Claiming Child Support from an Ex‑Husband Who Now Has a New Family

Philippine legal perspective

1. Governing Law & Basic Principles

Source	Key Points
Family Code of the Philippines (Exec. Order No. 209, Arts. 194‑208)	• “Support” covers everything indispensable for sustenance, dwelling, clothing, medical care, education and transportation. • Obligation is both parental and reciprocal: children may demand support from parents; parents may in turn ask support from children when in need. • Support takes precedence over all other obligations except debts due the State.
Republic Act No. 9262 (Anti‑VAWC Act)	Refusal or failure to provide financial support can qualify as economic abuse—a criminal offense punishable by imprisonment and/or fine.
Rule on Interim Support (A.M. No. 02‑11‑12‑SC)	Allows a petition for support or a Motion for Support pendente lite to secure immediate relief while a main case (e.g., nullity, custody) is pending.
Rule on Administrative Adoption & Alternative Child Care (RA 11642)	When parental authority is terminated, support obligation may pass to adoptive parents, but arrears prior to adoption remain collectible from the biological father.

Equal priority: Legitimate and illegitimate children share proportionally in the father’s resources (Art. 199 & 201, Family Code). Children from the first family do not lose priority just because a new family exists.

2. Who May Demand Support

Eligible Claimant	Representative (if minor)
• Legitimate, legitimated, or adopted child	The child’s mother or court‑appointed guardian
• Illegitimate child	The child’s mother (even if parents never married)
• Incapacitated adult child (physical/mental disability)	Incapacitated child, or guardian ad litem

Note: A parent may be compelled to support a child until the child finishes college or its equivalent, provided the child shows serious and diligent effort (jurisprudence: Lim‑Lua v. Lua, G.R. 175279, 2010).

3. Determining the Amount

Need‑and‑ability test (Art. 201):
- “In proportion to the resources or means of the giver and the necessities of the recipient.”
Standard of living: Courts often look at the lifestyle the child enjoyed before the separation.
Proof of income:
- Pay slips, ITRs, business permits, bank records, social‑media posts evidencing spending, even OWWA/POEA records if working abroad.
Partial inability of father: If funds are limited, children of both families share pro‑rata. Courts may direct the mother to contribute only if she has separate capacity to do so (Art. 195).

4. Where & How to File

Scenario	First Step	Proper Court / Office
Father resides same city/municipality	Settle via Barangay Katarungang Pambarangay mediation (unless violence alleged)	Barangay Lupon; if no settlement, get a Certification to File Action
Ongoing marriage but deserted	File a Petition for Support (Special proceeding)	Regional Trial Court (Family Court)
Marriage being annulled/voided	Include a Motion for Support pendente lite in the main case	Same RTC‑Family Court
Father abroad or whereabouts unknown	Petition for support + Service by Publication / Email / Consular Service	RTC; DFA assists
Refusal despite demand & arrears mounting	File a VAWC complaint for economic abuse (RA 9262)	Any prosecutor’s office or barangay; may also seek BPO/TPO for interim support

Venue rule: Choose the RTC‑Family Court where the child resides or where the father may be found (Sec. 3, A.M. 03‑04‑04‑SC).

5. Evidence & Practical Tips

Document needs: tuition assessment, medical receipts, grocery lists, lease agreements.
Affidavit of mother/guardian narrating lack of support.
Photos/screenshots (e.g., father’s social‑media posts of new assets or travel).
Certification of non‑payment from school or utility providers.
Computation sheet itemizing monthly expenses; attach receipts to strengthen credibility.
Attempts to seek amicable settlement (texts, emails); helps establish bad faith and may support RA 9262 case.

6. Interim Relief & Enforcement

Remedy	Effect
Support pendente lite (Rule 61)	Quick order—usually within 30 days—directing father to pay a provisional amount while case is pending.
Income withholding order	Court may order employer/Pag‑IBIG/SSS to remit directly to the child/mother.
Contempt of court	Non‑compliance may lead to fines or jail term (Rule 71).
Garnishment/Levy	Assets, bank deposits or real property may be seized for arrears.
Hold Departure Order (HDO)	Issued to prevent father from leaving the country to evade payment.
VAWC protection order	Includes command to pay support; violation is a separate criminal offense.

7. Criminal Liability under RA 9262

Economic abuse is penalized by prisión correccional (6 months + 1 day to 6 years) and/or fine ≤ ₱100,000, plus mandatory psychological counseling.
Each missed monthly support may be treated as a continuing offense, extending prescriptive period (see People v. Malana, G.R. 233411, 2018).
Conviction does not erase civil obligation to pay full arrears with legal interest (currently 6% p.a.).

8. When the Father Cites His “New Family”

No automatic reduction: Filipino law does not allow a parent to simply prioritize a second family; the obligation is shared.
Motion to adjust: He may seek downward modification but must prove substantial change in circumstances (loss of job, illness).
Bad‑faith defense: Concealment of income (e.g., transferring assets to new spouse) can be challenged and may support contempt or fraud findings.
Equal apportionment rule: If resources truly insufficient, court allocates proportionally among all minor children—regardless of legitimacy.

9. Overseas Filipino Worker (OFW) Fathers

Court can serve summons through the Philippine consulate; non‑appearance may lead to ex‑parte reception of evidence.
SSS/GSIS & OWWA benefits: can be garnished for support under Executive Order #157.
POLO certification of salary may be used to compute capacity.
If father acquires foreign citizenship without lawful divorce recognized here, his support duty subsists; dual obligations may exist in both jurisdictions.

10. Tax & Support

Child support is not taxable income to the recipient and not deductible to the payor under Philippine tax law.
Failure to pay support is separate from tax issues, but undeclared income uncovered during support proceedings may trigger BIR audit.

11. Frequently Asked Questions

Question	Short Answer
Can I waive child support?	Any waiver is void; a child’s right to support is inalienable.
How long can I claim arrears?	Ten‑year prescriptive period from the time each support obligation became due.
Can I claim retroactive support before filing?	Yes, from date of extrajudicial demand (e.g., demand letter) or filing of action, whichever is earlier.
Does cohabiting with a partner affect my claim?	The child’s right is independent of the mother’s relationship status.
What if the father is unemployed?	Court may impute potential income based on education, work history, or “capacity to earn.”

12. Practical Roadmap

Collect evidence of the child’s needs and father’s means.
Send a formal demand letter (keep proof of service).
Attempt barangay mediation (unless VAWC applies).
File Petition for Support + Motion for support pendente lite.
Seek enforcement orders once judgment or interim order issues.
Parallel criminal action under RA 9262 if non‑payment persists.
Monitor compliance; update court of any changes in father’s income or new obligations.

Conclusion

Under Philippine law, a father cannot escape or diminish his duty to support earlier‑born children merely by starting a new family. Courts balance the needs of the child against the resources of the father, but the right to support is deemed absolute and inalienable. Prompt assertion of the claim, backed by solid documentation and knowledge of available enforcement tools—civil, administrative, and criminal—ensures that the child’s welfare remains paramount.

This article is for general information only and does not substitute for individualized legal advice. For personal guidance, consult a Philippine family‑law practitioner.

Claiming Child Support from an Ex‑Husband Who Now Has a New Family