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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i have a problem right now…i am 22 y.o, single but have a son…i am employed and 3/4 of my salary goes to my son’s needs…since my son enter this world her mother left him w/ my family, we never let my son lived in a no mother idea…my mother always texted his mother to visit her child but she always making a visit maybe once every 3 mos…all the needs of the child is carried by me and my father..and as i discovered she is having an affair w/ others w/c is her rights, but i also discovered that she is employed but her job is at night…i also discovered that she is frequently drinking…using some marijuana..and many more…now she texted us that she wants her son back to her costody..i cant helped but fight for my sons right and costody..bec i know that he will having a miserable life under her mother costody…please helped me have an idea if i have a right to fight for my son costody..thank you
hi atty,..i’m a mother of two kids,..their father and i got separated almost 2 years ago and my brother in law told me that his brother was already living with another girl,i’m fine with that issue but the problem is for almost 2 years i was the only one supporting the kids is there any way i could ask for a child support even if he keep on saying he do not have a job?he’s so much fit to work but i was wondering why up to now he still doesn’t have one,..my only concern is that next year my youngest will be going to school already but he does not even bother to regularly pay for the school service,..i could do something about it but i know it’s already unfair that he is the father and he do not even exert an effort to help for the kids financial concerns,..
My fiancee needs to prove full custody of her 9 year old daughter to US Immigration officials for the daughter to receive a K-2 visa and join her in travelling to the States. My fiancee was divorced from her Filipino husband in Australia… and she currently resides there as a student. Her daughter is in Manila. Her ex-husband in the Philippines cannot be located (still her husband by Philippine law of course).
(Note: I am fully aware that her divorce is not recognized in the Philippines…so she will process the K-1 and K-2 visas outside of the Philippines. I assume it is best for the child to be outside of the Philippines prior to the K-2 being placed in the child’s passport?)
Specifically, can DSWD issue a custody document to my fiancee for her daughter…especially when the husband is no where to be found…or will she need to go to court? I’m sure US Immigration will accept whatever documents are accepted by Filipino authorities regarding custody…I just don’t want her to have go to court as she cannot stay long if she must return to the Philippines for this matter. If she can work directly with DSWD over the course of 2-3 weeks to get a document that proves or grants her sole custody…this is no problem for her to initiate with DSWD.
Is this a matter on which you can give your always knowledgeable and well-articulated advice…or will this require professional assistance?
P.S. – I have reason to believe the father of the child subjected the child to abuse within the last year. I am not sure if this makes the case for DSWD easier to decide…or if it is still something that would have to go to court?
please tell me how to file for case of abandonment… where to go and how to do it…your reply is very much appreciated. sallieroa@yahoo.com
Dear Atty. Fred
I need ur advice before going to far. I’ve searching the net for a week now for some article regarding my situation. so here it is, Me and my so called ex wife are seperated for 2 years and Im filling up an annulment this year. we are both working out the country and we have a 4 year old daughter and she’s with the mother of my ex wife which is in the Philippines. Since were married, my daughter is under my name but when we got seperated some circumtances happened such as i can’t bring my daughter to my house to be with me everytime i went home for vacation and this is once in a year or two. in this case, my relatives nor my mother can’t be with her once in a while and my mother was out of the country also for most of the time. eversince we got seperated im still giving out support to her by sending money(15 percent of my net income – which i read on other article) and even paying for her school and medicals. but because of the situation, i recently stopped, i know it was wrong but what they’re doing is wrong either. i want them to realize my point in this situation. i know that under seven years old the child must be with her mother, butsince we’re both outside the countries, i want my daughter to be with me if i was on vacation, let say saturday and sunday as my she’s going to school by weekdays. as i said, before everything went wrong, i want your advice!! What are my rights in this situation? what are my options? i don’t want to file a custody as of now as i myself is out of the country most of the time and don’t want to make things worst for my daughter. all i need i time for her to be with me once in while..my ex wife hometown is Pampangga and i live in Laguna..travelling from day to day is not practical..my ex wife and her parents allowing me to visit my daughter but not allowing to be with me in my hoouse..
Please help me!!!!
Thank you very much and looking forward to your reply..
Regards
Ryan Jeffrey M. Atong
rjatong@gmail.com
Hello Atty,
I have a 1yr6mos son. His mother and I have seperated and she has him. I would like to have sole custody of him due to the fact that i can provide my son’s needs better. Do I have a case? looking forward to your reply.
Thank you very much!
Gau
Hi sir my brother separated with her wife last october she just left at home together with their 2 kids because shes telling that my brother has mistress..after a week they signed an agreement to the barangay office stating that my brother will give an allowance of 2000 a week, that their children will study in private school until they will finish college and he will provide everything for them…but my brother has an income of 10000 kasi mekaniko lng nmn siya only at ngaun gusto niyang mgrenta ng bahay sa pasukan kasi daw malayo ang school ng mga bata…..at ngaun hingi siya ng hingi ng pera s nanay ko kasi kakaalis lng ng kuya ko puntang saudi…..my brothers ex has no work shes just sitting umaasa lang siya s padala nmin coz me and my sister is working abroad we are willing to help our nephews but we think shes abusing us…is there anything we can do for it…please reply
Atty,
i was married for about 6 yrs and i have a 6yr old son.My husband and i were separated because of pambabae nya.the problem is hindi regular yung support nya para sa aming anak.please help me what should i do?
Thank you and God Bless!
