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Child migration! Children migrating to or visiting Australia from the Philippines must have the expressed permission of all parents with legal custodial rights over that child. Without that permission, the child cannot travel. This applies if any parent has custodial rights over the child in their particular country under that country’s laws.

So that means that no children will enter Australia either on an Australian tourist visa or a permanent visa like a partner visa, prospective marriage visa or child visa, without the permission from any custodial parent. And this is taken very seriously, as it should be. Can you imagine how you would feel if you woke up one day and discovered that your child was now overseas somewhere?

child visa or child migrating to australia with a partner visa or tourist visa

Even Dora uses Down Under Visa for her explorer visas!

Do you need to get permission from the child’s biological father?

A very real concern, obviously. And an issue that we at Down Under Visa are fully aware of. Not everyone wants to bring the children to Australia with them, and many don’t, but for those who want to bring the kids this is a major problem and one not to be taken lightly. You cannot expect the Australian Embassy or DIBP to look the other way over matters like this, or it would lead to an international incident.

But back to the question about whether you do need to get permission or not with regard to migrating children from Philippines to Australia. The following is an excerpt from the Family Code of the Philippines, and is from Article 176 of the Code:

Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father.”

What is an “illegitimate child” in Philippines?

This is an archaic sounding word, because it implies that the child is of no value. Children are highly-valued in the Philippines. Anyone who has been here can see this is very obviously the case. Yet the word remains in law, and refers to a child born out of wedlock. If the parents were not married together, then the child is considered “illegitimate”.

  •  What if the father acknowledged his paternity and signed the birth certificate?
  • What if the child is using the family name of the father is his/her own name?
  • What if the father provided support and was a great dad?

Makes no difference under Philippines Law. The child is still illegitimate. Unless the parents later DID legally marry and the child’s status was changed as a result, the child remains illegitimate in the eyes of the law here.

So do you need permission from the father of an illegitimate child?

Simple answer? No. No permission needed, because the biological father has no authority or custodial rights over the child. And the Embassy know this already.

What if the parents of the child were married before?

If the parents of the child, ie. the visa applicant and her ex-husband, were married before? Then the biological father has custodial rights and yes you most definitely DO need his permission. No permission, and the child doesn’t go anywhere. That applies to visits on tourist visas and to permanent migration with partner visas and child visas.

The only time this will not apply is if the court awarded sole custody of the child to the mother. But as with most countries, this does not happen automatically and it doesn’t happen easily.

And note that you will need written permission, using a Form 1229. It will need biological-dad’s signature, contact details and some form of ID. And you could reasonably expect that someone may follow him up to make sure the permission was given freely, and not without his knowledge or when he was drunk on Ginebra!

Fortunately, the culture of using the kids to punish the ex-partner, it’s unusual here in Philippines. Most of the time the ex will put the needs of the child first, and will know that the child will have a better life in Australia with a proper loving family and plenty of good food and a bright future.

When should the Filipino child come to Australia?
Happy Down Under Visa clients with partner visa grant - David and Cynthia

46 Comments

  1. Minkie Mrtin

    nice information. Thanks for sharing it.

    Reply
  2. Cai Almarinez

    thanks for the information Jeff. Its very helpful to me because I have a daughter and he uses her father’s surname.

    Reply
  3. Doc

    Hi my wife and daughter are coming to Aus for a visit. My wife on a 600 visa. My daughter has both a Filipino and australian passport and will travel on her Aussie passport no visa required. We recently got married in the Phil’s a year after the birth. I was there for the birth and I’m on her birth cert as the father. Does that mean my daughter is illegitimate.
    Does the mother need any authorisation document from me to leave the country with my daughter.
    Thanks

    Reply
    • Jeff Harvie

      Reluctant to comment because I don’t know enough about your situation. Suggest that your wife talks to the local civil registrar about either (a) if your child is illegitimate and if so (b) organising to legitimise her by your marriage.

      And check with DSWD about traveling. Again, I don’t know about your situation.

      Reply
      • Doc

        Thanks Jeff
        If I go on the fact that she is not legitimate. Which would make sense as my wife got a Phil passport for my daughter without any intervention from me. Do you forsee any requirements exiting phils and or arriving in aus if there is no authrising letter from me. Given my wife will be using her Phil passport and my daughter her Aus passport.
        Regards
        Doc

        Reply
        • Jeff Harvie

          I don’t foresee, but not knowing enough I would say contact DSWD

          Reply
  4. Juan Arcaya

    Hi Jeff. Wow is this true? Everyone I’ve spoken to tells me we need the biological fathers signatute. I step son is using the fathers last name and signed the birth certificate acknowledging him. I was told this made him legitimate. There is even a lawyer that told me that even if my wife was granted sole custody, we would still need his signature. My wife and her ex were never married.

