Visitation as a Matter of Right

Visitation is defined as a relative’s, especially a noncustodial parent’s, period of access to a child.

[1] Visitation can be supervised or not supervised – the latter meaning that when the noncustodial parent sees his children, another person, for example the mother, accompanies them during the period of visitation. A court may order supervised visitation when the visiting parent is known or believed to be prone to physical abuse, sexual abuse, or violence. [2]

A specific time may also be designated as the visiting time of the noncustodial parent, such as for example a Saturday or a Sunday every weekend. In this way, the children get to spend time with their “other” parent, and the custodial parent does not have the monopoly of her children, in order to maintain a continuing parent-child relationship between the father and his children, even after the parents have separated, for the presence of both the father and the mother are important for the overall development of the children, especially at an age when they see other children growing under the guidance of both parents.

B. Visitation as a Matter of Right

Visitation is a right. In fact, it is a constitutionally protected natural and primary right [3] of a parent under Section 12, Article II of the 1987 Philippine Constitution, which provides:

Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and development of moral character shall receive the support of the Government.

(Emphasis supplied)

Visitation right is the right of access of a noncustodial parent to his or her child or children. [4] In other jurisdictions, it includes a noncustodial parent’s or grandparent’s court-ordered privilege of spending time with a child or grandchild who is living with another person, usually the custodial parent. [5] In not all instances, however, is the visitation right granted by order of the court. It may also be impliedly recognized from the agreement between the illegitimate parents that the father shall have visitation rights over his children, as was the case in Habaybeh v. Mallare-Philipps. [6]

In that case, Ric Chan and Asmahan Habaybeh cohabited, and as a result of their cohabitation they begot a son named Emmanuel Benedict Habaybeh Chan, fondly called Nmer. A year after the birth of Nmer, the couple had a quarrel as a result of which Ric was driven away by Asmahan from their rented home.

A few months later, they executed a written agreement that Nmer shall remain in the custody of Asmahan, but Ric may have the child twice a week. Later, however, Asmahan violated the agreement, depriving Ric of his custody and visitation rights over the child.

The Court of Appeals, in deciding the pivotal issue of whether Ric Chan is entitled to at least a visitation right over his alleged illegitimate child Nmer, said that:

Concededly, there is nothing in either the Civil Code or in the Family Code which grants, either expressly or impliedly, visitation rights to an illegitimate father over his illegitimate child. In the same breath, however, there is also nothing in both Codes which denies such a right to an illegitimate father. On balance, we are inclined to believe that the legal obligations imposed by law to an illegitimate father, like the obligation of support, carries with it at the very least the right of visitation over the illegitimate child. In fact, no less than the petitioner acknowledged the existence of such right when she executed a written agreement with the private respondent giving the latter not only visitation but also temporary custody rights over NMER. For sure, in filing his complaint in the respondent court, private respondent is merely seeking the enforcement of that agreement which, to our mind, may not be said to be contrary to law, morals, good order or public policy. (Emphasis supplied)

We find it hard to believe that the lawmakers could have been that insensitive to the natural yearnings of an illegitimate father to be once in a while with his illegitimate child, more so when, as in this case, there appears to be no compelling reason to deny such yearnings considering that petitioner’s husband from whom she had been legally separated is already dead. [7]

The right of visitation is derived from the right of custody and is controlled by the same legal principles. Thus, as in custody cases, the best interest and welfare of the child is the controlling consideration. A parent denied custody does not thereby lose his natural right to visit his children, though the right may be denied if the best interest of the child so demands. And visitation privileges are ordinarily allowed a noncustodial parent, if it can be done without jeopardizing the welfare of the child. [8]

The noncustodial parent or the other parent is entitled to visitation privileges as a matter of right which the court will specify and define in its decision awarding custody. Visitation rights may be withheld from the noncustodial parent only upon conclusive evidence that the noncustodial parent has forfeited his right of access by his conduct or that the exercise of the right would injuriously affect the child’s welfare. [9]

