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]
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Hi Atty.,
My sister and his husband is in a separation by their words. I’d like to ask what if the both parties didn’t give their financial support? What should I do. The custody is in me.
Many thanks.
This is for my Tito who wants to get the full custody of his 3 child. They are not married the background of the girl was not good. The mother left her 3child to my Tito after 4months the mother filing for custody.and she won but my Tito knows that it will be better if the 3 child was in his custody because the mother don’t have the work to fulfil all the needs of his children, and only work she knows was dancing in club dating guys for money,and terms of environment were the children grow was not that good due to the family background of the girl,the work of the siblings of the girl not suitable for the children because they worked at the club,the mother of the girl was a gambler,and the father has recent history of illegal drugs,and now the mother was having unafaire to a lesbian and the lesbian leaves at the girl house.and now were thinking that the only reason why she wants the custody is because of the financial support that she can get to my tito is that good place for a 3 child to grow as a better person someday.and now were thinking why the mother wants the full custody because of the funancial support that she can get to my tito.what will be our first move to get the full custody of his children.
Hello Atty.
Good day! I am married with 2 children in the USA for more than 4 years ago but separated now for almost 2 years. I left this year to work abroad, but before that me and my children was living at my old parent’s house. My mother basically taking care of my children while I’m looking for a way to feed my kids. The first year of my separation my husband moved back to Germany to work (he is German) but unfortunately he has no luck. He maintained his company here in the Philippines but for almost two years there was no business coming in. This year he got a break, and now back to his feet. This year, before I left to work abroad he promised to get a place for him.and the kids but my condition that my mother will be with them to look after my kids while I’m working abroad. And this happened May this year, but I’m already awa, working abroad. 2 months ago he told me that he want to moved to Germany with my children and also he will take my mom because he knows he can’t take care of our children on his own. I also live and working here in Europe now, for me it’s an advantage at least they will be closer. But a month ago he asked me to come back to the Philippines to do our daughter’s passport in german embassy. At the moment, I can’t file for leave just because he wants me to come back. The passport process will take weeks and I can’t do that. He said if I can’t go back to do it then he will file a full custody of our children and he asked me to sign it. Of course I said no, I told him that he has to wait for next year until I can have a vacation from work. He still proceed mto the process and days ago I got a draft xerox copy. My mother is worried that the court will grant him the full custody because I can’t do anything about it because I am not there. Is that possible? I didn’t abandoned or neglected my children, I have to work abroad because he is not supporting me in the Philippines and he doesn’t want me to have the kids and support us. He wants the kids for himself alone and for me he is using that so I’ll be back to him. I don’t know what step I should do, I hope you’ll be available to help me in these complicated matters of me. Thank you very much
i have a 5y/o son, hes mom is planning working abroad. she want to leave our son under her live in partner. is there any chance i could get the custody over my son? were not married but my hes bringing my surname. we split because of her finding another guy.
I had a child turning to 5 yrs old,and she is carrying the surname of her father..i left her to her father for the seek of her future i go work as ofw..im not married to her father until i found out he has another woman and have a child too..Can i get my daughter custudy on behalf of my father? Even without my presence there in philippines?
hi,
My younger sister with her 2 years old daughter force to live near her husband mother in law’s house, were the environment is so disturbing they live in a very small house with neighbor’s thin walls apart, my sister starts to feel uncomptable due to luck of privacy and security then as of now it causes her insanity, what she only wanted is to move to a different house far from the mother in law’s house but husband refused and every time my sister plans to go to my mom’s house to have peace of mind her husband wont let her bring the child they keep on saying na ” sila ang naghirap at gumastos sa bata magkakamatayan daw if kinuha yung bata” that causes more pain and insanity to my younger sister, i know that my sister has the rights according to article 213
but we are afraid that his husband might do something bad if we will take the child he just wants the child to stay on his mother’s house, please help what should we do? and according to family code law insanity may deprived the rights of the mother what is the cause of the insanity is the environment and her husband? well they are not married yet should i say live in partner, please help…
hello. can i have the custody of my 2 sons.. 7yrs old and 1yr old, but I have no work. but I’m applying for work abroad. my 2sons will be at my sisters care. my ex-husband left us with no reason. please reply ‘coz I need legal advice. tnx
Hi Attorney,
I recently received word that i am a father to my newborn daughter out of wedlock. I fully acknowledge the child as my own and is willing to provide support for her. Though the other party does not want to have the baby use my surname, i respect that. My question is that what are my rights to the baby? Thank you and god bless.
Hi,
My brother and her wife decided to end their marriage relationship. The reason is that the girl had an affair with her same preference. They had a 3 year old child. Just wanted to know if who will be responsible for the custody of the child? We want the child to be on my brother’s custody.
Thanks,
Hi attorney I worked in abroad for almost 7 years I have daughter in Philippines 11 years old already and she stayed with his father.I don’t get married with his father but i’ll send them a money every month to support them his father is not working and I decided to separate with his father 2 years ago because i’m so tired for everything now i stop to support them for almost 8 months already now i have my husband right now my point is i don’t get married with the father of my daughter now his father doesnt allow me to talk to my daughter even my parents he doesnt want to talk to my daughter. My question is do i have rights to my daughter even his father don’t want me to talk and to communicate to my daughter?please advise.. thanks