    Reply
    • Jeff Harvie

      Talking to the wrong people. The legislation states that you need the permission from anyone with custodial rights within the country where the applicant resides. In the Philippines a child born out of wedlock is under the sole responsibility of the mother, despite whether the father acknowledges paternity or not.

      Reply
  5. AD

    I have the same situation. What should we present to DIBP in case they ask for the biological father’s consent?

    Reply
    • Jeff Harvie

      A completed Form 1229 from the Department

      Reply
      • Ria

        Hi jeff! Will the department of home affairs accept form 1229 only as proof of parental responsibility regarding the above case? I got the same case. I am never married with my ex partner, but was asked by RMA to get consent from the father for my daughters application.

        Reply
        • Jeff Harvie

          Again I’m sorry but I can’t advise you on your own visa application. For one thing we’re not a free service. And secondly it would be unprofessional to give out advice on specific cases that I don’t know enough about. I hope you understand that.

          Reply
  6. Jane

    Hello Jeff. I am currently completing my online application for Australian citizenship. I have a 12YO son who was born out of wedlock. I have submitted Form 1229 years ago when I applied for his 445 dependent child for a permanent partner visa.

    Where I need to attach supporting documents, there are “Required” and “Recommended” supporting evidences. They have listed Ëvidence of “Custody” as a recommended document. Further they state that it should come in the form of “…a court order (or similar) stating you have sole custody of…”

    Do I bother submitting evidence of sole custody as it is only “recommended”? If I do what exactly should I submit. His biological father and I were never married. His name is not acknowledged in my son’s Philippine birth certificate.

    I would very much appreciate your advise on this matter. Kind regards.

    Reply
    • Jeff Harvie

      Jane, I make general comments here only. I’m not going to give you free advice as to how to lodge an application. I need to earn a living.

      Reply
  7. Jane

    Hello Jeff. I am currently completing my online application for Australian citizenship. I have a 12YO son who was born out of wedlock. I have submitted Form 1229 years ago when I applied for his 445 dependent child for a permanent partner visa.

    Where I need to attach supporting documents, there are “Required” and “Recommended” supporting evidences. They have listed Ëvidence of “Custody” as a recommended document. Further they state that it should come in the form of “…a court order (or similar) stating you have sole custody of…”

    Do I bother submitting evidence of sole custody as it is only “recommended”? If I do what exactly should I submit. His biological father and I were never married. His name is not acknowledged in my son’s Philippine birth certificate.

    I would very much appreciate your advise on this matter. Kind regards.

    Reply
    • Jeff Harvie

      Jane, I make general comments here only. I’m not going to give you free advice as to how to lodge an application. I need to earn a living.

      Reply
  8. Jane

    Thank you Jeff. Great advise. I’ll be recommending your company to my friends.

    Reply
  9. Mary

    Hi Jeff, I have 2 sons –one is 5 years old and one a baby 4 months. How many 1229 form should I asked my husband to sign? what if he allows me to take the baby but not the firstborn?

    Reply
    • Jeff Harvie

      Then you have a problem, sorry. If he has legal custody, he has legal custody. You can’t force him.

      Reply
      • Claire

        I have sole custody with court documentation. I also obtained a mobility court order allowing my children to move permanently to Australia. Do I still need form 1229?

        Reply
        • Jeff Harvie

          You only need a 1229 if someone else has legal custody of the child. If your court order is correct, there is no one else.

          Reply
  10. Gerl

    Hi Jeff, does the immigration ask for proof of custody for an illegitimate child that is not acknowledged by the father? Thamks heaps

    Reply
    • Jeff Harvie

      Which proof of custody? Illegitimate children in the Philippines are in the sole custody of the mother.

      Reply
  11. Brenda

    A child that has visited Australia with a grandparent and returned, however, you want to bring the child out permanently without grandparent, can this be done if permission is given by the mother (father is deceased) and without adoption?

    Reply
    • Jeff Harvie

      You should contact the DSWD about that, Brenda

      Reply
  12. CL

    Hi jeff i have a 3yrs old elligitimate child. the father has his own family and kids so basically i was his mistress. He supports the childs need from pregnancy to birth but never show up.he jist send people to do it.but after signing our childs birthcert he told me he wants the custody and take the child to u.s .he his married to a filipina he spend most of the time in the phil because his family lives there. His staff saying he has money and powers and that he his much capable of providing the childs need than me. After i gave birth i decided to buy and build my own house so they won’t little me.i also have work back in the phil. I am married now to an australian and carrying our child.we are now under bva applyingg for Tr Pv. The father doesnt want to sign 1229form which is the embassy requires me to submit.as far as iunderstand i have the full custody since the child is elligitimate. What should i do?

