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.

390 thoughts on “Basic issues in child custody

  1. ramonsd

    “A custody case could be an independent case or a mere incident in an annulment/separation cae” – can someone who has a pending custody case subsequently file a separate annulment case? Is this not “splitting the cause of action”?

    Reply
    1. lucille

      magandang araw.po atty.ano pong dapat gawin.ng pinsan ko.para.makuha nya.anak nya dun.sa.asawa.nyng wala.namang trabaho.pinsan ko po ay ofw iniwan.nya mga anak nya sa nanay nya pero kinuha po ng walang.paalam ng asawa nya.ngayon.po di pumapasok sa school 1 week na po.ano po ang pwedeng gawin ng pinsan ko

      Reply
      1. Sarah

        Atty, please give an advice what should i do on my case.
        i have 3 kids the elder is 8 years old and the youngest is turning 4 years old. We are not married we separated almost 5 years i have a relationship with someone who will marry me this year. the father of my children is ofw n saudi arabia. he wants us to get together again, we tried to work our relationship back last september 2014 before i found my fiancé my present man. but then i find out that he is just playing game he wasn’t serious so i decided to break our relationship again. and last year i was pregnant with my fiancée but sad to know that my baby is died right away after giving birth my fiancé is also ofw but then the father of my 3 kids is in the philippines last december 2016 until february he spend time together with my kids and now he grabbed the chances he want us to get together again as he desire it ever since. my fiancée is fighting for his right he will never letting me go and we will get married soon this year. the father of my children is upset fraustrated and now he want us to settle down regarding the 3 childrens support he want to take away my 3 children and bring them to their place and for me i don’t want because i don’t trust them taking care of them it’s ok if they will spend time vacation there but living there with them is no good result because i tried last year and observed the result the health of my kids is not good and my kids told me that no one will take care of them there their uncle is living them and just left them food in the table and be home night when his mothers home too. When he find out that we will get married he will take the 3 kids. what is the right thing to do regarding for my 3 kids custody? thank you atty. looking forward for your advice

        sarah

        Reply
      2. Atty. Pulpol

        ok ganito ang gawin nyo, pumunta muna kayo sa barangay, kung hindi ito maayos kumuha kayo nang abogado para kumunsulta. at pag katapos ay mag sulat kayo sa asawa na magkakaroon ng legal na demandahan kung hindi siya magko-comply, at kung walang sagot pwede na kayong mag tungo sa piskal para sa paunang meeting at pag d naayos sa korte na kayo maghaharap.

        kung gusto mo naman ng madali kidnapin mo ang mga taong mahalaga sa kanya at sbhn mo na palit ulo. yun, ewan ko na lng kung di pa ibigay yan,

        Reply
      3. Cedric

        Good po atty.
        Gusto ko lang po malaman kung ano po ang pwedi gawin o mga papers na kailngan upang “makapag aral sa switzerland ang aking kapatid na 7 years old” nasa Switzerland na po ang aking ama at nandito sa Pilipinas ang aking ina , anulled na po ang kasal nila at kasal na sa switzzerland ang aking ama at nais nya po sana na makapagaral doon ang aming bunso, payag naman po ang aking ina na makapag aral ang aking kapatid dun.. gusto lang po namen malaman kung anu ano ang mga papeles na dapat ihanda upang maisakatuparan ito.. maraming salamat po

        Reply
      4. Janine

        Hello po attorney sana po matulungan niyo po ako dito
        May anak po ako dalawa ang eldest ko po ay kababago nag 7 nong march at youngest ko po ay 4 kinuha po nang aking asawa nang walang paalam sa sister ko po na pinag bilinan ko habang mag ttrabaho ako abroad naghiwalay po kami nang partner ko dahil sa pambugbug sakin at pina blotter kopo cya sa barangay namin pero nang mag abroad na po ako ay kinuha po nang asawa ko ang mga ank ko at walang paalam na sinama patungo sa lugar nila sa probinsya ngayon po sa kasamaang palad siya po ay namatay. Tanong ko lang po paano ko makuha at mailipat ang anak ko sa aking sister po kasi wala po akong ina at mga kapatid ang tinuring ko kapatid ay cousin ko po na nagsama mula pa po pagkabata dahil nga po pareho kaming walang ina sa buhay. Ano mo bang dapat gawin para makuha ko ang mga anak ko sa kapatid nang asawa ko po. I mean paano makuha nang sister ko po ang mga anak ko habang nasa abroad pa po ako at hindi pa po makakauwi sana po matulungan niyo ako dito. At nang pinag babantaan po ako nang pamilya nang asawa ko po na patayin natakot lang po ako sa mga anak ko po kung anong pwedi nilang gawin.
        God bless po and more power.

        Reply
  2. Atty. Fred Post author

    ramonsd, there’s no prohibition against the proper party to file a petition for annulment notwithstanding the pendency of a petition for custody. The certification against forum shopping in the subsequent petition for annulment would most probably state the pending custody proceedings, and the latter would most probably be consolidated with the subsequent petition for annulment. I suggest you pursue to dissect this matter, with the help of other students of law, at the Bar Exams Forum.

