MAY the minor children intervene in the same custody proceeding instituted by one of their parents against the other?
This question was answered in the negative by the Court of Appeals (CA) Ninth Division in a decision on August 31, 2023, which affirmed the ruling by the Regional Trial Court (RTC) of Taguig City denying the motion filed by two minors seeking to intervene in the custody case lodged by their father against their mother following their separation in 2019.
The minors through their counsel invoked their direct legal interest in the case as the affected parties in their parents’ custody battle.
They also prayed that technicalities in the Rules of Court be set aside in resolving the issue for their best interest.
However, the CA ruled that there was no grave abuse of discretion on the part of the trial court in denying the plea for intervention of the two minors.
The CA noted there is nothing in the Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody that allows intervention of minor children in custody suits.
Likewise, the CA said there is no existing jurisprudence, doctrine or pronouncement from the Supreme Court to serve as basis for minors to intervene in custody suits of their parents.
“Clearly, the absence of jurisprudence regarding the intervention of minor children in custody suits speaks volumes against its procedural propriety,” the CA said in a decision penned by Associate Justice Jaime Fortunato Caringal.
“At best, grave abuse of discretion may only be ascribed to a tribunal for its failure to follow, or for going against, prevailing jurisprudence; and not in a situation where there is as yet no precedent on the subject matter, as in this case,” it added.
The case stemmed from the November 19, 2019 custody petition with ex-parte motion for the issuance of a hold departure order (HDO) filed by Andrew Douglas John Colquhoun against his estranged wife Zarema Colquhoun to regain custody or establish visitation rights and communication rights with his children and to prevent his wife from leaving the country with them.
Prior to the filing of the petitioner, Andrew filed for divorce in the United Kingdom, where they got married. This was eventually granted by the court on March 19, 2019.
On November 19, 2019, Andrew filed the custody case with motion for the issuance of a hold departure order (HDO) against Zarema, who has been based in the Philippines since 2018 after landing a job at the Asian Development Bank (ADB).
Despite several summons compelling her to participate in the legal proceedings, Zarema refused to appear before the court, prompting Andrew to file a motion to declare her in default.
Consequently, the Taguig RTC issued an order declaring Zarema in default for failing to file her answer to the custody petition and her comment to the motion to declare her in default.
On July 22, 2020, Zarema attempted to leave the country together with her two children.
However, they were not permitted to leave due to a pending HDO which had been granted and issued by the trial court.
On June 21, 2021, Zarema filed an urgent motion to travel for purposes of Covid-19 vaccination either in the UK or in Hong Kong, which was denied by the court.
She also filed a manifestation and motion to allow her and her children to leave the Philippines on the ground that her employment contract with ADB had ended and that she already secured employment in Hongkong.
This was also denied by the court and scheduled the main case for custody for pre-trial on November 22, 2021.
However, the pre-trial did not push through after their two children through counsel filed a motion for intervention.
On February 28, 2022, the trial court denied the motion, noting that the children, being minors, have no legal capacity to do actions on their own and cannot even enter into contracts without the assistance of their parent guardian.
In upholding the trial court’s decision, the CA noted that the motion for intervention “is nothing but an afterthought and a desperate attempt on the part of Zarema to maintain her participation in the proceedings despite an earlier declaration of default against her.”
“It does not likewise escape this Court’s attention that aside from the fact that the motion for intervention filed by the petitioners unduly caused delay in the proceedings, it echoed the same arguments and reliefs prayed for by Zarema in her other pleadings before the RTC. To our mind, Zarema is trying to do indirectly what she can no longer do directly, i.e., to participate in the proceedings, by circumventing her default status. This We cannot permit,” the CA stressed.
The CA further explained that allowing the minor children to intervene in the same case that determines who has the right of custody over them would be “absurd.”
It pointed out that Section 2 of the Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors, states that a petition for custody of minors may be filed by any person claiming such right.
Thus, the CA stressed that only those who exercise parental authority over the minor child have the right of custody over him or her.
“Common sense dictates that a minor child may not exercise a parental authority over himself or herself,” it added.
