B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 1

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THE BEST INTEREST OF THE CHILD RULE OF THE WOMEN’S CHARTER

OF SINGAPORE AND THE TENDER YEARS DOCTRINE OF THE FAMILY

CODE OF THE PHILIPPINES: A COMPARATIVE STUDY

A Thesis Presented to the College of Law

Bulacan State University

In Partial Fulfillment of the Requirements of the Degree

Juris Doctor

By

Jonathan A. Bautista
February 1, 2019
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 2

APPROVAL SHEET

In partial fulfillment of the requirements for the degree of Juris Doctor,

this thesis entitled THE BEST INTEREST OF THE CHILD RULE OF THE

WOMEN’S CHARTER OF SINGAPORE AND THE TENDER YEARS

DOCTRINE OF THE FAMILY CODE OF THE PHILIPPINES: A

COMPARATIVE STUDY has been prepared and submitted by Jonathan A.

Bautista who is hereby recommended for oral examination

Adviser: Atty. Alvin Bautista Adviser: Mary Grace Salvador LLM

Date: Date:

Approved in partial fulfillment of the requirements for the degree of Juris

Doctor by the Committee on Oral Examination.

Prosecutor Arthur S. Velasco DCL Atty. Guiller B. Asido LLM

Member Member

Accepted and approved in partial fulfillment of the requirements for the degree

of Juris Doctor.

_________________ Dean Nenita Dela Cruz-Tuazon, DCL

Chairperson Dean
College of Law College of Law

Date:
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 3

Republic of the Philippines

BULACAN STATE UNIVERSITY
College of Law
Brgy.Guinhawa, City of Malolos, Bulacan

Research Proposal Endorsement Form

To be completed by the student:

SUBJECT
THE BEST INTEREST OF THE CHILD RULE OF THE WOMEN’S
CHARTER OF SINGAPORE AND THE TENDER YEARS DOCTRINE OF
THE FAMILY CODE OF THE PHILIPPINES: A COMPARATIVE STUDY

NAME: Date

To be completed by the advisor:

Dear Dean Nenita D.C. Tuazon

Professor
I have reviewed and fully endorsed the proposal manuscript attached
herewith for evaluation. We look forward to a robust and thorough
review of this manuscript and welcome the necessary changes, if any, to
execute the proposed study.

Thank you.

___________________________ ______________
Research Advisors Date
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 4

Republic of the Philippines

BULACAN STATE UNIVERSITY
College of Law
Brgy.Guinhawa, City of Malolos, Bulacan

Certificate of Originality

I hereby declare that this submission is my own work and that, to the best
of my knowledge and belief, it contains no material previously published or
written by another person nor material to which to a substantial extent has been
accepted for award of any other degree or diploma of a university or other
institute of higher learning, except where due acknowledgement is made in the
text.

I also declare that the intellectual content of this thesis/dissertation is the

product of my work, even though I may have received assistance from others on
style, presentation and language expression.

Jonathan A. Bautista February 1, 2019

Signature of advisee over printed name Date

Signature of advisor over printed name Date

Signature of advisor over printed name Date

 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 5

Republic of the Philippines

BULACAN STATE UNIVERSITY
COLLEGE OF LAW
Barangay Maguinhawa, City of Malolos, Bulacan

ENGLISH EDITING CERTIFICATION FORM

This is to certify that I have edited this thesis/dissertation manuscript

entitled

THESIS TOPIC: THE SECTION 125 OF THE WOMEN’S CHARTER OF

SINGAPORE AND SECTION 213 OF THE FAMILY CODE OF THE
PHILIPPINES: A COMPARATIVE STUDY ON THE ADOPTION OF BEST
INTEREST OF THE CHILD RULE FOR THE PHILIPPINES

Prepared by:

and have found it thorough and acceptable with respect to grammar and
composition.

GRAMMAR SIG
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ACKNOWLEDGEMENT

Foremost, I would like to express my sincere gratitude to my advisor for

the continuous support of my study and research, for his patience, motivation,

enthusiasm, and immense knowledge. His guidance helped me in all the time of

research and writing of this thesis. I could not have imagined having a better

advisor and mentor for my study.

Besides my advisor, I would like to thank the rest of my thesis committee.

I thank my fellow classmates in Bulacan State University College of Law

for the stimulating discussions, for the sleepless nights we were working

together before deadlines, and for all the fun we have had in the last four years

and specially my best friend Tricia who has given me the topic and significant

research materials in relation to this study.

Finally, I would like to thank God and my family for supporting me

throughout my life.
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 7

ABSTRACT

The Philippines observes the tender years doctrine in awarding

custody of children aged seven years old and below. In cases of separation

between the parents, the court is bound to give the custody of the child to the

mother, unless in specific circumstances that there is a compelling reason for the

court to do otherwise. This situation gives a biased approach disfavoring the

father of the child and presumes incapacity for joint custody of the child.

Singapore is a small country located southwest of the Philippines within the

same region of southeast Asia with a diverse population from Catholic, Muslim

and Budhist sections. This State on the other hand observes the best interest of

the child rule in awarding custody. Here, several factors including the wishes of

the parents and the child if he is deemed to be at an age to make an independent

decision are taken into account in order for the court to make a more calculated

decision. The study compares article 213 of the Family code of the Philippines

and section 125 of the Women’s Charter of Singapore in order to make a

recommendation on which is the better law and improve upon family laws.
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DEDICATION

I dedicate this project to God Almighty my creator, my strong pillar, my

source of inspiration, wisdom, knowledge and understanding. He has been the

source of my strength throughout this study and on His wings only have I

soared. I also dedicate this work to my family and friends who have encouraged

me all the way, especially my love Berna whose encouragement has made sure

that I give it all it takes to finish that which I have started.