    Reply
    1. Kimura

      we would like to talk to you and have some advise regarding this matter.
      can we have your contact number pls .
      It would be an honor to have you by our side in our battle.

      Reply
    2. Jm

      Hello Atty,
      I need your advise. I have my son with me here in US. I brought him with me when je was 7. We are from Philippines. His father was not in the pic since after he turn 6 years old. My problem is, I just got my naturalization and wanted to apply for US passport. However, they can’t issue my son a passport because they need his father’s consent. How can I obtain my son’s passport without his father’s consent since he is nowhere to be found? I tried to communicate with him once through facebook but he blocked me. I need your advice atty.

      Reply
  3. ramonsd

    Sec. 7 of A.M. No. 03-04-04 on THE RULE ON CUSTODY OF MINORS gives respondent 5 days from personal service of summons and a copy of petition within which to reply. A RTC (Family Court) where one such custody petition was filed gave respondent 15 days within which to do so.

    I was wondering about the discrepancy and whether or not it is merely too trivial a detail to even consider. I am of the position that the spirit of the SC rule recognizes that child custody proceedings are impressed with more urgency compared to other civil proceedings. That is why shorter compliance periods were specified.

    Is AM No. 03-04-04 still applicable?

    Reply
  4. bigfatmama

    please help me…
    my cousin had a live-in partner, they separated last year.
    they had a daughter, she’s 3yrs old now.
    the child used my cousin’s surname.
    the mother had another baby from another man that left her just before she gave birth last month.
    she’s been demanding child support.
    it worries him because the support might not be given fully to his daughter.
    she has no job, no source of income.
    and is facing several theft charges from her 3 previous landlords.
    are these considered “compelling reasons” for her to be deprived of the child’s custody?
    and is my cousin entitled for his daughter’s custody?

    Reply
  5. Atty. Fred Post author

    bigfatmama, my dilemma is this – I’d end up giving a legal advice on the matter if I proceed to answer your question. As repeated countless of times in this Forum, we’re prohibited from giving any legal advice. There are other circumstances that should be considered, and these are matters that are properly within the competence of your retained counsel. I hope you understand.

    Reply
    1. harold

      Atty,
      Gud day po..,

      Tanong ko lang po kung paano ko po makuha ang anak ko,6yrs old na po sya namatay po ang aking asawa nung feb,dhl po sa leukemia,ung anak ko po nasa magulang ng aking asawa,hnd po kami kasal ng asawa ko,ano pong paraan pano ko po makuha ang anak ko?ano po ang mga kailangan ko gawin?
      Hnd ko po lam ang gagawin ko,sana po mabigyan nyo po ako ng aking gagawin,maraming salamat po..

      Reply
      1. joanalyn

        punta ka po s dswd walang karapatan ang inyong beynan sa anak mo dahil una patay n ang tatay ng anak mo mas papaburan ka ng dwsd dahil minor p ang iyong anak yun lng po..pag hindi binigay sau pwde mo cla kasohan ng kidnaping dahil tinatago sayo ang anak mo..

        Reply
      2. irene

        helo po..magtatanong po sana ako kasi may anak ako isa illigitimate po sya tapos ngayon gusto ko mag asawa nang canadian ano po bang dapat gawin kasi gusto nang fiancee ko na doon kami sa canada tumira,ano po bang mga papers na kailangan ko kasi dadalhin ko yung anak ko don..

        Reply
    2. Maricon

      Hi po attorney!..OFW po ako,im seeking po ur attention to help me get my children.dalawang babae po ang mga anak ko at pareho po silang nasa ama nila. Nagfile po ako ng COSTUDY OF CHILDREN last 2014 pero sa kasamaang palad,pinili at binigay ng korte ang costudy ng mga anak ko s tatay nila. Isa pong lasinggero asawa ko po,minsan my trabaho madalas po wala. Nagdedepende lng po siya sa parents niya para mabuhay mga anak ko. Ano po bang dapat kong gawin? Do advice me po! Thank you!

      Reply
  6. ryemon7650

    Just an inquiry. I’m quite confused with this line “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.”. Now, does it have to be that me and my wife should be legally separated for this general rule to apply? Or even if our marriage still exists, this general rule still applies? thanks ahead.

    Reply
  7. GRAZIELLA

    Hello Atty! My sister is working in Italy as domestic helper.Her 3 children are left under the custody of the father. The husband has been jobless since they got married. The couple is also undergoing marital problems. My sister wants to file custody for her children because she is also experiencing emotional blackmail from his husband.Will she get the custody even if she is not physically present to give maternal love? Does she have the right to choose who will take care of her children, if ever she gets the custody. Her eldest child is now 8 years old, but she was born before they got married, and application for legitimation has not yet been applied.please help her. Is it also possible to file for the case even she´s abroad?

    Reply
  8. bellatrix18

    My husband has a 2-yr old illegitimate son under his custody. The boy’s mother acquiesced since she’s unemployed and with 3 elder children from past relationships. I plan to adopt him. How do we go with it? I very much anticipate your reply. Thank you so much.