    Reply
    • Jeff Harvie

      You have full custody, yes. Get an attorney to write a letter explaining Philippines law and submit that to them.

      Reply
      • CL

        Thank you jeff ive been following your website and this forum. It is such a big relief for a mother like me who have elligitimate child.

        Reply
        • Mit

          You manage to get Visa without father’s sign? I have the same problem!

          Reply
          • Jeff Harvie

            In Philippines a child born out of wedlock is under the sole custody of the mother. But if the particular country has granted rights to the father, then you need permission unless the court has taken those rights away.

  13. Arvin

    Hi Jeff, if both parents (biological) to the child is married (before the child was born) and emigrating to Australia, do we still need to fill up from 1229? I’m confused as to if this form is only applicable when one of the legal parent/guardian is not emigrating to Australia with the child.

    Reply
    • Jeff Harvie

      Not if both parents are migrating, no

      Reply
  14. ag

    My wife has a son that’s born out of wedlock, we submitted supporting documents showing PH law that an illegitimate child should be under the parental custody of the mother, however, case officer still asked for a parental consent from the biological father.

    Reply
    • Jeff Harvie

      Hello “ag”. Suggest you contact me via the Contact Page on the website. I’m sure we can help put that right.

      Reply
  15. Suren

    Hi Jeff, I have been divorced with my ex wife in 2016 and court’s divorce agreement clearly explains the sole custody of my two children with me and they are solely dependent on me. I have to travel Australia on student visa. I have lodged my application ( jointly with my two dependent children ) and Australian high commission asked to submit the NOC or Consent form ( 1229) from my ex wife ( Biological mother). But she is out of contact and not possible to access. Do I need to submit form 1229 in this context ? What will be the solution?

    Reply
    • Jeff Harvie

      I assume you’re from India from your name? I don’t know what the laws are regarding child custody in India and I don’t manage visa applications from there, sorry.

      Reply
  16. Christina

    Hi Jeff,
    I have a newborn elligitimate baby. I’m required to submit form 1229 but the father did not recognize the baby and also he is not from philippines and I have no more communication with him. I informed the immigration and they asked me to provide a sole custody documentation. What is it? How should I provide that? Thanks.

    Reply
    • Jeff Harvie

      Christina, I don’t know all the details of your case, but under Philippines Law you are the sole custodian of your child if the child was born out of wedlock. I assume they want to see the child’s birth certificate that lists you as the parent. You really need to ask the Embassy.

      Reply
  17. Cecelia Acero

    How to proof to the embassy thay i am a single parent

    Reply
    • Jeff Harvie

      I will assume you are in Philippines? If you are, the child’s birth certificate will show that you are not married.

      Reply
  18. Katherine

    Hi Jeff! I have a 3 yrs old boy and he is illegitimate. I’m planning to migrate in australia with my child. But unfortunately the father filed a custody case against me. We are not married and I dont receive any support for our child. But my child uses the surname of the father. Does that mean I dont have the sole custody because he filed a custody case? Do we need to wait for the court to decide before I can bring the child outside of the country? Or before I can apply for the visa?

    Reply
    • Jeff Harvie

      I think you need to speak to an attorney about this, Katherine. I suspect he has no case, however I’m not a Philippines attorney and this is outside the area of my expertise.

      Reply
  19. Adam

    My daughter is CBD and has a Australian passport. I’ve heard there is a new requirement for my daughter to leave the Phillipines. My daughter doesn’t have a Philippines passport. Which department will I need to attend to get this clearance?

    Reply
      • Cecilia

        Hi Jeff,
        Im a Filipina and i have Australian citizen boyfriend. He sponsored me to come in Australia. I have my second visa application granted for 9 mnths. We planning to apply partner visa next to bring my son here in Australia. I have 6 yrs.old son in Philippines on my mother and we are not married the father of my son but my son using his surname . My question is

        Do i need his consent?
        What are the requirements i need to show to prove the custody of my son?

        Hope you can help us.thanks

        Reply
        • Jeff Harvie

          Under Philippines Law (Family Code of the Philippines), a child born out of wedlock is the sole responsibility of the mother. You need no proof other than his birth certificate.

          Reply

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