Thank you. God bless you.

 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 9

TABLE OF CONTENTS

Chapter 1

1.1. The Problem and Its Background

1.2. Statement of the Problem

1.3. Rationale of the Present Study

1.4. Significance of Study

1.5. Scope and Delimitation

1.6. Definition of Terms

Chapter 2

Review of Related Literature

Chapter 3

Research Methodology

Chapter 4

Presentation And Discussion

Chapter 5

Summary, Recommendations and Conclusion

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CHAPTER 1

1.1. THE PROBLEM AND ITS BACKGROUND

The best interest of the child rule is not often studied as an aspect of

family law. Its legislation provides for the establishment of a system that will

allow the father to have an equal chance against the mother to gain custody over

a minor child aged seven years or below.

The best interest of the child rule has been in existence in industrialized

countries for a long time. 1 The fundamental hypothesis behind granting the

better parent legal custody or joint custody of a child is that all the circumstances

and elements in order to make a decision shall be evaluated and balanced before

the court. Thus, the best interest of the child rule provides an assurance that there

will no bias in favoring the mother and the possibility of joint custody will be

considered.

The Family Code of the Philippines has been effective since August 3,

1988. It has since amended family laws in the Philippines and serves as the

country’s governing law regarding family matters. The Tender years doctrine is

manifested in the second paragraph of article 213 of the code as stated below:

“Art. 213.

1
Mason MA. From Fathers’ Property to Children’s Rights: The History of Child Custody in the United
States. New York, NY: Columbia University Press; 1994
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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.

No child under seven years of age shall be separated from the mother,

unless the court finds compelling reasons to order otherwise.”

THE TENDER YEARS DOCTRINE

As a part of family law, the tender years doctrine or tender years

presumption has been in existence since the latter part of the 19th century.

According to common law, the doctrine proposes that during the tender

years of a child (which is generally regarded as such from the age of four and

under), only the mother is allowed custody of the child. The tender years

doctrine is often raised in divorce proceedings.

Most states in the United States and Europe have scrapped out this

presumption. Some courts in the U.S. have ruled against the doctrine insisting

that it goes against the equal protection clause found in the 14th amendment of

the United States Constitution (it discriminates based on gender).

Most courts in the U.S. took up the doctrine as at that time (19th to 20th

century). The tender years doctrine in child custody cases was incorporated in
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the United States for over a hundred years, with most states in the region

recognizing it as legislation.

However, by the latter part of the 20th century, most courts and

legislatures had started to reverse decisions and repeal any laws that regarded

the doctrine as legislation placing it in favor of gender-neutral factors.

The doctrine was gradually replaced (in the legislation of majority of the

states) by a new child custody law known as the best interests of the child

doctrine.2

THE REPUBLIC OF SINGAPORE

Singapore is a coastal State not unlike the Philippines. It is a small country

located southwest of the Philippines within the same region of Southeast Asia

with a diverse population from Catholic, Muslim and Buddhist sections. This

State observes the best interest of the child rule in awarding custody with has a

specific provision of law recognizing the rights of fathers to custody and the best

interest of children. There are many Filipino overseas workers situated in

Singapore. The researcher believes that it would be a good variable to compare

the laws of Singapore with those of the Philippines as a means for this study

because of the presence of many Filipinos there and its similarity with the

2
BAYSINGER HENSON REIMER & CRESSWELL PLLC, The Tender Years Doctrine: Origin, History,
Modern Usage And Criticism
www.baysingerlaw.com
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Philippines regarding religion and its similar location in southeast Asia. The Best

Interest Rule is otherwise known as the Welfare Principle in Singapore.

The Women’s Charter of Singapore has been in effect since October 18,

1961 and has been amended multiple times over the years. It serves as the

country’s governing law regarding family issues except in the area of Muslim

marriages. The best interest of the child rule is manifested in the second

paragraph of section 125 as stated below:

“Paramount consideration to be welfare of child

125.—

(1) The court may at any time by order place a child in the custody of his

or her father or his or her mother or (where there are exceptional

circumstances making it undesirable that the child be entrusted to either

parent) of any other relative of the child or of any organisation or

association the objects of which include child welfare, or of any other

suitable person.

(2) In deciding in whose custody a child should be placed, the paramount

consideration shall be the welfare of the child and subject to this, the court

shall have regard —

(a) to the wishes of the parents of the child; and

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(b) to the wishes of the child, where he or she is of an age to express an

independent opinion.”

A problem arises in case of separation of parents with a child aged seven

years or below in the Philippines. The Family code of the Philippines states that

no mother shall be separated from her child under seven years of age of age,

unless the court finds compelling reasons for such measure. In these situations,

the mother is almost guaranteed to get custody of the child and will take the

most compelling reasons for the court to decide otherwise. This situation

undoubtedly favors the mother and deprives the child of his father and a chance

for joint parental custody.

The same is not true for the same situation if it happened in Singapore.

Under Singaporean laws there are four types of custody arrangements namely:

1. Sole custody order;

2. Joint custody order;

3. Hybrid order;

4. Split custody order.3

3
Mohamed Baiross. “The Guide to Child Custody, Care and Control, and Access in Singapore”
Retreived from https://singaporelegaladvice.com
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 15

The wishes of the child are even considered if he is deemed to be at an age

to make and express an independent opinion. Moreover, all factors are

considered in this jurisdiction such as the lifestyle and financial stability of the

parents which is not the case here in the Philippines.

It appears that the laws of Singapore provide better protection to the

child’s interest. The Best interest of the child rule provides sufficient flexibility

for the court to design a system of custody that best fits the circumstances and

meet goals and objectives of each case.

