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 Po Attorney,
I’m a single parent, separated, with a 5-year old daughter and OFW. Husband and I got married on 2009 and separated 2010 (just a month before I left for overseas). Discovered that he cheated on me for 6 months for a younger girl on April 2010. I left Philippines for work while my daughter stayed in my father’s place. Cheater husband went back home to his father’s house. My child was left there while relatives look after her while I am working for living. Since the day we separated he visited our child for several times only without giving any support or whatsoever. I am working overseas and would like to get my daughter so we can be together. Due strict law in the country where I am now, they would like to have a father’s consent for me to bring our child.
My daughter is willing to migrate with me but her father wouldn’t allow. He doesn’t visit our daughter, doesn’t call in our home phone to check how my daughter is, he doesn’t give any penny to support my child for basic needs and schooling. I did not receive any help, support of any kind in any way. But the twist here is that he is holding my daughter’s freedom to migrate with me.
I could infer that he abandoned and neglected my child while living as single man and flirting with other girls.
Please give advise on how to win my daughter’s freedom so I can take my daughter overseas.
I was separated to my husband snce dec and he force me to leave the house because of jelousy and thinking i have other man in my life, can I still get the custody of my child? How will be the process?
And another thing is having a flirty relationship n social sites like facebook can be considered immorality? and can this be factor to sue one in court?
Need help,tanong ko lang po pwede po ba kami makulong mag kapatid sa ginawa nmin,patay na po mother po nmin tapos ang kapatid ko po eh hindi na nakisama sa nakabuntis sa kanya kc po gusto ipa tanggal yung baby,ngayon po nag desisyon po ang asawa ko po na ituloy ang baby at sya na daw po ang susuporta sa baby,nung nanganak po ang sister ko eh nag desisyon po ang sster ko na ipangalan sa amin pero ang kapatid ko po eh sa amin po nakatirang mag asawa,tanong ko po kung pwede po kaya kami ipakulong ng naka buntis sa sister ko po at ano po ang pwede nming gawin..salamat po
If a mother is immigrating to another country with her child below 18 years of age, does the mother need the child’s father’s consent? The father abandoned the family when the child was still a baby. Thankyou for giving this your attention.
My x husband wanted to take my son to another country.do he have the right to take my son away after 5 yrs his not with us even if we are married before? He only support 5k a month to our son. And twice only he see him and come here to the phils since we got married 2009.now he want to take my son in abudhabi.
hi atty. good day. may i ask if the father of a illegitimate child above 7years old can file a case to get the custody of his child? What can be the possible reason that the court grant his petition of custody to his child?
Please I need answers! 1.we were never married 2.we lived together for almost 2yrs 3.my daughter carries my surname 4.no infidelity or any premature reason for the break up, we just decided we dont want tobe together anymore!
My ex has a large family and they have a below average income.only her parents work! My ex is unemployed! When we were together her parents usually borrow money from me.now that we’re seperated I fill my daughter is not fully getting the financial support.what should I do? I want to file for custody but not sure if I have a chance to win!!! Note:my baby is only 1yr 7months.my ex is not a drunk or mentally ill or abusive.she is just working(Tambay in tagalog)
Hi! I am a father of an 8 yr old child. The child had been with me ever since the mother left 5 yrs ago. We were never married. Its been over a year now since the the last contact of the mother. She never visited nor do we have her contact number. We also dont know where she lives now. I am planning to have full custody of my kid. I am seeking your advise on this matter.
i plan to travel abroad with my kids. i was annulled last dec 2014. the court granted to me the custody of my 2 kids but with visitational rights of their father. do i need to seek for travel clearance, requiring the knowledge and consent of my ex? thanks
I neead an advice. My wife and I got separated because of infidelity issues. We are married. We separated because she has an affair with someone. My son is only one year old. I do not want my son to be deprived from me, what should I do?
I am separated with the father of my child since 2010 now for that year he is supporting my child,but year 2011 till now he is not giving or offerring financial support, then just yesterday he talked to my aunt and told he misses my child and that he wants to borrow the child two days a week and he wants my answers as soon as possible, telling my aunt that he already talked to a lawyer and that he knows hes rights, people tells me his living-in with a doctor co-worker in a hospital he works in, i dont know my legal rights and how to fight him if ever he filed a case of visitation rights or custody coz i dont have money to pay for an attorneys advice or counsil, pls send me an email as regards to ur reply thank u! God Bless U!