Unforgettable Legal Stories

A morally unfit mother?

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Sometimes, being born beautiful and well-to-do can be a bane rather than a blessing.  This was the case of Beverly Fabernado,* the daughter of an American woman and a wealthy Filipino landowner who died in a car accident when Beverly was 8.  Fortunately, her widowed mother was left with a generous trust fund and inherited real estate assets that allowed Bev and her younger brother to continue living in comfort in Dasmariñas Village, Makati.

Bev was a college student at a private school for girls in the 1980s when her friends and classmates urged her to join a national beauty contest.  To her own surprise, she won and traveled to Paris where the international pageant was held.  She did not win, but returned to a whirlwind of parties in Manila where she was the center of attention and was courted by numerous men.

It was at one of these glittering cocktail parties that she met Khalid Nabavi,* a handsome entrepreneur from Rabat, Morocco. Khalid pursued her more ardently than any of her other suitors and showered her with luxurious gifts. He was fluent in English, having been schooled in London, and had the manners, vocabulary and wardrobe of a gentleman to the manor born.

Bev was dazzled.  Khalid urged her to convert to Islam so that they could have an Islamic wedding. Over the objections of her mother, Bev, 20, became a Muslim and four months later married Khalid, then 32, in Islamic rites in 1988.

After the wedding, Bev found out soon enough what kind of man Khalid really was. He was cruel and abusive and subjected her to sodomy, marital rape and violence in the privacy of their bedroom.

“I’ve known Bev for a long time, since we were students,” says her legal counsel, Howard Calleja. “She told me about her ordeal and gave details so shocking and sensitive that I sometimes had to ask a female assistant to be present when she consulted me in my office.”  Bev had approached Calleja after her marriage broke down and she went to court for the custody of her children.

The newlyweds had settled in the house that Khalid was renting in Forbes Park, but when Bev became pregnant with their first child, her husband had insisted that they travel to Rabat so she could give birth there.  A boy, Hassan, was born to them in 1989.  Every time Bev was expecting a baby, Khalid would bring her to Morocco.  Two more children, a girl they named Yalda and another girl they named Hafeza were born in Rabat in 1990 and 1991, respectively.

Bev did not know that when she married Khalid, he was still married to a Moroccan woman in Rabat.  He divorced this wife later, but this did not improve matters for Bev.  Despite his continued abuse, she could not escape because that would mean abandoning her young children. In 1992, Khalid decided that they should migrate to Rabat so that the children could be raised and educated in his homeland.

Residing in his parents’ palatial home in Rabat, Khalid became even more cruel and abusive towards Bev. Sometimes when he was at home, he would have sex with a girl in one room then transfer to another room for more sex with another woman.

Bev endured Khalid’s abuse in Rabat for two tortuous years before she fled with the children, hiding in the homes of sympathetic friends and securing passports from the Philippine embassy.

She and her children were welcomed back in Manila by her mother, who invited them to live with her.  Bev converted back to the Catholic faith, had her children baptized as Christians, had their surnames changed from Nabavi to Fabernado and enrolled them in a private school in the village. Meanwhile, she also went to the Regional Trial Court and filed for nullity of marriage, custody and support.

Countering her moves, Khalid filed with the Shari’a District Court in a city in Mindanao an action to obtain custody of his legitimate children who were still minors. They exchanged filed motions, with Bev asking for a dismissal on the grounds that the Mindanao court did not have jurisdiction, and Khalid asking for a TRO that would prevent Bev from stopping his exercise of authority over his children.

Khalid alleged that he could not see his children until he got an order from the court.  Even with a court order, he said he could only see his children in school. He also argued that Bev was morally unfit to have custody of his children because on various occasions she was seen with different men late at night in Manila, and was often seen wearing short skirts, sleeveless blouses and bathing suits, clothing considered detestable under the Islamic law on customs.

Further, Khalid claimed that after the children came home from school, Bev would make them sweep the neighbor’s house for P50.  And that whenever he saw them in school, the children were happy to see him but were afraid to ride in his car.  Instead, they would ride a jeepney to and from school.

The Shari’a District Court, while holding that P.D. No. 1083 on Custody and Guardianship of the Code of Muslim Personal Laws-which Khalid cited in his petition for a TRO-does not apply in this case because the spouses were not yet divorced, found respondent Bev unworthy to care for her children.

“A married woman, and a mother to growing children, should live a life that the community in which she lives considers morally upright, and in a manner that her growing minor children will not be socially and morally affected and prejudiced.  It is sad to note that respondent has failed to observe that which is expected of a married woman and a mother by the society in which she lives,” the Shari’a District Court ruled.

The Shari’a Court also found that Khalid was capable both personally and financially to look after the best interest of his minor children.

Reviewing the Shari’a Court’s finding, the First Division of the Supreme Court said that as a rule, factual findings of the lower court are final and binding and that the SC is not required to examine evidence submitted by the parties.  However, although the SC does not try facts, it has the authority to review or reverse the factual findings of the lower courts if it finds that these do not conform to the evidence on record.

“The burden is upon respondent to prove that petitioner is not worthy to have custody of her children,” the SC said.  “We find that the evidence presented by the respondent was not sufficient to establish her unfitness according to Muslim law or the Family Code.”

Now that Bev was no longer a Muslim, the SC continued, what determines her competence is the standard set by the Family Code. The SC noted that Bev was equally financially capable of providing for all the needs of her children.

The welfare of the minors is the controlling consideration on the issue, the SC emphasized. Article 211 of the Family Code provides that the father and mother shall jointly exercise parental authority over their common children, a thought echoed by P.D. No 1083 of the Muslim Law when the parents are not divorced or legally separated.

The SC did not doubt the capacity and love of both Khalid and Bev for their children.  Either parent may lose parental authority only for a valid reason.  In cases where both parents are voluntarily separated, the SC determines which parent can take better care of the children.

Although the SC saw the need for the children to have both a mother and a father, it believed that Bev had more capacity and time to see to the children’s needs.  Being a businessman, Khalid had to travel most of the time as demanded by his job.

The SC also cited P.D. No. 603 that says that without any compelling reason to do otherwise, the custody of minor children is given to the mother. The SC therefore granted Bev’s petition for custody of her three children until they reach majority age, and set aside the lower court’s decision.

However, the award of custody to the wife did not deprive the husband of parental authority.  Thus, the SC granted visitation rights to Khalid as his constitutionally protected right.  He could visit the children at least once a week but could only take them out with Bev’s written consent.  The court also ruled that both parents shall have joint responsibility over the expenses involved in rearing their children. •

*The names of people used in this story are fictitious and do not refer to any real persons living or dead. This story is based on a case handled by Atty. Howard M. Calleja, a 1994 Ateneo de Manila Law School graduate. Calleja earned his Master’s in Law from Duke University in 1997 and is senior managing partner of the Calleja Law Office in Pasig City.

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