    Reply
  9. zweela

    Hi I have a Brother he’s 22 years old and he is married but he separated with his wife because he found out that his wife had another man. They have a son and its 2 years old now and i want to know if it would be possible that my brother could have the custody of the child. What are the chances that he can have the custody of his child in this kind of situation?

    If we go to court do we have a chance in getting the child?
    Hope to hear from you soon.

    Reply
  10. aileen1980

    hi, please give me advice… my brother is 26 yrs old now and he have 2 daughters age 5 and 4, both use my brothers last name even he did not marry the mother of the child… before the mother and the kids live in my parents house with my brother, but when my brother left to do apprentice in the inter island ship, the mother left the house and take the kids with her… we went to dswd to get the custody because the mother is having an affair to a married man and she just left the kids to her parents, the kida said they don’t eat breakfast, only their grandfather because he is the one working… then the dswd turn over the kids to us because of immorality but then they borrowed the kids and did not return so when my brother came back after his apprentice he went their to get the kids…. we have the kids in my parents house, they both go to school to a day care center and have classes in the church next to our house every saturday and sunday… my brother is in manila now and applying for his visa to work abroad and very bothered because the other day the dswd called and told my sister to bring the kids with her to meet the mother in their office… the mother make a drama there and said that we didn’t let her see her kids and she want the custody… the dswd gave her the custody because of the law. we are thinking about the kids future, what will they be when they grow up… the mother is a GRO when my brother met her, now she is still doing it… what advice can you give me? do we need to go to court to get the custody? thanks in advance

    Reply
  11. qgracie14

    Hi, please give me insight about my situation. I am married for 4 years now, living with my in-law (his mom). Every time my husband and I have disagreements, he would tell me to leave the house, telling me that I’m just a sampid, border lang sa bahay nila. The reason that I stay is because he wants the custody of our 3 year old. Ayaw ko nalang sana ng skandalo, I just want to bring our child with me. I know my rights as a mother but knowing my husband, we will just be doing tug-of-war over our daughter. I want to go back to my parents house which is only blocks away from where we live now and I’m afraid of the scandal it might create. Please tell me what initial steps I must do if the situation gets out of hand. Should I go to the baranggay, police or dswd. I want to do this in a civil way. Please help me. Thanks!

    Reply
  12. eci

    I just want to know what are the proceedings for me too have custody of my 2 year old child. My husband is an Indian but we got married in the Philippines. Now I want our marriage annulled and take custody of my child, but we are currently in Saudi Araia. Please help me…Thanks…

    Reply
  13. loveskee

    i need help… i have a minor 16 year old daughter who gave birth october 4,2008.. the father of her son is 18 years old and did sign the acknowledgment on the birth certificate..therefore..it follows his last name…… now he is demanding to have my grandson ……said that he can take him because its after his last name..he even tell their common friends of his plans…my daughter and grandson lives with me and the guy with his mother and from time to time he comes to give some milk and diapers…. they are not married……..is there a way for me to have my grandson after our last name…….. or does he have the right to take away my grandson….is there any actions i can take regarding this..please help…thank you.

    Reply
  14. ja_carag

    How long does a custody case normally last and how much would be the projected cost of one? If the info about cost is confidential, please email me at ja_carag@yahoo.com or I can send you my contact numbers.

    Reply
  15. mariacruz_1027

    Hello Atty,

    I have 4yrs old son carrying my last bf’s surname
    It’s been 3yrs now that I don’t know where is the guy
    Never had financial support ever

    Just this year I got married with a guy that wanted to take us to Canada
    My question is can I get full custody for my child from the court
    withour consent of his father?

    Thank you and I am looking forward for yur response

    Best Regards,
    Maria

    Reply
    1. Jema

      Hello good day po Atty.
      Ang tanung ko po ay, pwede po ba ako makakuha ng full costudy sa mga anak ko 5 po cla, hindi po ako kasal sa tatay nila at ngayon po ay nasa abroad ako ang lima ko pong anak ay nsa pangangalaga ng nanay ko at balak ko po na kunin na cla at dito na manirahan sa ibang bansa. Thank you po and have a nice day.
      Regards
      Jema.

      Reply
      1. Julie

        Gud am pm atty. Tanung ko lng po once po ba na ngfile ako ng custody of minor child at nagrant sa akin ang award sa 5 years old ko na anak. Applicable prin po ba ung custody ko sa knya khit 7 years old na sya? Kse sabi ng tatay ng anak ko mamimili na ung bata kung san nya gusto sumama. Hiwalay kmi pero kasal at base sa agreement nmin hihiramin lng nya ung bata pero ayaw nnman nya ibalik sa akin.

        Reply
        1. Zen

          Hello Atty,

          I was legally married and have 3 children. My 13 years old choose to live with his father. My problem is how can I take back my 13 years old son. He is not well taken care of his father, he is out of school, only stays/sleep in his father’s house 2 for 2 nights and the rest of the days and night is spent to a family that his father supported. My son is lavishly provided of money more than he can manage at his age, he is allowed by his father to drive car and single motorcycle in the city or anywhere without license since he is a minor. I am so worried of my son. Atty I am married to an American.

          Please help me

          Reply

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