The cases and statutes exhibit a growing recognition of parental rights, and particularly of the rights of fathers, in child custody and visitation cases. Visitation is considered to be a species of custody. Although not identical to custody, visitation, like custody, allows a parent to gain physical control and possession of the child. Therefore, the principles, rules, and considerations that guide custody cases greatly influence the outcome in cases involving the visitation rights of parents. [10]

However, in sole custody, severe qualitative and physical limitations on the noncustodial parent’s access to the child are in place. Thus, the noncustodial parent is relegated to the status of mere visitor to the child; he becomes a weekend, holiday, and vacation parent rather than an integral part of the child’s life. Philippine law on custody, as presently worded and interpreted, allows only sole custody award based on the best interest of the child and tender years presumption in some cases. [11]

C. Importance of Continuing Father-Child Relationship through Visitation in the Development of the Children

The father-child relationship is one that is of fundamental importance to the developmental progress of children. The impact that a father has on a child begins upon infancy. The father, in engaging in playful activities, which tends to be more physical and spontaneous, contributes to healthy brain development in infants. [12]

By the time infants grow into small children, the role of play that a father engages in with the child takes on broader meaning and value. At this stage, the play takes on the role of teaching children problem solving, exploring limits, and goal oriented behavior. This is also a stage when fathers begin to help children learn to limit emotional outbursts and develop empathy through emotional involvement and modeling the appropriate behaviors. [13]

At the school age stage, fathers help their children to learn to assume responsibility, encourage taking on challenges, and help to direct moral development. The father may wield more power to help or hinder their child at this point of development than any other. [14]

The father-child relationship changes during adolescence. The role of the father at this point is more passive than in earlier years. Rather than engaging in teaching roles, or encouraging skill development, the father takes on a more advisory role. His task, as it were, is to be more an adviser and friend. The child will be more focused on the mother-child relationship aspect but still seek out the father for advice or reassurance about decision making, advice about managing personalities in their lives, and for simple time spent together. [15]

As children move into adolescence, fathers’ involvement may also begin to differ based on a child’s gender. Role modeling becomes more important during adolescence. It is at this stage that fathers tend to be more involved with their sons than with their daughters. A possible reason might be because fathers may relate more easily to male children during adolescence because of common interests and activities. [16] Adolescence may be a time when connection through mutual activities is an especially important part of the father-child relationship for both sons and daughters, as it is a time when children are developing independence and parent-child relationships are changing. [17]

The level of connection between fathers and their children, meaning the time they spend together, has a significant and positive impact on the children’s overall well-being. Fathers build this connection through interaction in the context of leisure activities, work or play activities and educational activities, and it is during this time when communication between fathers and their teenage children occurs primarily – in participating in shared activities. [18] Communication between fathers and sons may be more likely to occur in the context of shared activities and interests, whereas fathers and daughters may tend to more directly engage in conversation outside of activities and in direct face-to-face interaction. [19]

Indeed, it cannot be denied that fathers play an important role in the lives of their children. It is not his mere presence, per se, but his connection to children that is pivotal. It is important to recognize that strong connections can have beneficial effects, but the opposite is also true: poor connections can have adverse effects. Fathers, it seems, really do matter. [20]

The absence of a father can be a profound problem. In the lives of children who had absent fathers they tend to be more prone to be unable to form healthy, emotionally intimate relationships with their peers. There is significantly greater risk of drug abuse, smoking, alcohol abuse and other risk-seeking behaviors. There also tends to be problems managing social situations requiring empathy. Over their educational careers, children with poor or non-existent relationships with their fathers tended to have worse academic achievement than their peers with positive relationships with their fathers. [21]

The effects of the father-child relationship reach far into adulthood. Those with positive relationships with their fathers are more likely to get involved in intimate relationships and have fewer problems developing healthy, physically intimate relationships. Those with poor relationships with their fathers tend to be less likely to be involved in relationships, have more difficulty maintaining them, and demonstrate significantly more trouble in adapting to changing social circumstances. [22] The ability to develop intimate relationships with their partners is limited among those whose thoughts of an absent father caused a marked rise in negative emotions and distancing. A balanced father-child relationship significantly affects the ability to form and sustain intimate relationships in adulthood. [23] However, the potential for developing intimate relationships exists even when a father was absent during childhood. Those who overcome their difficulties as they mature make it possible to establish quality intimate relationships. [24]

Separation of the parents is a growing cause why children experience growing up under the custody of one parent. The other noncustodial parent gets to spend time with his children weekly, or sometimes even just monthly. This lack of quality time during the different stages of the children’s growing up years has an effect on the development of the children, couple with it the fact that they know they belong to an abnormal or dysfunctional family – all the more reason should these children be able to maintain direct and regular contact with the noncustodial parent.