However, the Philippines have held on to the counterpart of the Best

interest of the child rule, the Tender Years Doctrine. The Tender Years doctrine is

manifested in the Civil Code of the Philippines and carried over to the Family

code of the Philippines which amended the former. It would seem the legislative

intent is to maintain custody of the child with the mother, which will be altered

under the Best Interest of the Child rule.

1.2 STATEMENT OF THE PROBLEM

In the course of this research, the researcher would like to give answers to

the following questions:

1. What is the Best Interest of the Child Doctrine?

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2. Is there an act or law that recognizes the Best Interest of the Child Rule?

3. How may the law of the Philippines and the law of Singapore regarding the

best interest of the child compare?

1.3 RATIONALE OF THE PRESENT STUDY

It is undisputed that fathers and children play a vital role in the

development of our country as they are part of the foundation of a family which

is the basic social institution. Thus, the protection of their rights by the State must

be fully realized.

However, by the passage of the New Civil Code, the Philippines adapted

the Tender Years Doctrine found in Article 363 thereof which states that “no

mother shall be separated from her child under seven years of age, unless the

court finds compelling reasons for such measure.” lesser protection has been

given to the fathers regarding custody in cases of separation because there was a

clear preference of the law in favor of the mother. Some countries in the world

particularly Singapore which is a coastal State not unlike the Philippines is a

small country located southwest of the Philippines within the same region of

Southeast Asia with a diverse population from Catholic, Muslim and Buddhist

sections. This State on the other hand observes the best interest of the child rule
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 17

in awarding custody with has a specific provision of law recognizing the rights

of fathers to custody and the best interest of children.

The purpose of this comparative analysis is to determine the similarities

and more importantly the differences between article 213 of the family code and

section 125 of the women’s charter of Singapore so that amendments may be

proposed for the improvement of such law. The study also seeks to contribute to

the development of the legal system regarding family law.

1.4 SIGNIFICANCE OF THE STUDY

This section provides a brief description on various significances of the

study to various stakeholders. Among the stakeholders who will be directly or

indirectly benefited by this study are the following:

1. Children aged seven years or below. This study will primarily benefit the

minor children aged seven years or below since their rights under the

family code are affected in terms of their custody.

2. Fathers of children aged seven years or below. This study will help fathers

get a better chance of winning custody over their children of tender years

in cases of living separately.

3. Law students. The knowledge and information learned from this study

will be useful for their subjects and even for their future careers.
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 18

4. Legislators. The obligation to protect the rights of each and every Filipino

child is imperative in the society. The knowledge and information learned

from this study will enable our legislators to propose intelligent

amendments of the law specifically the inclusion of the best interest of the

child rule in the family code.

5. Future researchers. This study will benefit and help the future researchers

in the pursuit of their studies in this discipline. The study can also open in

development of this study.

1.5 SCOPE AND LIMITATIONS OF THE STUDY

This study examined the Article 213 of the Family Code of the

Philippines and Section 125 Women’s Charter of Singapore as well as other

relevant articles and related jurisprudence. The study used an analytical

comparative method in analyzing the two statutes where facts or information

already available are used and analyzed to make a critical evaluation of the

material

1.6 DEFINITION OF TERMS

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“Best interests of the child” are the primary concern in making decisions that

may affect them. All adults should do what is best for children. When adults

make decisions, they should think about how their decisions will affect children.

This particularly applies to budget, policy and law makers;

“Tender years doctrine” is a presumption that during a child's "tender" years

(seven years and below), the mother should have custody of the child;

“United Nations Convention on the Rights of the Child (CRC)” is a legally-

binding international agreement setting out the civil, political, economic, social

and cultural rights of every child, regardless of their race, religion or abilities.
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 20

CHAPTER 2

REVIEW OF RELATED LITERATURE

Since the effectivity of the New Civil Code in August 30, 1950, the

Philippines have been following the Tender Years Doctrine in Family law. Article

363 of the said code contains the provision that manifests the Tender Years

doctrine as stated below:

“Article 363. In all questions on the care, custody, education and property

of children the latter's welfare shall be paramount. No mother shall be

separated from her child under seven years of age, unless the court finds

compelling reasons for such measure”

The Family Code of the Philippines took effect on August 3, 1988. It

amended Family laws from the New Civil Code however the Tender years

doctrine was carried over manifested under article 213 of the Family Code as

stated below

“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.”

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No child under seven years of age shall be separated from the mother,

unless the court finds compelling reasons to order otherwise.

From the foregoing articles, it is mandated under the law that the

separated mother assumes sole parental custody over the child who is under

seven years of age. There are many criticisms of the said doctrine, one in

particular is that the father is robbed of a chance to gain custody.

In Dacasin 4 , the Supreme Court elaborated and opined on the said

principle.

“It could very well be that Article 213’s bias favoring one separated parent

(mother) over the other (father) encourages paternal neglect, presumes

incapacity for joint parental custody, robs the parents of custodial options,

or hijacks decision-making between the separated parents. However, these

are objections which question the law’s wisdom not its validity or uniform

enforceability. The forum to air and remedy these grievances is the

legislature, not this Court. At any rate, the rule’s seeming harshness or

undesirability is tempered by ancillary agreements the separated parents

may wish to enter such as granting the father visitation and other

privileges. These arrangements are not inconsistent with the regime of sole

maternal custody under the second paragraph of Article 213 which merely

4
DACASIN vs. DACASIN, G.R. No. 168785, February 5, 2010
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grants to the mother final authority on the care and custody of the minor

under seven years of age, in case of disagreements.”

