The National Bureau of Investigation could not locate Pulupandan Mayor Magdaleno Peña and his 3-year-old son in Negros Occidental as of yesterday, NBI Bacolod chief Mamerto Cortez said.

Cortez said the Supreme Court Third Division has directed the NBI to turn over custody of the child from Peña to his mother, actress and television host Marie Roxanne “Plinky” Recto.

However, he said NBI Bacolod Special Investigator Geovel Aperio went to Barangay Ubay, Pulupandan, where Peña lives but he was not there.

Recto and Peña have been locked in a long legal battle over custody of their son.

The SC said turning over of the child to Recto was in partial execution of a Court of Appeals decisions on Sept. 15, 2006 and Jan. 24, 2007 pending final resolution of the case on the child's custody.

In granting the motion for execution filed by Recto pending appeal, the court notes that the boy is below seven years old and is an illegitimate child.

Under Article 176 of the Family Code illegitimate children shall be under the sole parental custody of their mother, the SC said.

“She has the right to keep him in her company. She cannot be deprived of that right, and she may not even renounce or transfer it except in cases authorized by the law.

“Only the most compelling of reasons such as the mother's unfitness to exercise sole parental authority shall justify her deprivation of parental authority and the award of custody to someone else,” the SC said.

Article 213 of the same code further provides that no child under seven years age shall be separated from the mother, it added.

Bearing in mind the best interest of the child pending final resolution of the custody case, the SC ruled that the boy be with his mother.

Peña, when reached on his cellular phone for comment yesterday, told the DAILY STAR he was traveling in the south and that his son was with him.

He, however, would not say if “south” meant in Negros, in the Philippines , or out of the country.

Peña said with all due respect to the SC, under rule 45 of the court, the questioned decision of the CA should have been stayed until its final reconsideration.

The policy of the SC has been for both parents to have shared custody in the upbringing of their child, Peña said.

Peña said he will bring the child to the SC in time.

Recto's lawyer, Evalyn Ursua, in an interview over ANC yesterday, said Peña as a lawyer should follow the SC order or he may be cited for contempt.

“Our problem is we do not know where he is, we are worried about the child because we have received reports that he is separated from his father and is in hiding, this cannot be good for him,” she said.

The NBI has to answer to the SC on why it cannot find Peña who has been granting interviews to the media, Ursua said.

She said they plan to ask the SC to issue a warrant of arrest for Peña and have him cited for contempt for failure to deliver the child to Recto immediately.

Peña, also on ANC, said “I am not running away, I am in touch with the NBI.”

The mayor said he is filing a motion to seek clarification of the SC order, adding that he has the right to file a motion for reconsideration in the next few days.

I will ask the SC for early oral arguments, he said.*CPG

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