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.
i hve this live in partner we stayed for 6years and we have 2kids below y/o.
i forced him to get out of my parents house because 1) have no time for kids 2) he has girlfriend
now he is staying with the girl for 3months. and the girl is the one to sustain all his needs. food, finding a job, etc. and now they tell me that they want the custody for my child. so what will i do? i have now a work. im also worried that they might took my child from school with my concent. what should i do? Can I winn this battle? thanks!
Good day! My friend just gave birth 2 months ago. They are not married with the child’s father who doesn’t provide any financial support to them. My friend is now living with her family. The father just saw the baby at times that he visited my friend. During my friend’s pregnancy, the father wanted my friend to abort the baby. At the moment, they are not in good terms with the father because she found out that he’s cheating on her. My friend doesn’t want to show again the baby to his father. What will happen if the father demands to see their baby? Can the father file a case against my friend? Please reply. Thank you in advance & God bless!
I would like to have a legal advice. I have a live in partner and a 3 yrs old daughter. My live in partner left our house or abondon us ( me and my daughter) .after a month we had an agreement notarized that I’ll be taking care my child and she had a right to visit. But after 2 months hiniram ng Lola at ayaw ng ibalik ang bata. At pinagpipilitan niyang under 7 daw ang anak nmin kaya ang sa knya daw ang bata. Ano po ang magagawa ko?
Hi Atty,
Good day..
My friends wife applied for nullity of their marriage. An invitation letter from psychological doctor and summon was delivered to his residence. Neither of the two invitation was attended by him due to the fact that he was already working abroad to support his family. My friend left on april and the letter was received oct and nov. of the same year.
My question is..is the wife’s application for nullity of marriage valid even though she’s the only one active on it?
Thanks & Regards,
David
I have a daughter who gave birth to a boy who will be 6 yrs old this jan 2016. Since she was not married when she gave birth she gave her child her surname. The birth cert dont show fathers name or left blank. As grand father of the child I wish to nsme him as my beneficiary for my sss. Do I need an affidavit to support this. The mother is now an ofw. Pls I need your advice. Thank you
Hi ask ko po may two daughters ako from previous relationship but me and their father wasn’t married we been separated for almost five years and his trying to hide kids from me kids are 10and9 but secretly I’m seeing the kids when I’m in the country
now I’m married to my half Australian half sri Lankan husband and planning to stay for good here in sri Lanka
each time I meet my kids I always tell them that I will not force them to leave their father and stay with me I will wait for the right time and let them decide on their own.
They are also aware that their father doesn’t want them to see me but I make sure to make ways always to meet them and their happy to be with me always there very close and sweet to me
their father treat them good and support them also.
My question is one day if my daughter decide to come with me here abroad do I need a signed letter from their father?
They’re using their father’s family name but the father signed at the back of their birth certificate..
please clear me with what is right.. Thanks alot
Dear Sir/Ma’am,
I nephew is turning 2 years old this November. The father of this 2 year old boy is my brother. The child is illegitimate. The child is with us for 2 years already. My brother is the one taking care of his child with the support of our mom. Lately, the mother has decided to take the child to bring to Davao. Mother says he will come to our house anytime and take the child. Can we file a case or agreement first before she can take the child? The mother is just renting a room and living alone and taking the medication of insulin. Says she will take the child and ask her mother who has a diabetes to take care of the child. According to your statement above parental authority is inalienable or not transferrable. Though we know that a child below 7 years old should be under the mother’s authority. Please advise. Thank you.
Adoption issue. My wife and I filed an adoption case back in 2011 and to this day DSWD has refused to submit the case study report. From what I understand DSWD claims that they have not completed the report because we had moved SILANG TO DASMA and now they need to re due the entire process again which would now be the third time. Question 1. does the change of address give DSWD the right tl with hold the case study report….? keep in mind thecourt ordered last year the release of such report and dswd has also testified to the case study report its finding and recogmendations is that we are qualified and it is in the best interest of the child who has been in our custody since birth. After everything, DSWD is still demanding we re submit all thedocuments, go through police NBI medical home study anc everythkng else again. Question 2… does the testimlny of DSWD on the basis of the case study report, its findings and recomendations meet the requirements of lawor does an actual written report need to be submitted. Thanks in advance for any help or opinion you may have on these issues
Hi… I have two kids a 9 year old girl and a 5 year old boy. They are being invited by my sister-in-law (my husband’s sister) to go and live with them in Japan for 6 months. They asked to become their LEGAL GUARDIANS so that all the privileges their children has can be extended to our kids. We are financially supported by by husbands family because my husband has been in and out of the hospital since 2011. Can you tell me if this is possible? We as parents want the best for our kids and we think that this is a great opportunity for them .
I have to ask the same question.
“How long does a custody case normally last and how much would be the projected cost of one?”
pls email me . thank you