The father in cases like this has no recourse but to prove to the court that

the mother is unfit to take care of the child in order for him to be awarded

custody. As stipulated in the article, however, the mother will lose parental

authority and custody over the child if “compelling reasons” were found by the

court.

In Hirsch5, the Supreme Court elaborated on what constitutes compelling

reasons

“The so-called "tender-age presumption" under Article 213 of the Family

Code may be overcome only by compelling evidence of the mother’s

unfitness. The mother is declared unsuitable to have custody of her

children in one or more of the following instances: neglect, abandonment,

unemployment, immorality, habitual drunkenness, drug addiction,

maltreatment of the child, insanity, or affliction with a communicable

disease. Here, the mother was not shown to be unsuitable or grossly

incapable of caring for her minor child. All told, no compelling reason has

been adduced to wrench the child from the mother’s custody.”

5
HIRSCH vs. CA, G.R. No. 174485, July 11, 2007
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Further, prostitution and unfaithfulness to the husband may not be used

as grounds to separate a child from the mother. The mother’s sexual orientation

cannot also be used to separate her from her child, unless there is evidence that

this is not conducive to her child’s overall development.

In contrast, a judge urged a divorcing couple to put aside their differences

and help their child maintain a healthy relationship with both, in a rare case

giving the father care and control of the boy in Singapore.6

Further, The Court of Appeal has recently ruled that a six-year-old boy

with special needs at the centre of a five-year custody battle will remain in

Singapore in the care and control of his Singaporean father instead of his

Mongolian mother in London.7

The U.S. Case of Devine vs Devine

The tender years presumption represents an unconstitutional gender-

based classification which discriminates between fathers and mothers in child

custody proceedings solely on the basis of sex.

6
VIJAYAN K.C. “Dad given control of boy in custody case”
Retreived from www.asiaone.com
7
VIJAYAN K.C. “Apex court reverses decision in custody battle between Singaporean dad and Mongolian
mum over 6-year-old son”
Retreived from www.straitstimes.com
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At the conclusion of the case, there did not exist a clear preponderance of the

evidence for either party regarding child custody. However, the court based its

decision on the Alabama presumption that when dealing with children of tender

years, the natural mother is presumed, in absence of evidence to the contrary, to

be the proper person to be vested with custody of such children.

At common law, the father had a virtual absolute right to the custody of

the minor children. This right was dependent on the recognized laws of nature

and in accordance with the presumption that the father could best provide for

the necessities of his children. The wife was without any rights to the care and

custody of her minor children. In the 19th century, the court’s of England began

to qualify the paternal preference rule by conditioning a father’s absolute

custodial rights upon his fitness as a parent.

In the United States the origin of the tender years presumption occurred

in 1830, in the belief that it would violate the laws of nature to snatch an infant

from the care of its mother. At the present time the tender years presumption is a

rebuttable factual presumption based upon the inherent suitability of the mother

to care for and nurture young children. To rebut the presumption the father must

present clear and convincing evidence of the mother’s positive unfitness. It

substantively requires courts to award custody of young children to the mother

when the parents are equally fit, and procedurally imposes an evidentiary

burden on the father to prove the positive unfitness of the mother.

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The United States Supreme Court has held that any statutory scheme

imposing obligations on husbands but not on wives establishes a classification

based upon sex subject to scrutiny under the Fourteenth Amendment. The same

must be true for imposition of evidentiary burdens on fathers, but not on

mothers.8

The Women’s Charter of Singapore

The Women’s Charter first took shape as an election promise by the

People’s Action Party, and came into effect in 1961. Introduced at a time when

polygamy was a common practice and the legal rights of women here were

murkily defined, it marked a great leap forward for gender equality in

Singapore.

By making monogamy for non-Muslim Singaporeans the legal norm and

by framing marriage as “the equal cooperative partnership of different kinds of

efforts for the mutual well-being of the spouses”, the Charter effectively gave

married women the same rights as their husbands for the first time.

Among other things, the Charter provides for the rights of husbands and

wives in marriage and the legal potentialities of separation and divorce. The

latest amendments to the Charter were passed in January, 2011, and introduced

8
Devine v. Devine, 20 N.J. Super. 522, 90 A.2d 126, 1952 N.J. Super. LEXIS 914 (Ch.Div. 1952)
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 26

provisions to facilitate marriages in Singapore, address divorce and its impact,

and strengthen the enforcement of maintenance orders.

The Best interest of the child rule is manifested on paragraph 2 of section

125 in the said charter as stated below

(2) In deciding in whose custody, or in whose care and control, a child

should be placed, the paramount consideration shall be the welfare of the

child and subject to this, the court shall have regard —

(a) to the wishes of the parents of the child; and

(b) to the wishes of the child, where he or she is of an age to express an

independent opinion.

Among the things the court take into consideration are:

1. The child`s views and reasons which affect those views.

2. The child`s relationship with his parents, grandparents and other relatives.

3. The willingness and encouragement shown by each parent to encourage the

child to continue a relationship with the other parent.

4. The impact of changed circumstances on a child`s day by day schedule,

incorporating detachment from a guardian and carers eg, grandparents and

relatives.

