Basic issues in child custody

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. Here are some basic matters relating to custody.

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 to 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.

The rule is that children older than 7 years old are allowed to state his preference. Is the court bound by such preference?

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.

530 thoughts on “Basic issues in child custody

  1. Lorejea dacuya

    Hello po attorney mai gusto lang po akong itanonh or hingi ako Ng advice.ano po ba ang dapat kung gawin upang mabawi ang aking anak sa tatay na nasa kanya ang full cutstoy o sole custody ng aking anak ,dahilan na wala akong trabaho kaya iginawad ng courty ang full custody ng anak ko sa tatay, at ngaun po ay pinapahirapan nya po ako at ipinagdadamot nya anak ko sa akin at ginagamit nya ang anak ko para makuha lahat ng gusto nya dahil alm nya po ang anak ko ang kahinaan ko as a mother,!

    Reply
  2. Joyce

    Hi po good day gusto ko lang po sana mag ask ng advice kasi po hiwalay po ako sa ex husband ko and regarding sa custody ng mga anak ko we signed an agreement sa barangay but now gusto ko ng mabawi ang mga anak ko dahil nagkakasakit sila madalas and gusto ko ako ang mag alaga sa kanila. May chance po ba na mabawi ko ang anak ko kahit po may iba na akong kinakasama ngayon? Thanks po

    Reply
  3. famela

    Hi atty. Paano po kumuha ng full custody?
    Hindi po nakalagay ang tatay ng anak ko sa birth certificate nya. Ngayon po kasal na ko sa isang danish at iaaply ko na po sya ng visa dito sa bansa ng asawa ko para magkasama na kmi. Kaso kailangan ko pong iprove na ako lang may full custody sa kanya. Paano po kayo at saan ako makakakuha nun? Nandito pa rin ako sa bansa nya. Maaari po bang isa sa magulang ko ang kumuha nito? Maraming salamat po.

    -Famela

    Reply
  4. SHAINE

    Dear Atty,
    Magandang hapon po, ako po si shaine ofw sa UAE. Meron po akong anak sa pinas 11yrs old na po, nasa pangangalaga po ng lola nia sa father side. Hindi po kami kasal ng tatay ng anak ko at may kanya kanya na rin po kaming pamilya. They are the one who took care of my child since he was 1 yrs old and 2 months ( due to circumtances )until now but im giving financial support since then, Now po gusto ko na po kunin ung anak ko but im pretty sure hindi ako ang pipiliin nia dahil hindi naman ako ung nakagisnan nia. And a typical child reaction. May laban po ba ako atty. kung iakyat ko ang kaso sa korte? I never abondoned my child since they took over the care of my child , we have communication and i always make sure that every birthday of my im always present. GUSTO KO NA PO MAKUHA UNG ANAK KO PO.

    PLEASE ADVISE ATTY. YOUR REPLY IS VERY MUCH APPRECIATED.

    Reply

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