IM SHARLENE VENDAL..IM ASKING ABOUT THE CHILDREN OF MY BROTHER ALREADY DEAD..MAY BROTHER HAD 3 CHILDREN ELDEST IS 7 YEARS AND 8 MONTHS OLD,SECOND IS 5 YEARS OLD AND THE LAST ONE IS 2 YEARS AND7MONTHS OLD.MY CONCERN OF THIS IS THE MOTHER OF THIS CHILDRE IS HAVING AN FAST RELATION WITH IN 1 MONTH AFTER MY BROTHER DIED.AND MY BROTHER DIED LAST DECEMBER15,2009,BUT IN MONTH OF JANUARY HIS WIDOW HAVING AN INSTANT RELATION BUT IM NOT AGAINST FOR HER BECAUSE THAT IS HER LIFE MY CONCERN OF THIS IS ABOUT THE CHILDREN WHICH IS MY NIECE AND MY NEPHEWS.WHEN THE MOTHER OF THIS CHILDREN HAVING A RELATIONSHIP I HAVE MANY INFORMATION THAT HER MAN LIVING WITH IS AGAINST TO THE CHILDRE.AFTER A MONTH MY BROTHER WAS DIED SHE LEFT AND BRING HER ELDEST DAUGHTER TO TACLOBAN CITY AND 2 OTHER CHILDRE LEFT AT HER PARENTS CUSTODY.AFTER HOW MANY DAYS IVE KNOWN THAS SHE HAD ALREADY A LIVE IN PARTNER AT TACLOBAN BECAUSE HER RELATIVES TOLD ME ALSO.ONE DAY THE RELATIVES OF BRELITA THE MOTHER OF CHILDREN.TOLD ME THAT THE CHILD SHE BRING AT TACLOBAN IS NOT IN GOOD SITUATION BECAUSE HER LIVE IN PARTNER DONT WANT THE CHILD.SO SHE LEFT AT HER RELATIVES HOUSE HER CHILD A 7 YEARS OLD CHILD A GIRL.WHEN I KNOW THE SITUATION I WAS FINDING A SULOTION THAT MY NIECE CAN GO BACK HOME HER TAGUM BECAUSE IM VERY MUCH WORRY ABOUT IVE KNOW.WHEN THE CHILD GOT HER I AND MY SISTER HELPING THAT THE CHILDREN CAN GO TO SCHOOL. SO THE 2 CHILD GO TO SCHOOL ..WE SUPPORT AND TAKE CARE OF THE CHILDREN.WHEN SHE LEFT HER.WHEN TIMES THAT THERE HAVING A PROBLEM IM HERE TO SUPPORT THE CHILDRE ,SO I TOLD HER PARENTS THAT THE CHILDREN WHILE STUDYING ARE LIVE WITH ME SO THAT I CAN MANAGE CAREFULLY FOR THE CHILDREN..A FEW MONTHS PAST THE MOTHER GO BACK HOME HERE AT TAGUM..SO I MADE A DECISION THAT THEY GO BACK TO THERE MOTHER SO THAT THEY COULD BONDING…BUT A FTER 2 WEKS I RECIEVE A NEWS FROM THERE RELATIVE THAT SHE WONT GO BACK TO TACLOBAN AND LIVE WITH HER LIVE IN PARTNER BECAUSE HE CANT ACCEPT THE CHILDREN..BUT IN A WEEK SHE FIND ANOTHER MAN AND WITH IN A FEW S DAYS OF METTING SHE LIVE IN AGAIN AT THE HOUSE OF THERE PARENT..
SO THATS WHY IM VERY MUCH WORRY ABOUT THE FUTURE OF MY NIECE AND NEPHEWS.THE MOTHER OF THIS CHILDREN HAVE NO WORK AT ALL THEN THE MAN SHE LIVE IN TODAY IS A GAMBLER AND NO WORK .THEY LIVE AND PLAN TO GETTING MARRIED BUT THE MAN HAD ALREADY A PAST RELATIONSHIP A WIFE AND HAVE ALSO A 2 CHILDREN.THEY TOLD THAT THE MAN IS PROMISE TO ADOPT THE CHILDREN..BUIT HOW HE CAN GIVE HIM A GOOD FUTURE FOR THE CHILDREN THAT HE EVEN HAVE NO WORK HE DEPEND ONLY IN GAMBLING..
THATS WHY IM ASKING YOU SIR AND GOOD ADVICE BECAUSE WERE PLANNING TO ASK CUSTUDY FOR THIS CHILDREN..IS THERE A POSSIBLE THAT THERE IS A CASE FOR THIS..IM WORRY FOR MY NIECE AND NEPHEWS.
THE TRUTH ALSO GRANDSPARENTS OF THIS CHILDRE IS ALREADY 64 YEARS OLD AND NO WORK DEPENDENT FOR THE SUPPORT OF THE CHILDREN..
IM WORRY ABOUT THE SCHOOL AND FUTURE FOR THE KIDS …IF THE LIFE STYLE THEY HAVE IS VERY UN DESCENT..
hi atty i was amaze with your site coz i really need your help so badly. Me and my husband been married for almost 2 yrs now but last january he started to physically and emotionally abuse me til the present. we still leave together but due to what his doing i cant take it anymore i want to get out of our marriage and get the sole custody of my son. we were always playing tug-of-war in terms of my son custody. my son is 1yr and 5mos.my husband kept on threatening me that he needs a court order in order for me to have the custody of my son.I have a current job which is a flight attendant and my husband is a call center supervisor.pls help me atty. I wish you can email me your advices and what move should i take first order to get the custody of my son.thank you very much atty.