5. The parents ability to provide for the child`s needs.

6. The parent`s attitude towards the child and their upbringing.

 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 27

7. The maturity, sex and lifestyle of a child and of either of the child`s parents.

8. The act or threat of violence involving a child or a member of the child’s family.

9. A court will also take into consideration the degree to which each parent has or

has not beforehand met their parental obligations, in particular,

10. The parent`s willingness to participate in decision making about major long-term

issues involving the child

11. Time spent with the child.

12. Parents meeting their obligations to maintain a child and facilitated the other

parent’s involvement in these aspects of the child’s life.9

CHAPTER 3

RESEARCH METHODOLOGY

The researcher will adopt an analytical research design. In an analytical

research design, “the researcher has to use facts or information already available,

and analyze these to make a critical evaluation of the material.”10 A comparative

method is used in this research to describe and explain variances of the two laws

from different states that are the subject of the study. The focus is not just to

describe and explain but also to improve the present state of the law and develop

9
Mohamed Baiross. “The Guide to Child Custody, Care and Control, and Access in Singapore”
Retreived from https://singaporelegaladvice.com
10
Kothari, C.R. (2004). Research Methodology (E-book version).
Retrieved from http://www.modares.ac.ir./
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 28

a similar law in the future. It essentially compares the two laws in order to draw

a conclusion about them. In the instant study, the law of the Philippines and the

law of Singapore regarding custody of children in cases of separated parents

have been compared by the researcher in order to come up to a conclusion of

which law is better and what must the other law apply or implement in order to

improve the same based on the law which turned out to be much better.

CHAPTER 4

PRESENTATION AND DISCUSSION

1. What is the Best Interest Rule?

The term “best interests” broadly describes the well-being of a child. Such

well-being is determined by a variety of individual circumstances, such as the

age, the level of maturity of the child, the presence or absence of parents, the

child’s environment and experiences. 11 Under the Women’s Charter, it is the

11
UNCHR. “Determining the Best Interests of the Child”
Retrieved from www.unhcr.org
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 29

deciding factor in whose custody, or in whose care and control, a child should be

placed in cases of separation of parents. In this regard, the court considers the

wishes of the parents of the child and the wishes of the child, where he or she is

of an age to express an independent opinion.12

According to the UN Convention on the Rights of the Child, assessing the

best interests of a child means to evaluate and balance “all the elements

necessary to make a decision in a specific situation for a specific individual child

or group of children”. Due to the diversity of factors to consider, usually more

than one profession or institution is involved in the assessment process, bringing

together various perspectives and areas of expertise from the country of origin

and destination and, in particular, the perspective of the child.

The following aspects are also relevant in considering the best interests of

the child:

1. The child's views and aspirations;

2. The identity of the child, including age and gender, personal history and

background;

3. The care, protection and safety of the child;

4. The child's well-being;

5. The family environment, family relations and contact;

12
Sec 125 Women’s Charter of Singapore
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 30

6. Social contacts of the child with peers and adults;

7. Situations of vulnerability, i.e. the risks that the child is facing and the

sources of protection, resiliency and empowerment;

8. The child's skills and evolving capacities;

9. The rights and needs with regard to health and education;

10. The development of the child and her or his gradual transition into

adulthood and an independent life;

2. Is there an act or law that recognizes the Best Interest of the Child Rule?

The best interest of the child standard is centuries old.13 It begins as a

trump that supersedes parental authority. Nonetheless, invocation of the

standard to substitute the views of a third party, such as the courts, over the

views of otherwise fit parents remains limited. On the relatively few occasions

when the US Supreme Court has addressed this issue, it has been more likely to

limit than expand application of the standard. 14 Nonetheless, the distinctions

between use of the standard to justify intervention and use of the standard to

resolve a case once intervention has occurred have never been clearly delineated.

13
Mason MA. From Fathers’ Property to Children’s Rights: The History of Child Custody in the United
States. New York, NY: Columbia University Press; 1994
14
Troxel v Granville, 530 US 57 (2000)
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 31

The standard clearly begins as a justification for intervention. The first

reported cases come from the 18th century. English law permitted fathers to

appoint guardians with decision-making power over their children, and the

Chancery courts had authority to oversee the guardians “for the benefit of the

infant.”15 Conflicts arose when testators conditioned inheritances on the father’s

appointment of a guardian for the child. If the father accepted the inheritance, he

ceded his authority over the child; if he did not accept, the English courts

concluded that he had waived his parental rights by failing to show “due

attention to the interests of the child.”16

These rulings articulated a potentially sweeping justification for

intervention, allowing the courts to substitute their judgment for the fathers as to

where the child’s interests lay.17 Yet, in other respects, they were limited. The

conflicts over appointment of a guardian arose either when the father was no

longer able to act or in the context of a probate decision in which the courts were

already overseeing disposition of an estate. In addition, the father who refused to

appoint a guardian in such contexts arguably had a conflict of interest, although

one we would think strange today.18

15
Abramowicz S. English Child Custody Law, 1660-1839: The Origins of Judicial Intervention in Paternal
Custody. Columbia Law Rev 1999;99:1344–1389
16
deManneville v deManneville, 32 Eng Rep 762, 767 (ch 1804); Powel v Cleaver, 29 Eng Rep 274 (ch
1789)
17
Abramowicz S. English Child Custody Law, 1660-1839: The Origins of Judicial Intervention in Paternal
Custody. Columbia Law Rev 1999;99:1344–1389
18
Carbone, J. “Legal Applications of the “Best Interest of the Child” Standard: Judicial Rationalization or a
Measure of Institutional Competence?”
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 32

In awarding custody of minor children aged seven years or below, the

Philippine courts do not observe the Best Interest of The Child Rule, however in

other countries and specifically the nearby REPUBLIC OF SINGAPORE, there is

an express and specific recognition under the WOMEN’S CHARTER.

Child custody is sometimes one of the most contentious issues in a

divorce. A “child” is defined in the Women’s Charter as a child of a marriage

who is presently under 21 years of age. The main statute governing child custody

in Singapore is the Guardianship of Infants Act, which is supplemented by the

Women’s Charter along with the Administration of Muslim Law Act. The law of

custody applies to every person in Singapore, regardless of whether one is

Muslim or non-Muslim.19

Child custody should be distinguished from care and control of the child.

