Whamonette issue: cohabiting with a minor, mother's custody

According to a report by News5, the mother of Antonette Gail Del Rosario is poised to drag Kim Whamos Cruz, 24 years old, into the "Tulfo Court" to allegedly take back custody of Antonette who is a minor.[1] The two are a famous Internet love team called "Whamonette."[2]The questions now are:

1. Whether or not the mother can successfully take back custody of her underage daughter; and
2. Whether or not Whamos can be held liable for allegedly cohabiting with a minor.

Anent the first question, it must be noted that the law says: "Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being."[3] Moreover, under the same law, it is mandated: "Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority."[4]

When the law says "unemancipated children," it refers to minors, i.e., those aged below eighteen (18) years. Hence, a parent has rightful custody over his/her minor child and a remedy is available under the law to recover such custody.[5] Of course, valid reasons may exist for another person to take possession custody of a child such as but not limited to saving the minor from abuse; however, such person taking custody of the minor must make sure that the act is permissible by law because "kidnapping and failure to return a minor" is a crime punishable by the Revised Penal Code.[6] Aside from Article 270 of said Code, Article 338 also punishes "simple seduction."[8]

Worse, the broad language of Republic Act No. (RA) 7610[8] allows an interpretation that Whamos' act can be considered as "abuse" or "exploitation." Under Section 10 of said law on "other acts of abuse," any "person who shall commit any other acts of child abuse, cruelty or exploitation or to be responsible for other conditions prejudicial to the child's development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period." It takes a little imagination to come up with an argument that certain videos or photos by Whamonette on the Internet can be considered as "prejudicial to the child's development."

Even Section 5 of RA 7610 is broad enough to be interpreted to cover the complaint of Antonette's mother. Said provision says: "Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse." A creative lawyer may argue that appearance in social media videos and earnings on Internet content may be considered as "any other consideration."

The possible defense of Whamos, on the other hand, is lack of criminal intent. He may argue that Antonette has made a willful, informed and voluntary consent to live with him. At any rate, those crimes mentioned above are considered mala in se,[9] even those covered by RA 7610.[10]

In the video above, the lawyer said that the age of consent is 18. This is not accurate.[11]

[1] https://www.facebook.com/News5Everywhere/photos/a.450604008429692/2690487821107955/.

[2] https://m.facebook.com/News5Everywhere/photos/pcb.2677331629090241/2677331475756923/?type=3&source=49.

[3] Article 209, Family Code of the Philippines.

[4] Article 211, id.

[5] Bagtas v. Santos, 606 SCRA 101, 111 (27 November 2009).

[6] Art. 270. Kidnapping and failure to return a minor.—The penalty of reclusion temporal shall be imposed upon:

Anyone who shall kidnap a child under seven years for the purpose of permanently separating said child from his parents or guardians or the persons charged with his custody.

Any person who, being entrusted with the custody of a minor person, shall deliberately fail to restore the latter to his parents or guardians.

[7] ART. 338. Simple seduction.—The seduction of a woman who is single or a widow of good reputation, over twelve but under eighteen years of age, committed by means of deceit, shall be punished by arresto mayor.