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, i am a mother of two. my kids are with their father and was took away from me. i am planning to file for full custody. id like to ask to where and what are the steps. and i would also like to ask where can i get a lawyer preferably not those expensive lawyers. any contact numbers and offices. metro manila base.
thank you!
Hi! I have a relative. he is the father of the child. they got separated with his live in partner. these past few months, he stopped giving financial support because he was too mad that he couldn’t even have his child or even can have time to bond with her. The mother of the child wont let him have time with the child outside of their house. there were times that he wanted to borrow the child to bring her to his sick father but he was too frustrated because the mother wont allow her. My relative just want to know if he has right to demand or request visitation even just once a week to have time with his child?
Your answers are highly appreciated.
How about if the situation is that I am the father and the mother of my child is Married to someone else previously. How does that go?
i get separated from my live in partner because im been cheated and bothered by him.i decided to leave him,i am n0w renting a r0om with my child.the set up is,im bringing my child to him during the day and taking my child again in the night,n0w the situati0n is this,he has a girlfriend that always at his house and i still c0ntinue the set up,can i file a sole cust0dy of my child who is only 4yrs old and we are n0t married.
Hi. i and my ex lived together for over 10 years but never been married. We have 2 kids aged 8 and 5. He is not working since we lived together. We ended our relationship last january 2016. I am now with a foreigner partner and planning to migrate in his country but the dad is planning to take the kids from me. What are the things that i can do to prevent it and what are requirements ill be needing to bring my kids abroad. Thanks. Have a great day!
my father have a 13 year old daughter from another woman. He wants to have a full custody of her so he can bring her to US. What he should do.? The mother says its ok for him to take her daughter to US. We just want some legal advise for what is the best thing to do. thank you very much.
hi,
i need your help,
my brother had a gf and they have a 2 year old daughter, and he did work hard and provide for the family, though the gf cheated on him thats why they got separated. they both had a written agreement that he have rights to see the child during weekends but the mother and her family never comply for 9 mos now, the baby is turning 2 years old on november and he havent seen her for 11 mos now, and he is devastated for many months and i cant stand to see him like that, i know that he have rights , though its not as strong as the mothers, so please is there anyway that we can have the kid with us, somehow the family of the girl lives in slum, and unsafe place ,so i was hoping if ever can we use it as to our advantage to see the child? pls advise ..thanks,
Hi atty,
How long does a custody case normally last and how much would be the cost?I got my Newzealand resident last yr. and i included my 2 sons and they live with me in NZ.coz they got my maiden name. But my 2 girls ages 11&13 yrs old still in the phil and my friend is the one who look after them.i was married to their father and he is not capable of taking care of them. He is jobless ,involve with drugs & have relationships with diff women.He signed an affidavit thet he is giving me the full custody of my 2 daughters.I really want them here asap, and they are not safe anymore. And just want to make sure na hindi kami lolokohin at manghingi lang ng atty. fee.
I would like to file for sole custody of my 3children. My pulandering husband has a mistress of almost 2 yrs and he got her pregnant now. He is ready to stand as father to the child. I decided to leave him and separate from him. We are in Iloilo and he is in Manila. He has symptoms of Narcisictic personlity disordr and a self xonfesed multiple prsonlitu disorser.he declined seeing a doctor. He and his mistress are still together in the office and flaunting their relationship so his ofismates complained to HR to have both of them sanctioned. My husband is a sup and under him is this other woman who is an agent. I am planning to sue them as well VAWC psychological violence.I don’t know if Concubinage is appropriate since they are not living together yet but I hope the court can order a dna test if he keeps denying he is the father of the baby. How do i go abt the case?
hi good morning i have a question i had a friend and she’s married to korean and they had a son now they got divorced all the authority and the custody of the child is on the father but the mother bring her son to the phlippines without the consent of the father. And also the passport of the chils is already expired what if the father wants to bring his son back here in korea what are the ways that he has to do and can he file kidnapping against the mother? by the way the child is already 6~7 years old. thank you hope you can help us God bless