Children who are products of a broken marriage have a lot of insecurities facing them that make their struggle for stability in relationships difficult and hard to achieve. Most of them need more attention, assurance, admiration just to make themselves feel secure, special, needed and stable. [25] Indeed, just being a member of an “abnormal” family may affect the development of the children, as compared to children who are part of a normal, whole family.

That is why despite the separation of the parents, effort should be made to somewhat maintain a normal and healthy relationship for the benefit of the children. Children should still be able to communicate and connect freely with the noncustodial parent, as well as to spend time with the latter. The children should be able to keep a balanced emotional connection with both parents that would facilitate healthy adjustment in perception of self and social relationships. [26] This is the ideal situation for children who are the products of broken marriages. This can only be achieved when the custodial parent respects the noncustodial parent’s exercise of his right of visitation, so that the children are exposed to a healthy relationship with their parents, despite the separation. In line with this, the custodial parent should also strive not to destroy the image of the noncustodial parent in the mind of the children, who might nurse hatred or indifference towards the noncustodial parent.

D. Enforcement of Visitation Rights

Despite the existence of a previous agreement regarding the custody and visitation of the children between the parents, whether the children be legitimate or illegitimate, or a decision expressly stating the visitation rights of the noncustodial parent, there are still instances when the custodial parent refuses to honor the previous agreement or the decision of the court.

When a parent is being deprived of his/her visitation rights, he or she may resort to filing an action for “Custody and/or Enforcement of Visitorial Rights Over a Minor with Application for a Writ of Preliminary Injunction”. This is what happened in Habaybeh v. Mallare-Philipps, [27] as shown above.

A noncustodial parent has also resorted to filing a petition for habeas corpus, with a motion seeking visitation rights, as was the case in Laxamana v. Laxamana, [28] where the father filed this petition and the court issued an order granting visitation rights to the father.

However, in both of these two cases mentioned above, the visitation right was a mere adjunct to the main case for the custody of the children, and not the main case involved. In other words, enforcing visitation rights is just ancillary to a petition for custody or petition for the issuance of a writ of habeas corpus. This is a condition sine qua non before the court can help in enforcing the noncustodial parent’s visitation rights. [29] There has been little jurisprudence tackling this issue of visitation rights of a parent as the main issue.

In some other cases, the parents themselves entered into an agreement regarding the custody of the children and the visitation of the noncustodial parent, with a provision that failure by a party to abide by the agreement will make him/her liable for contempt of court, and this was submitted to the court for approval, as was the case in Bruan v. People. [30] But care should be taken that the agreement be not contrary to Article 213 of the Family Code, for any agreement going against the Tender Years Presumption is null and void. [31] Aside from the judicially approved agreement, the noncustodial parent can also base his motion to cite in contempt of court the judicial decision when there has already been a case.

So another remedy for the noncustodial parent is to file a motion seeking to hold the custodial parent liable for contempt of court under Section 3 of Rule 71 of the Rules of Court, which provides:

Sec. 3. Indirect contempt to be punished after charge and hearing. – After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt:

xxx xxx xxx xxx xxx xxx

(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;

xxx xxx xxx xxx xxx xxx

(Emphasis supplied)

In some instances, just the mere filing of a motion to cite the mother in contempt of court for violating the judicially-approved agreement or disobeying the decision of the court is enough to “scare” the mother into upholding the agreement. [32] But if this is not enough to induce her to comply with her end of the agreement or the decision, then contempt proceedings will be held, and she may be found liable for contempt of court, the decision of which will be implemented by the sheriff. [33] Hopefully, it doesn’t come to that.