Child custody grants the custodial parent(s) authority in making major decisions

regarding their child. Some of these decisions include matters concerning

education, religion and health conditions of the child.

Retreived from www.pediatrics.aappublications.org

19
Mohamed Baiross. “The Guide to Child Custody, Care and Control, and Access in Singapore”
Retreived from https://singaporelegaladvice.com
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 33

On the other hand, care and control is only given to one parent, who will

be involved in the child’s day-to-day matters. The other parent not given care

and control will be granted access to the child for certain periods.20

The child’s welfare should be understood broadly – it is not only

measured in terms of money or physical comfort, but also in terms of the child’s

moral, religious and physical well-being along with his/her ties of affection to

the parent. Where necessary, the Judge may ask for social service reports or

counselling sessions to assess the child’s and parents’ state and the type of

custody order suited for them.

Commonly used reports include the Social Welfare Report. Social Welfare

Reports are usually ordered by the court for disputes over which parent should

have custody of the child, and are prepared by officers from the Ministry of

Community Development and Sports. These officers will speak the child and

observe the child’s interactions with his/her parents. The report will not be

shown to the parties involved – it will only be used by the judge.

There are several non-exhaustive factors that a Judge may take into

consideration in determining the type of custody order:

20
Mohamed Baiross. “The Guide to Child Custody, Care and Control, and Access in Singapore”
Retreived from https://singaporelegaladvice.com
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 34

1. The primary caregiver of the child during his/her formative years

2. The current living arrangements

3. The child’s wishes

4. The parent’s wishes

5. The age of the child

6. The parents’ financial ability

7. Presence of family support

However, it should be noted that the Court would not prioritise the

parents’ wishes and likings above the welfare of the child. Also, the parent with a

higher financial ability does not necessarily give him/her an edge in custodial

arrangements.21

An order of care and control determines which parent the child should

live with. The parent given care and control of the child will be in charge of

handling the child’s daily necessities, such as the child’s meals, bedtimes and

transport arrangements. Such an order is nearly always necessary when parents

separate.

The other parent (who will not have the child living with him/her) will be

granted an order to have reasonable access to the child (see below). Convincing

evidence is required for a court to deny a parent of reasonable access to the child.

21
Mohamed Baiross. “The Guide to Child Custody, Care and Control, and Access in Singapore”
Retreived from https://singaporelegaladvice.com
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 35

It is possible to attach a “penal notice” to an order of care and control. A

penal notice attached to an order of care and control can list out specific terms

and responsibilities which the parent living with the child has to abide by, such

as allowing the other parent access to the child at a specific time and manner.

Unreasonably failing to comply with these terms will immediately allow the

parent who has breached the term to be committed where the court finds it

appropriate.

In Singapore, care and control is awarded to mothers in most cases. It is

often an uphill task for fathers to fight for full care and control of the child.

Unless the mother agrees to the father’s request, or the child is at an age

where he/she is able to express clearly to the Court his/her desire to stay with

the father, it is highly unlikely that the Court will award care and control to the

father.

In exceptional cases where the mother is found to be abusive, or neglectful

of her children, the Court may order an evaluation report by the Family Court

counselor before coming to a decision.

Alternatively, fathers who desire for care and control of the child may

consider pursuing an order for shared care and control. Under shared care and

control, the time spent with the children will be split amongst both parents
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 36

equally. Nonetheless, to succeed in obtaining care and control, the father must

have been the primary caregiver of the child prior to the divorce.

Shared care and control is also unlikely to be granted where school going

children are involved, given the inconveniences of travelling between 2 homes

frequently.

Hence it can be seen that it is an extremely onerous task for fathers to fight

for and obtain care and control. Nonetheless, it is not entirely impossible as there

have been cases where care and control was given to the father.2223

3. How may the law of the Philippines and the law of India with regard to __

compare?

The significant differences of the Tender Years Doctrine under Philippine

law and the Best Interests Rule under Singaporean law are as follows:

3.1 Definition of Children

22
VIJAYAN K.C. “Dad given control of boy in custody case”
Retreived from www.asiaone.com
23
VIJAYAN K.C. “Apex court reverses decision in custody battle between Singaporean dad and
Mongolian mum over 6-year-old son”
Retreived from www.straitstimes.com
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 37

In the Philippines, the term child is defined under Sec. 3 of RA 7610

otherwise known as the Special Protection of Children Against Abuse,

Exploitation and Discrimination Act. Here, "Children" refers to person below

eighteen (18) years of age or those over but are unable to fully take care of

themselves or protect themselves from abuse, neglect, cruelty, exploitation or

discrimination because of a physical or mental disability or condition.24

It worthy to note that a person above the age of majority which is eighteen

years may still be considered a child under the law when he or she is suffering

from a physical or mental disability or condition.

On the other hand, the age of majority applicable in Singapore is 21 years

old as provided by common law. However, there are different definitions of “a

child” stated in various legislations for specific purpose.

According to the Children and Young Person Act (CYPA) 2001, a “child”

is a person below the age of 14. A “young person” means a person who is 14

years of age or above but below the age of 16 years. A “juvenile” means a male or

female person who is 7 years of age or above but below the age of 16 years. The

Employment Act adopts the same definitions as the CYPA for a “child” and a

“young person”.

24
Sec 3 RA 7610
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 38

The Women’s Charter 1997 defines “a child” as a “child of the marriage

who is below 21 years”, and a “minor” as “a person who is below the age of 21

years and who is not married, or a widower or a widow”. Under the Women’s

Charter, any person who has carnal connection with a girl below the age of 16

years, except by way of marriage, is guilty of an offence. The Penal Code

provides that an offence of statutory rape is made out if (among other things) a

man has sexual intercourse with a girl even with her consent if she is below 14

years of age. This means that a “child” below 14 years old cannot legally consent

to sexual intercourse.

