Dear PAO,

I was informed by my ex-boyfriend that there was a crime in our laws called “Abandonment of Minor.” He said such crime penalizes a person charged with the custody of a child, below 7 years of age, for abandoning the latter. For context, I was threatened with prosecution for such crime by my ex-boyfriend for answering an emergency, and temporarily leaving my son, aged 5, in front of our neighboring houses. Coincidental to such incident, he was passing by the street at the time and found our child alone. He was greatly mad with me, and grumbled his desire to take custody of our child. Be that as it may, may I know if I am liable for the aforementioned crime? Grechel

Dear Grechel,

The answer to your question is no. To elucidate this point, allow me to lead your attention to our pertinent law and jurisprudence. Succinctly, Article 276 of Act 3815, otherwise known as the Revised Penal Code, as amended by Republic Act 10951, reads:

“Art. 276. Abandoning a minor. – The penalty of arresto mayor and a fine not exceeding One hundred thousand pesos (P100,000) shall be imposed upon anyone who shall abandon a child under seven (7) years of age, the custody of which is incumbent upon him.

“When the death of the minor shall result from such abandonment, the culprit shall be punished by prisión correccional in its medium and maximum periods; but if the life of the minor shall have been in danger only, the penalty shall be prisión correccional in its minimum and medium periods.

“The provisions contained in the two (2) preceding paragraphs shall not prevent the imposition of the penalty provided for the act committed, when the same shall constitute a more serious offense.” (Emphasis and underscoring supplied)

The foregoing defines, and penalizes the crime of abandonment of minor. The said law dictates the following elements of the crime, viz.:

a) The child must be under seven (7) years of age;

b) The offender must have custody over the child;

c) There must be an intent to abandon the child; and

d) Lack of intent to kill the child.

In the case of People v. Bandian (GR 45186, Sept. 30, 1936), penned by Associate Justice Anacleto Diaz, the Supreme Court emphasizes the importance of intent to abandon in order to be held liable for this crime, thus:

“Infanticide and abandonment of a minor, to be punishable, must be committed willfully or consciously, or at least it must be the result of a voluntary, conscious and free act or omission. Even in cases where said crimes are committed through mere imprudence, the person who commits them, under said circumstances, must be in the full enjoyment of his mental faculties, or must be conscious of his acts, in order that he may be held liable.

“x x x

“The act performed by the appellant in the morning in question, by going into the thicket, according to her, to respond to call of nature, notwithstanding the fact that she had fever for a long time, was perfectly lawful. If by doing so she caused a wrong as that of giving birth to her child in that same place and later abandoning it, not because of imprudence or any other reason than that she was overcome by strong dizziness and extreme debility, she should not be blamed therefor because it all happened

by mere accident, from liability any person who so acts and behaves under such circumstances x x x.” (Emphasis and underscoring supplied).

Applying the above-mentioned jurisprudence to your query, the absence of intent to abandon, and the fact that the cause of the apparent abandonment was due to an emergency — would definitely negate intent to abandon which is an indispensable element of the purported crime. This is especially true if the absence was merely temporary, coupled with the proximity of the place where the alleged place of abandonment from your place of residence.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.