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..tanong ko lng po..hindi po kami kasal ng ina ng mga anak ko at nasa hongkong sya almost 4 years na pero bigla syang nawala at balita sumama sa ibang lalaki pmunta ng macau at nalaman ko po yon side ng pamilya nya..almost 4 months na syang hindi tumatawag at nagpapadala samin at marami nako ebedinsya na may kinakasama na nga sya..pwede ko po ba syang kasuhan at pwede rin ba syang mawalan ng right para sa mga bata..
may dalawa po kaming anak 4 years old saka 10 years old..
Goodmorning ask ko how i can take custody of my son, im separated . the mother is now in prison i am the legal father . what steps can i do to legally have custody of my son .
Good day Atty .
I would like to ask for advise regarding child custodianship. I am married for three years , have a 2 year old son and I am the one working for our family. During those 3 years, I am trying to extend my patience with regards to the attitude of my wife. But, patience has its own limits. I am planning to end our relationship since it is no longer healthy especially to my son. If that happens, I would strongly fight for the custodianship of my son since I could not bear if he grows up without proper guidance and with the same attitude as hers (considering that she’s been raised by her parents as a spoiled brat). It has been a routine for us that after every argument, she tends to be responsible but after a couple of days, her true identity shows up. Aside from being irresponsible, being too demanding is another topic for us. I admit that I have this “kuripot” attitude, but it just for our own good since I am saving it for our future. Everytime she asks for something (which is really unnecessary, considering also my salary I have) and I cant provide, for sure argue begins.
Atty, would unemployment and her attitude problems (irresponsible) be enough to have my right of child custodianship?..
Thank you and hoping for response.
Best regards,
Jonathan
gusto kopo kasing papalitan ng apilyido ang aking anak
dahil hindi nman kmi ksal ng dady niya at hiwalay nrin po kmi ng dady niya 3yrs ago na
gusto kopo kasi n skin n i apilyido ang aking anak
Hello po. tanong lang po. May anak po ako, 6 years old na kasalukuyan nakatira kasama ang relatives ng tatay niya. Nasa Denmark po kasi ako ngayon and ung anak ko po plano ko kunin papunta dito. Requirement po ang document of sole custody. Paano po kumuha ng document about dun ngayong nandito po ako sa ibang bansa?
Sana po matulungan niyo ako.
Dear Lawyers,
Hello. I have a situation. In 2009 I started borrowing my relatives daughter because she was so cute and adorable, since were related the father didn’t seem to be bothered if the child stays with us, I left her with my parents because I have to go to the US to be with my husband and since I have not adopted her yet,I cannot bring her. Now the child is 7 years old turning 8, still the father is a happy go lucky guy. Known as a womanizer and have various kids to different mothers, he got married but womanizing is still there,he never got to support her, when kids was still in formula I used to call him when I don’t have money to buy milk for her coz technically its his daughter,yes he did bring sometimes but not all the time and I found out that He will quarrel with his sister to buy the milk for him when I knew that I never bothered him of the milk or even the vitamins or the doctors check up, its all in my mom and me but sometimes the aunt gives too because she felt shy about the situation, I just want him to be responsible and all but never mind. Like I have said the child is turning 8 and I am the one sending her to school,from tuition, uniform,clothes,allowance,everything and I’m doing it because I love the kid so much. The mother was no where to be found the only time the kid saw her mom when the kid was less than a year old maybe 10 months that’s it and the mom have children from different fathers too. Now the child is with her aunt because my parents were too old to took care of her, but i still do all the financial support. What concerns me is the welfare of the child, the environment she is in is not good and she developed and turned to be emotionally disturbed and I sent her to a Psychologist with her cousin who is a nurse. The Psychologist say that she has to be in a complete family or she will became worst. The aunt she is living now have 2 kids of different fathers too, and I feel bad because the father will not give her to me, His alibi was the mom will not allow, but how come the mother is no where to be found and my concern is the welfare of the child. Her father lives with her aunt but every time I called her on week end I asked her if his dad is talking to her all she said that his father never talk to her or hi is not there or with his girl friend, when the aunt was pissed off of her ( well, kids are kids, they are messy and all) she sent her to their relatives and let stay there for a couple of days but what I don’t like in their other relatives place is that it is “Den of drug addicts,drug pushers and thugs) it is not a got environment either, they don’t bring her to my parents because they were old already. I cried each night in my prayers that God will allow me to get her and to provide her a loving and safe family. What can I do? please help me?
Thank you and God bless
I have a 5 years old child with my first live in partner,we separate because he always beats me..Now I have already husband and we are married..My problem is I left my child with my husband because I have to work ..Can my 1st live in partner get my child even without me there??
I hope you can give me a piece of advice..Thank you in advance.
hello attorney, i have an issue right now the child ‘s age is 1 year old and is in the custody of the mother. the parents of the child have separated (my brother is the father) the child was with us from birth until 6 months she was very healthy back then, she’s fat (her cheek would even turn red) , in fact she had never incurred any illnesses even for a minor fever. Due to misunderstanding between my brother (father) and the mother she decided to go back to their home province with the child. six months later they came back to us because she could not support the child anymore as she got no job that time. So we got her back with the child and i took pity of my little niece because she was so thin, alot of skin rashes at her back and the neck part was reddish and developed into small wounds (i guess it was because they failed to wipe out the milk that came out from her mouth traveling down to the neck part and perhaps sweat. the worst thing was we have brought the child in several occasions to get checked by the doctor because of fever and upon diagnostic result the kid was diagnosed with tuberculosis (minor) we got her treated immediately, we changed her milk supplement according to pedia’s prescription and slowly day by day the child was regaining her strength and health. now since the child is healthy again she took her back to the province where i feared the child might be exposed again to illnesses and will not be well taken cared of.. the mother of the child is working in the city and she leaves the to her mum’s custody which they dont really have enoughresources to support the child, its in a slum area which the child can be exposed to sickness, they couldnt provide the needs the child and the mother can only visit there once a week as she stays in the city due to distance. what can we do about this? i am concern ofthe well being and welfare of the child what if somethin worse will happen again. please help me attprney
Hi i have a 10 year old daughter living with my mum in Manila
I am presently living with my 2nd husband in Australia and trying to get my daughter to come and live with us but her father is refusing to sign the necessary papers. The father has never been concerned about his daughter nor has given financial assistance there forcing me to move abroad to earn money to support our daughter. I am annuled from my childs father.
Since meeting my 2nd husband Phil and even before we were married Phil has been kind and given my daughter and me the financial assistance to enhance her education
What can i do to gain full custody and so enable my daughter to move to Australia