The Smoking (Control of Advertisement and Sale of Tobacco) Act

prohibits the sale or giving of tobacco products to persons under 18 years. Under

the Custom (Liquor Licensing) Regulations, it is an offence for a licensee to

permit a person under the age of 18 to consume alcoholic liquor at the licensed

premises or for the person under 18 years to purchase alcoholic liquor.

In October 1995, Singapore became signatory to the United Nations

Convention on the Rights of the Child (UNCRC), pledging its commitment to

help children when they are in an environment of abuse and neglect. The

UNCRC defines a “child” as someone below the age of 18.

Regardless of how a “child” is defined, these laws are designed to

promote and protect the best interests of the children, to punish those who
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 39

victimise them, and to ensure appropriate treatment for their recovery and social

integration.25

3.2 Factors Considered for the award of custody

In the Philippines, only thing considered in determining to whom custody

of child aged seven or below is awarded is only whether or not the mother is

unfit. The courts here are bound by the Family Code that No child under seven

years of age shall be separated from the mother, unless the court finds

compelling reasons to order otherwise. 26 “The so-called "tender-age

presumption" under Article 213 of the Family Code may be overcome only by

compelling evidence of the mother’s unfitness. The mother is declared unsuitable

to have custody of her children in one or more of the following instances: neglect,

abandonment, unemployment, immorality, habitual drunkenness, drug

addiction, maltreatment of the child, insanity, or affliction with a communicable

disease.27 Further, prostitution and unfaithfulness to the husband may not be

used as grounds to separate a child from the mother. The mother’s sexual

orientation cannot also be used to separate her from her child, unless there is

evidence that this is not conducive to her child’s overall development. Absent the

25
Childrensociety.org. “PROTECTION OF CHILDREN IN SINGAPORE”
Retrieved from childrensociety.org.sg
26
Sec 213 Family Code of the Philippines
27
HIRSCH vs. CA, G.R. No. 174485, July 11, 2007
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 40

above cited facts, custody is always awarded to the mother due to the

preferential treatment under the law.

In Singapore however, deciding in whose custody, or in whose care and

control, a child should be placed, the paramount consideration shall be the

welfare of the child.28 The Court in this case may consider in its discretion all

relevant factors that maybe for the best interest of the child. There are several

non-exhaustive factors that a Judge may take into consideration in determining

the type of custody order:

1. The primary caregiver of the child during his/her formative years

2. The current living arrangements

3. The child’s wishes

4. The parent’s wishes

5. The age of the child

6. The parents’ financial ability

7. Presence of family support

However, it should be noted that the Court would not prioritise the

parents’ wishes and likings above the welfare of the child. Also, the parent with a

28
Sec 125 Women’s Charter of Singapore
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 41

higher financial ability does not necessarily give him/her an edge in custodial

arrangements.29 These factors may transcend even prenuptial agreements.

“In TQ v. TR, a 2009 case involving a prenuptial agreement executed in

the Netherlands, the court said: “Turning to the next broad category, viz,

prenuptial agreements relating to the custody (as well as the care and control) of

children… There ought, in our view, to be a presumption that such agreements

are unenforceable… such agreements focus on the will of the parents rather than

on the welfare of the child which has (and always will be) the paramount

consideration for the court in relation to such issues”30

Sole Custody and Joint Custody

In cases of separation of the mother and father in Philippines, the law is

clear and unequivocal that no child under seven years of age shall be separated

from the mother, unless the court finds compelling reasons to order otherwise.31

This leaves out the possibility of joint custody and automatically gives a

preferential right to the mother of the child seven years and below.

29
Mohamed Baiross. “The Guide to Child Custody, Care and Control, and Access in Singapore”
Retreived from https://singaporelegaladvice.com
30
Chen S. “The Fundamental Question when Applying the Welfare Principle: "Who will be the Better
Parent or Guardian"?”
Retreived from ink.library.smu.edu.sg
31
Sec 213 Family Code
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 42

In Singapore however, there is a possibility of joint custody. Under this

order, both parents are the decision makers for major decisions concerning the

child. Hence both parents should communicate with one another and reach a

consensus when making key decisions. This gives them an equal say in the

upbringing of the child.

Increasingly, the Singapore courts are giving more joint custody orders

than sole custody ones. This is because the Courts recognise that the presence of

both parents in the life of their child is pivotal to his/her development.

Parenthood is a lifelong responsibility and commitment, and does not end with

the marriage.

Joint custody orders also send a message to the parents that neither parent

has a better right to the child, hence encouraging them to co-operate with each

other.32

The table below is presented to summarize key differences between the

two principles:

Tender Years Best Interest Rule

Doctrine

32
Mohamed Baiross. “The Guide to Child Custody, Care and Control, and Access in Singapore”
Retreived from https://singaporelegaladvice.com
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 43

Country of Philippines Singapore

Application

Governing Law Family Code Women’s Charter

To whom the The mother unless Joint custody or to whomever can

court awards deemed unfit by the give the best interest of the child if

custody in cases court joint custody is impossible

of separation

between the

parents

1. The primary caregiver of the

Factors 1. Whether or not
child during his/her formative
Considered in the mother is
years
unfit
awarding custody
2. The current living arrangements

3. The child’s wishes

4. The parent’s wishes

5. The age of the child

6. The parents’ financial ability

7. Presence of family support

 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 44

CHAPTER 5

SUMMARY, CONCLUSION AND RECOMMENDATION

This chapter presents the summary of findings, conclusions and

recommendations of the study.

