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. Khaye

    Hi Attorney please help us, yung asawa kasi ng brother ko nanlalalaki habang nasa abroad ang brother ko then pag uwi niya nahuli sa chat po..ngayon yung dalawang bata nasa custody po namin ng brother ko, kinukuha siya nung asawa ng kuya ko..kukuha daw siya ng private attorney, naka pau naman po kami kaso baka sakali po may mai advice po kayo. Ano pong grounds ang pwede namin gamitin para mapunta sa custody ng kuya ko yung mga bata? By the way 10 and 3 y/o po yung age.

    Reply
  2. Ricky C.

    I have a question, i am separated from my live in partner for 3 years now and we have two children the eldest is 7 and the younger one is 6, and now i am legally married to my new wife. My ex live in partner is asking for a child support will this affect my legal wife if i will not give child support for my children because the money is not use by my child instead she used it for personal agenda

    Reply
  3. merjulyn

    HI ATTY,

    My boyfriend wants a full custody of our child and wants me to sign an agreement.Is there any ways I could fight back to get that custody and at the same time have a financial support from him? as I am not capable of raising the child alone without any financial aid.badly need help pls advise

    Reply
  4. Jeffrey V.

    Please advice what to do, Kakapasal ko lang po last year with my 4 years girlfriend at may anak sya sa last boyfriend nya, 8 years old na ang bata. Tanong ko po is ano po ang legal action na pwede gawin para mailipat ko sa pangalan ko yung bata, ang gamit pong last name ng bata is yung last name ng mommy nya before kami magpakasal, pwede po kaya maging anak ko sya since wala pong nilagay na ama sa birth certificate ng bata, para hindi lalabas na adopted ko yung bata. By the way yung biological dad nung bata is may sarili na pamilya. Thank you

    Reply
  5. Ivy

    Hi Atty.,

    I have a UAE national friend and asking for your assistance to help him get his son to his wife in the Philippines. They have been separated for 3 years now and the wife is currently working in Lebanon while his son is being taken care of the wife’s mother. is there a way that he can get his son and bring him here in UAE.

    can we call you and ask for all the requirements needed, because his planning to go there to process this case and he can start preparing on the requirements the court might be needing while he is still here.

    Thanks,

    Ivy

    Reply
  6. bong

    Good day po Attorney, i would like to ask for any legal advice, I am married and have 2 daughter, but as of now its been 2 years since me and my wife separate but not legally, she is now working abroad and I am here in Philippines working also, my problem is our two daughter is with the parents of my wife, I would like my kids to be with my parents since every week end i went home to my parents house, but my wife doesn’t want that set up, she insist that the kids since below 7 years old should be with the mothers custody and in behalf of her, were her parents, and specially now that me and her parents have a conflict actually I have a threat from her father so there will be a problem with i will go to their place to visit my daughters. Please give me legal advice on what to do with this situation. one more thing a stopped sending money to the parents of my wife for my kids since last year because of the conflict.

    Reply
  7. ezekhiel

    Magandang araw po sayo atty.

    May anak po akong 5years old na babae.. OFW po ako hndi po kami kasal sa nanay nang bata.. gusto ko pong kunin anak ko sa kanya para kahit papaano gumanda buhay nang anak ko.. pinapadalhan ko sa una ung mag ina ko, tpos hanggang sa dumating ang araw na nagkalabuan kami.. may ibang lalaki sabuhay niya tanggap ko naman un.. sa akin lang gusto ko tustusan ang anak ko kaso ung nanay niya ayaw niya maki-alam ako sa anak ko tpos kalimutan ko na raw anak ko.. gusto niya ayaw tumanggap nang gasto galing sa akin ang anak ko.. ano po pwde gawing ko?

    wala pong birth certificate anak ko.. asahan ko po reply niyo

    thank you and more power!!

    Reply
  8. dale

    Good Afternoon po Atty.

    yung kuya ko namatay na po siya,,,tapos yung pamangkin ku po ay nasa custody ng kanyang lola(mother side)…yung nanay po ng pamangkin ko ay nasa abroad,,,kaso po yung lola niya is ayaw na po niyang papuntahan or ipasama sa amin yung pamangkin namin…tanong kulang po kung may habol po kami sa pamangkin ko kahit namatay na po yung kuya ko?

    Reply
  9. Gemma

    Hi po atty nabuntis po ang kapatid ko nung nasa college sya at of course nung sinabi ng kapatid ko sa lalake. Deny naman si lalake na hindi kanya yung bata. And so after she give birth the family of the guy claim the baby that it’s their sons child. Nasa kalinga ng kapatid ko ang bata at the since the hindi pa ito dinalaw ng lalakeng nakabuntis sa kapatid ko sa bahay kung saan nakatira ang mag ina maliban sa mga magulang ng lalake. Hindi pinagkait ng kapatid ko na dalhin ng mga magulang ng lalake na nakabuntis sa kapatid and bata para mamasyal sa kanilang probisya at binabalik din naman nila itong bata sa ina. Walang kontak ang kapatid ko at ang lalakeng nakabuntis sa kanya. May mga buwan at araw na iniiwan ng kapatid ko ang bata sa nanay ko para makapag trabaho sa ibang probisya at matustusan ang pangmgailangan ng bata. Tumutulong din ang mga magulang ng nakabuntis sa kapatid ko. Pero nitong makaraang buwan at araw simula nung buntis ang kapatid ko sa fiancée nya panay na ang harass ng mga magulang ng lalakeng nakabuntis sa akin na kukunin nila ang bata kasi wala daw syang trabaho at di kayang tustusna ang pangangailangan ng bata. Ang fiancée po nya ang may trabaho at sya po ang katiwala ko sa bahay ko sa pinas at nagpapadala po ako buwan buwan ng pera sa kanya. Pinipilit din po nila ang kapatid ko na palitan ang apilyedo at ibigay sa kanila ang bata. At pinagkamamalaki din po nila ang mga bigay at tulong nila sa bata. At nagtatangkang idedemanda daw nila ang kapatid ko. Ano po ba ang pwedeng gawin? What visitation rights? Can she file for visitation set up? And can she file for child support even though they are not married? At yung lalakeng nakabunstis sya kanya I think is Philippine army. Is he breaking any law by denying the child? Thank you so much.

    Reply
  10. concern101

    I have a friend, her and her husband verbally separated last November 17, 2016. They have a verbal agreement that they will have a schedule in custody of their son (weekdays for hers and weekends for him). They are living separately since November. Yesterday, February 7, 2017, her husband secretly took her son away without any permission from her. Blocked her on Facebook, phone cannot be reached. All of her family members was blocked on his Facebook account. Luckily, she was able to logged in to his Facebook account and find out they went to VIGAN. His niece accommodated them there. Is there a chance that she can have her son’s custody because of what he did? Is it considered as kidnapping in her husband’s side?

    Reply

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