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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Atty, Good day to you, gusto ko po sanang mgtanong, ito po ay tungkol sa kaibigan ko lalaki, pwede po ba siyang magkaroon ng krapatan sa kanyang anak na nasa kasalukoyang nsa asawa niya ngayon. Ang kaibigan ko po ay maykinakasama na at may anak narin sila, ang asawa niya ay may kinakasama narin at may anak na rin sa iba. Gusto po sana niya hiramin ang kanilang anak sa kanyang asawa kaso ayaw ng asawa niya, khit anong paki usap niya hindi siya pinapahiram, infact sumosuporta nmn sya sa mga needs ng kanilang anak.. Ang tanong ko po, ano po ba ang pwede niyang gawin na legal na pamamaraan upang magkaroon sya ng karapatang makasama din ang kanyang anak.
Hi, the mother of my two kids is married before we had kids (Already have had history of adultery). After we got separated she had another child with another man and left her. She had history of drugs years ago (I don’t have any proof on that and I’m not sure if she’s still using and I just caught her once). But according to the people I know she’s selling her body for money (Not proof, just witnesses). She work far from their house and only goes home once a week. What are the chances of getting the custody of my kids just basing on the mother’s history that she is not fit raising my two kids?
Hi atty.,
I need a legal advice for the custody of my 2 children. I am currently here in Abu Dhabi working as a nurse, my husband is also a nurse in the Philippines my 2 children is with him in his mother’s house. I support everything for my children, education, milk, diaper and even pay for the nanny. My husband has vices, he usually used the money for my kids for his vices. I want to get my children and sent them to my mother because I am here working abroad. Is there a chance that i will be given the full custody of my children despite my absence ( I am working here to provide for their needs which their father supposed to be the to support everything for them ). I will be in the Philippines for my annual leave I want to know if theres a chance that my kids will be in my mother’s custody while i am still working abrod?
Atty i need legal advice pls help me. You have my email pls respond as soon as possible. I’ll tell you everything once you send me an email that you are willing to help me.
gud day.. meron po akong ank na 1 yir and 7 month. d po kmi kasal ng ama nia. ang hiwalay na po kmi for almost 7 month dhil po sa ibng babae. ang problema ko po ang bnbgay nia na sustento ay 1k lng kada sahod. samantalang minimum xa at binata nmn. ngaun tinatakot nia ako na kukunin ung anak ko dhil nkaapelyido nmn dw ung bta sa knya. ano po kya dpt kong gwin. help me nmn. thanx
Hello Everyone,
My daugther is now 7 years old and she is leaving with his father and i want to travel with her but the father is not allowing me to so.
please advice on what i can do regarding this matter.
Thank you & best Regards
Maria
Dear Atty,
Me and my wife are separated for more than 7 years now. We have 2 children (14 y/o (girl) & 10 y/o (boy). We both have families of our own now. She has 2 children of her own with her new partner. I have 2 kids with my new partner as well. We both agreed that our kids would stay in our place under my sister’s custody as she had no permanent job that time, taking into account also the new 2 children she has with her new partner. Therefore looking after our 2 children was impossible for her to do. And besides, she only asked either the children’s grandmother or her eldest sister to look after the children, instead of herself. And of course I don’t want my 14 y/o daughter to stay with my wife’s new partner apparently for security reasons. Now that she is working in Hongkong as domestic helper (just started working for less a year now) she suddenly changed her mind to send back the kids to her place. I want to keep custody of my children. I understand that the children can have their preference as to whom they want to live with given their ages now. Please help me establish certain legal rules so that she wont be able to simply take the children away as and when she wants to so as not to affect their studies. I am extremely worried for my children to stay under her custody especially that my daughter is already a teenager and is apparently should be given certain restrictions and security.
Looking forward to your response.
Thank you and God bless.
Jun
Dear Atty,
In addition to my earlier email, my ex-wife is telling me that she is coming home next month and will take the children from my place. How can I stop her from doing so because I am here in Singapore right now and only my eldest sister is taking care of the children.
Can you please help me.
Thank you.
Jun
good day po!
atty.
11yrs.akong kasal s asawa ko.may apat kming anak.ngkawilay na kami almost 5yrs.na po.iniwan ko mga anak ko sa kapatid nya dahil ng abroad din ako.seaman po asawa ko at ngayun ay isa na siyang captain license samantalang ako ay domestic helper in riyadh saudi arabia.s pgkakaalam ko po,ngsupport nman po asawa ko 2k monthly sa bawat isa s kanila…may ka live in na po asawa ko at may isang anak mula ngkahiwalay kami at samantalang ako may kalive in na rin ngunit wlang anak…nais ko pong maibigay ng asawa ko ang tamang financial support nia para s apat kong anak…ano po ba ang dpar kong gawin at ilang porsento ba dpat ang para s knila bilang legitimate child…
maraming salamat po….
malou dalit
What can I do to permanently get the custody of my daughter? Her mother has 3 other children to 3 different fathers. She is in Saudi for work with new boyfriend. Her children are in the custody of her mother (the lola). While the 4th child (who’s my daughter) is in the custody of my mother because Im currently in Malaysia. I am the one who’s supporting our daughter.