regulations of Republic Act No. 8239).
However, once a married woman has opted to use the surname of her husband, she shall continue using the same until her marriage with her husband is validly terminated. Hence, a married woman shall only be allowed to revert to her maiden name in her passport in the following instances: annulment, declaration of nullity of marriage, divorce decree obtained by the foreigner spouse, and death of the husband (Section 5(d), RA No. 8239).
In case of annulment, it shall be necessary for the applicant to present a certified true copy of her annotated Marriage Contract or Certificate of Registration and the Court Order effecting the annulment. If the woman was divorced by her alien husband, she must present a certified true copy of the Divorce Decree duly authenticated by the Philippine Embassy or consular post which has jurisdiction over the place where the divorce is obtained or by the concerned foreign diplomatic or consular mission in the Philippines. In the event that marriage is dissolved by the death of the husband, the applicant must present the original or certified true copy of the Death Certificate of the husband or the Declaration of Presumptive Death by a Civil or Shari’ah Court, in which case the applicant may choose to continue to use her husband’s surname or resume the use of her maiden surname (Article 6, Section 2, Implementing Rules and Regulations of RA No. 8239). Based on the foregoing, you shall not be issued a new passport since you are only separated in fact with your husband.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column by Atty Persida Acosta
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