Custody of children is one of the most intense aspects in family litigation. A custody battle could be an independent case or a mere incident in an annulment/separation case. Some basic matters pertaining to child custody under Philippine laws are discussed below.
In custody disputes, what is the paramount criterion?
The paramount criterion in custody disputes is the welfare and well-being of the child, or the best interest of the child. The court, in arriving at its decision as to whom custody of the minor should be given, must take into account the respective resources and social and moral situations of the contending parents. Nevertheless, this primordial rule can override the rights of one or both parents over their children.
What is the general rule as to custody over children?
The general rule is that a child under seven years of age shall not be separated from his mother, which is based on the basic need of a child for his mother’s loving care. Article 213 of the Family Code provides that “[n]o child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” This is more pronounced in case of illegitimate children, as the law expressly provides that illegitimate children shall be under the parental authority of their mother.
Is this rule absolute?
This rule is not absolute. Even a mother may be deprived of the custody of her child who is below seven years of age for “compelling reasons.” Instances of unsuitability are neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable illness. Negligent and careless failure to perform the duties of parenthood is a significant element of abandonment, regardless of actual intention. A strong basis for a finding of the parent’s abandonment of his or her child is found in the case where the parent has left the child permanently or indefinitely in the care of others, given it to another, or surrendered it entirely.
I left my child with a relative, even signing a document to such effect. Am I barred from taking back my child?
Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children’s home or an orphan institution. When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same.
Is the court bound by such preference of a child below 7 years of age?
While such choice is given respect, the court is not bound by that choice. The court may exercise its discretion by disregarding the child’s preference should the parent chosen be found to be unfit, in which instance, custody may be given to the other parent, or even to a third person. Decisions on custody of children are always open to adjustment as the circumstances may warrant.
[See also Child Custody of the Father and Mother, Visitation Rights in the Philippines]
- Twin-Notice Rule and Procedural Requirements in Employment Termination Proceedings - June 3, 2020
- When Travel Pass is Needed for Interzonal Travel during Community Quarantine - June 1, 2020
- Can Companies Compel Employees to Work during the General Community Quarantine (GCQ) and Impose Disciplinary Sanctions - May 29, 2020
helo aty.need help ung anak ko po 6 yrs old na xa ngayon nghiwalay po kmi ng dady nya pero galing po naisip ko sake nya pra sa future nya pumayag ako na iwan mo na xa sa custody ng dasy nya.pero ang ate ng dady nya ngsuport ng anak ko nun pero bumibigay po aq kunti pra sa bata hindi ko po pina pabayaan obligasyon ko until now..gusto ko po sana kunin anak ko pra mabantayan ko po talaga maipakuta ko po love ko sa knya dun ko po ipastay xa sa mom ko at ako ay mg abroad mkukuha ko po ba ang anak ko?kasi ung lola nya mama ng dady niya ayaw ibigay pero alam nla kung nsa akin ok ang bata ung anak nla prang walang pkialam independent p sa kanila…help po atty..salamat..
hi i have concerns about my son and daugther..after 8 years na sa iisang bobong kami ng partner ko i decided to separate from him and hindi kami kasal gusto ko lang sa akin ang mga bata..ngayon po hindi po niya kaya financially gastusan lahat ng needs ng mga bata so heto ako sa abroad at nasa mama ko ang mga bata. pero ayaw ko na mkipag sama sa kanya..ano po ba mabuti neto?? please help po ano po ba dapat kong gawin dadaan ba kami ng attorney for legal custody kasi sure ako kukunin niya ang boy ko..hindi nman kami kasal..ang boy ko 7yrs old this year at 4 yrs old ang girl ko
If you would like to post a comment of your personal experience in the matter, then please feel free to do so… If you want all your legal problems resolved in a “blog” then good luck to you in your custody battle or issues because you obviously cannot afford a lawyer.
You are all blasting your personal lives on the internet expecting that a lawyer who gets paid hundreds of pesos an hour to advise others will feel sorry for you and reply back.
Thank you atty for your feedback here. People pay money for advice on the very things you have provided here. Sadly, for the culture here, no one respects the fact that you are doing them a favor by educating them on these facts and the fact that you still have a job which is to advise.
Even as a foreigner in a custody battle of my own, I understand that these individuals have no respect for education, usually because of the lack thereof. I don’t have to worry about the understanding of this statement as you will understand and they will not. Simple fact is that you are doing the public a service and you owe nothing to those requesting free help.
This is not an ego boost but just as lawyers need to be humble at times, freeloaders also need to respect education and the money it cost to become an expect in your field.
Take care sir and thank you for your article/blog. It was highly informative.
I am working in Dubai for the past 5 yrs, my 21yrs old daughter is also here for more than a year. I left my son in the custody of my husband since then. Now my 11yrs old son wants to live with us & leave his father for some reasons. According to him, his father is having an affair with other girl to the extent of bringing her home & sleep in the same bed with my husband in the presence of my son. Can I get the custody of my son without the need for court hearings? Please help me.
Thanks,
I have 2 child but both of them use my surname.kun sakali po b my mgiging karapatan ang mga bta s mga pag aari ng kanilang ama?I have a affidavit of acknowledged from the father of my child, na pingawa nya s cityhall (PAo) thanks …
Atty.FRED
hi,good morning.I have a legal problem about my niece.When my sister died around 2006 her childrens were only 2 yrs and 5 mons old.After her death my brother-in-law decided to go back in his parents house and took his eldest daughter and leave the youngest to us since he cannot take care of her.After he left…he left us everything ,the oblgation on raising my new born niece.He doesn’t even bother to give financial support…and now my niece is already 8 yrs old and he was threatening us that he will take back my niece…DO WE HAVE THE RIGHT TO FILE COMPLAINT AGAINST HIM?My niece surely doesn’t want to live with her Daddy,and so am I…hE IS working abroad and I don’t want my niece to live with his step mother not knowing how she will raise her.
Good day! Me and my husband got are both unemployed since I am just 19 and he is 21. I am currently living with my husband’s family, having them provide for our son’s needs. If it happens that me and my husband will separate, can I take the child with me? He
is currently 3 months old. Thank you!
I don’t understand where the answers are to all these queries. I have my own query, but I’m wondering what the point of submitting it is if no one replies to it. Do you send the replies privately?
Hi i need some advice im working here in abroad and i have a son who living in ky sisters place to take care my son while im here but i have a chance to stay here and i can get my son is that possible i can bring my son here even without his father consent? Thank you..
i am a foreigner , living in a Philippines for 6 years and had a relationship with a Philippine woman.We never married but the relationship brought 3 beautiful children, 6,5 and 3 years old. I work overseas and on my when return,she was living with another man and the children were with her mother. Drugs were her problem. I lived in her parents house with the children for nearly one year. Eventually the police apprehended her and her boyfriend on drugs charges. The DSWD and the PNP gave me custody of the children and i went to baguio, and stayed there for 4 months, filing for full custody.Unfortunately i needed to go back to work overseas and had to give her back the children, due to the laws here. I am paying 30,000 per month in support for the children. I love the children so much and want them to be with me. At the moment its not possible for me to visit them due to her BF going to jail for drugs and gun related crimes, his family looking at me as the cause!!!