I. Summary of Findings

There could very well be that Article 213s bias favouring one separated

parent (mother) over the other (father) encourages paternal neglect, presumes

incapacity for joint parental custody, robs the parents of custodial options, or

hijacks decision-making between the separated parents.33

It appears that the laws of Singapore provide better protection to the

child’s interest. The Best interest of the child rule provides sufficient flexibility

for the court to design a system of custody that best fits the circumstances and

meet goals and objectives of each case which the Tender Years Rule cannot

provide

Further, it is apparent that the Tender Years Doctrine is violative of the

equal protection clause in that it gives and undue preference to the mother whilst

33
DACASIN vs. DACASIN, G.R. No. 168785, February 5, 2010
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 45

the father must overcome the presumption in order gain custody of his minor

child.34

Lastly, The Law of Singapore is more compliant with the CRC particularly

Article 3 thereof otherwise known as the Best Interest of the Child Rule. Section

125 of the Women’s Charter is the manifestation of Article 3 of the CRC.

II. Conclusion an Recommendation

It is apparent the Singapore has legislated a better law than that of the

Philippines because it gives more consideration to social, economic and

emotional factors particularly for the better good of the minor children. It also

gives more possibilities in terms of custody where joint custody is possible as

compared to the Philippines where sole custody is the norm dictated by Article

213 of the Family Code otherwise known as the Tender Years Doctrine.

Since the purpose of this study is to is to determine the similarities and

more importantly the differences between article 213 of the family code and

section 125 of the womens charter of Singapore so that ammendments may be

proposed for the improvement of such law. I conclude this study with the

following recommendations:

34
Devine v. Devine, 20 N.J. Super. 522, 90 A.2d 126, 1952 N.J. Super. LEXIS 914 (Ch.Div. 1952)
 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 46

I. An amendment from Congress to provide for:

1. The adoption of the Best Interest of the Child Rule in determining

whether custody of the child will be given to the mother or father.

“AN ACT TO incorporate the best interest of the child rule in the

Philippines thereby AMENDING FOR THE PURPOSE executive order no. 209

otherwise known as The Family Code of the Philippines”

SECTION 1. Section 213, of executive order No. 209, otherwise known as the

"The Family Code of the Phillippines", is hereby amended to read as follows:

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

In deciding in whose custody, or in whose care and control, a child

should be placed, the paramount consideration shall be the welfare of the

child

2. Other options for custody other than sole custody that may include joint

custody and split custody or a mix thereof.

II. Recommendation for further studies:

 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 47

The researcher has only highlighted the basic difference of Section 125 of

Women’s Charter of Singapore and Article 213 of the Family Code regarding the

Best Interest Rule and the Tender Years Rule. There are still several areas for

further development and application for the work undertaken in this thesis to be

considered such as injunctions, mediation, child care among others. The

Researcher believes that the topics would be some of the best subjects to study

for the next few years.

Bibliography

Mohamed Baiross. “The Guide to Child Custody, Care and Control, and Access in Singapore”
Retreived from https://singaporelegaladvice.com Mohamed Baiross. “The Guide to
Child Custody, Care and Control, and Access in Singapore”

Retreived from https://singaporelegaladvice.com

DACASIN vs. DACASIN, G.R. No. 168785, February 5, 2010

HIRSCH vs. CA, G.R. No. 174485, July 11, 2007

VIJAYAN K.C. “Dad given control of boy in custody case”

Retreived from www.asiaone.com

VIJAYAN K.C. “Apex court reverses decision in custody battle between Singaporean dad and
Mongolian mum over 6-year-old son”
Retreived from www.straitstimes.com
Kothari, C.R. (2004). Research Methodology (E-book version).

Retrieved from http://www.modares.ac.ir./

UNCHR. “Determining the Best Interests of the Child”

 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 48

Retrieved from www.unhcr.org

Mason MA. From Fathers’ Property to Children’s Rights: The History of Child Custody in the
United States. New York, NY: Columbia University Press; 1994

Troxel v Granville, 530 US 57 (2000)

Abramowicz S. English Child Custody Law, 1660-1839: The Origins of Judicial Intervention in
Paternal Custody. Columbia Law Rev 1999;99:1344–1389
deManneville v deManneville, 32 Eng Rep 762, 767 (ch 1804); Powel v Cleaver, 29 Eng Rep 274
(ch 1789)
Abramowicz S. English Child Custody Law, 1660-1839: The Origins of Judicial Intervention in
Paternal Custody. Columbia Law Rev 1999;99:1344–1389
Carbone, J. “Legal Applications of the “Best Interest of the Child” Standard: Judicial
Rationalization or a Measure of Institutional Competence?”

Retreived from www.pediatrics.aappublications.org

Childrensociety.org. “PROTECTION OF CHILDREN IN SINGAPORE”

Retrieved from childrensociety.org.sg

Chen S. “The Fundamental Question when Applying the Welfare Principle: "Who will be the
Better Parent or Guardian"?”

Retreived from ink.library.smu.edu.sg

Curriculum Vitae

Personal Details

Name: Bautista, Jonathan A. Date of Birth: April 23, 1990

Address: 149 Tuazon Street Igulot Bocaue Bulacan 3019

Contact Number: 09271273913

Educational Background

(Currently)2015 to Present –, Juris Doctor

 B U L AC A N S T AT E U N I V E R S I T Y - C O L L E G E O F L AW 49

Bulacan State University College of Law

2007 – 2011 BS Business Administration Major In Management

Bulacan State University College of Social Sciences And Philosophy