Basic Issues in Child Custody in the Philippines

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.

Basic Issues on Child Custody in the Philippines

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]

Atty.Fred

549 thoughts on “Basic Issues in Child Custody in the Philippines

  1. Cristina

    I am Cristina Guarin married with four kids, my youngest child is 3 years old but living apart with them because my husband accusing me that I have another man. He and his mother decided to bring me back in my mother’s house. So all my children now are under my husband’s custody. I want ko know if I can get my youngest child and to be under my custody. What must I do? They not even let me to see my children even an hour or minutes. Please help me.

    Reply
  2. Jesstine ann

    I have a question. So my brother pregnated a woman. They lived together for about 2 years but the the thing is that the woman forced my brother to have sex with her knowing he was really drunk. He doesnt love her, and he couldnt love her for the fact that the woman has no good manners and also her family. Their relationship was very rocky. My brother met a new woman and he loved her so much that he married her and they had a child. My brother’s son is living with her mother. So the thing is that my brother is a seafarer and he asked our mom to take good care of his son. My brother provides all the needs of his son, enrolled unto a good school, provide his basic needs. Giving him all the love and care. My nephews mom doesnt want his child to see us or even talked to us. They only let my nephew visit us when they dont have nothing to feed my nephew or when there are expenses at school needed to be paid or when his sick. We would always call the boy to come to our house but whenever his with his aunt the boy never answers or even looked at us. They would scold my nephew whenever they sees him talking to us. Before the mom has no job. All the expenses of my nephews are paid by my brother. Now the mom has a job as a domestic helper and left my nephew to her sister. Sometimes my nephew cries because her aunt wouldnt let him be with us. Teaching my nephew not to talk to us. They usually tell others negative things about us saying that we dont love the child, we dont provide him anything. What they want is to give them money for the child. My brother doesnt want to give them money because he knows that the money wouldnt be given to his child but to the womans family. Knowing they will use it for there own wants. The child just turned 7. We want the child to be in my brothers custody. Do we have a chance?

    Reply
  3. mischie

    Arresto Menor

    Posts: 1
    Join date: 23/11/2015

    May bf po ako at may anak siya out of wedlock at 8 years old na ngyon.. Tuwing hinihiram nya ang anak nya ay pinagdadamot ng ex gf nya sa kanya. Every month nagpapadala siya ng pera sa anak nya though hindi fix and date at amount like ranging for 1500 to 3000 pesos monthly at naghahati po sila sa tuition fee ng anak nya. 
    Ang family po ng bf ko at ang family ng ex gf nya ay hindi in good terms. 
    Ang ex po nya ngyon ay may kinakasama na rin iba at sinabi po ng nanay ng ex gf nya na ililipat daw po ang apelyedo ng bata sa apelyedo ng lalaki which is a married man to other girl. Yun po ang lagi nila panakot sa bf ko. Plus nag message sila noon na kaya na daw nila tustusan ang bata , but still kahit papano ay nagpapadala parin po ang bf. Ngyon po, kami pa po ang timakot na kung hindi sinusustentuhan ang bata ay we face legal actions. At may pagbabanta pa. My proofs po kami na monthly nagpapadala ng pera habang nasa ibang bansa ang bf ko dahil nasa amin ang passbook ng bata. Ano po kaya ang pwede namin gawin since tahimik naman kami at ngyon nandito na ang bf ko sa Pinas ang balak nya na lang instead monetary ay ipag grocery na lang bata para sa buong buwan dahil mas nakakasigurado kami na sa bata napupunta ang pera at hindi kung saan man. Sana po matulungan nyo po kami

    Reply
  4. Onofre

    Me and wife have been separated (not legally) for 5 years now and now they refuse to accept my child support but barred me from seeing or talking to my kids. Any legal advise?
    I live here in Shanghai, China and only go home in the Philippines once or twice a year.

    Reply
  5. Mai33

    I just wanted to ask regarding my situation. I was married before way back 10 years ago. But we never had contact after 3 weeks of our marriage. And recently I have given birth to a child from the other guy which I am planning to marry. And my annulment from my previous husband was still on process. My question, is it possible that my baby can travel to other country without affecting the result of my annulment?

    Reply
  6. nelson

    I would like to know if my leave in partner found that see mark up a price for her personal profit with out knowing the company, it migth be considee as immoralty and ground to remove the custody?

    Reply
  7. Jordan

    Dear Attorney
    Good day!
    My son miggy is now 11-years-old, his mother and I separated while she’s still pregnant for him. However, given the circumstances during the time I am unable to supply support for her financially as she was pregnant to my son regarding her check ups and so on… Though my parents provide all this. I have been supporting my son ever since even his mom and I part ways. I’ve moved here in Australia 6 years ago me and my wife were looking forward to bring him here in Australia to join us live here together with his stepbrother, my son Jori who is 9y/o. Them both get along ever since we were still leaving with Philippines. It was last December 2014 when them both got reunited. Regarding the situation do i still need to take this to the court for me to gain my sole legal right to him? His mom is very willing to let her son joint us here is Aust. By the way his mother has now have 6 kids with her husband. My son is also looking forward to come join us here as he was excited to finally lived with us and his brother. Hope to hear from you when you have time.
    Regards,
    Jordan

    Reply
  8. raquel

    Pls advice. My son is 24 yes old and have a son who us turning 3 yrs.old on Feb. My son is not married to the mother of his child. However he supported the child since birth even the hospitalization of the mother because the child was delivered via c.s., to the best he can and to the extent of us lending him financially. However my son is being deprived of his right as the father whenever he planned to borrow the child to spend time together. First of all the child is being taken cared of not by the mother but by the grandmother because the mother is leaving with the relative in other place while seeking job and very seldom she visits the child. Now we have learned that the mother of the child is pregnant with other man and told a story that the reason why she got pregnant is because a man whom he ask to help her support the child wanted it. The fact that my son supports the child and she said she already is working why do so. For me she exploited the child to ask money from the guy and its immoral to say that’s the reason why she got pregnant. Do you think we have a case . The child is sikly and we learned it from neighbors. Thanks. Well appreciate your advice.

    Reply
  9. jassen

    Please help me of my problem regarding my 2 son, 4 and 7 years old. I am here in Saudi Arabia and i left my 2 son to his father for the reason that my husband had no work since my eldest son is born. And now my husband and i is not in good term because he did not understand my side of being OFW here Saudi (riyadh). Even when im still in the Philippines I am the one who is working to support the needs of my child.
    Now, I’m planing to go for vacation this coming May 2016 and i want to take my 2 son to him, and i let my father to take care of my sons with my financial support. How can i take my sons legally?

    Reply
  10. niwel

    My brother has a 13year old son,but was left by his partner to me and my parents 8 years now. My brother has another family and his ex-partner is overseas. My nephew seldom communicates with her on social media or when she comes back in the Philippines. I acted as his parent by providing him education, clothes, food, almost everything. I sometimes had an argument with her family whenever they want to spend time with my nephew but wasn’t bringing him back on the date that we talked to that causes him not to be present in school. If they plan to get the child, do I have the right to say no? What are my rights? What should I do? I really need your advice. Thank you.

    Reply

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