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.

304 thoughts on “Basic issues in child custody

  1. Jamaica

    Hi attorney need some advice i have one child who is now 10years old and his father didnt give a support were not married now hes is jail now can i take any support from him?

    Reply
  2. Mary ann

    Good day attorney.
    I want to ask you regarding child custody… i am married for 13 years but i want to get out from this marriage because i can no longer live with my husband… who is unfortunately still relying on his parents support for almost 13 years now…the feeling is gone and i can no longer see any reason to live with him… he is very lazy,and all.he has used drugs,that probably caused his depression.and he is fond of playing e-games eventhough he has no income,he gets it from the money of his parents….and now that i am fed up with all these, i want to leave him,maybe file a legal separation against him…but i want to leave him first…now, my problem is they want 2 out of my my 3 kids…his mother wants it for him to avoid stress and depression again…now, i dont want them to have even one of my children…what to do? What are my rights as a mother…i am unemployed,and i am planning to get a job before i leave him,otherwise my parents and my siblings will be the kne to support me and my children financially…if i dont get a job immediately.
    Thank you

    Reply
  3. Franz Anthony

    hi atty. i have a son but we are not married. when the child was born, the registrar did allow the mother to use surname and put my name in the birth certificate. i compiled the requirements here in australia made an affidavit acknowlegde as a father and the use of surname. i had made the affidavit in the philippine consulate and it has been red ribbon. since birth the mother made an effort to process the papers. ive been supporting her and her family since she was pregnant. the was with her for 2 yrs and i been supporting the child including the family of the mother. last yr november the child was in our custody until now with the care of my parents. his with them without the support of the mother. she didnt even send a single centavo to financially support my son. and now she got pregnant and be married on january. shes planning to get the child from my parents and bring the child to US because his marrying a US citizen. im so worried because i dont have the legal rights of the child since his a illegitimate child. i would to know if i have a fight on the costudy of the child? my son is still below 7. i hope you can help me with my condition. im currently here in australia.

    Reply
  4. Aroha

    Hello attry. Just want to some advise lng po. 8 yrs na po ko hiwalay. 2 yrs old plang anak namin ng maghiwalay kame isa anak at kasal po kame sa pinas. Nasa italy po siya at kasal na. Gusto ko lng po makuha ang full custody ng anak ko para maging residency siya sa nz dahil need ko po ng custody of child pano pano po ba ang dapat ko gawin. Ano po ang mga kailangan ko to file and to get full custody while outside philippines po ako.

    Reply
  5. klinthon

    atty. what if yung anak ko is under the care of my cousin from grade 1 to 3 and allof hos financial support was given by those who adopt without us neglecting our child can i get my son back after 3 years of abandonment of my child?

    Reply
  6. Mhai*

    Good day atty.

    Tatlong taon po ang anak ko hindi po kami kasal ng ama niya pero sa bahay kami ng parents niya nakikitira at same po sila ng last name ng ama niya. Wala po kaming trabaho ng ama niya pero gusto ko pong nasa full costudy ko po yung anak ko.

    Reply
  7. Colyn

    How are you atty. Fred… i have a question… what if the couples was not married and they got separated because the man was having an affair with other woman… They have a children an 11years old and a 4 years old.. then the father came back to thier house and waiting for the mother to have relation with other man, well its because she’s already separated to his hausband, and if he caught his exwife he said that he will take thier children away from her… is it posible or is there any way that the father can’t take away the children from thier mother? Or what else that the mother can do to prevent her ex hausband from taking thier children away from her and have a new partner in life… i’ll be waiting for your answer atty… Thanks in advance and more power to you…=’)

    Reply
  8. Marilyn

    Good day atty. I want to visit my children that I haven’t seen for six years. I accidentally left them to my parents in law. I really want to get them since the day that I ran away but I never did because I was afraid, my husband might killed me beaceuse he always kick me in fact that is the reason that I ran away…I don’t have any plan to get them, all I want to do is to visit them..But my husband and his parents doesn’t want it..Please help me. Thank you atty. God bless

    Reply
  9. Peanut

    Good Morning po gusto ko lng po sana malaman kung magakno lng dapat ang ibigay na sustento ng fiancee ko sa anak nya sa ex girlfriend nya? kase po gusto namin gawing legal ang pagsustento sa bata lalo na’t may bisyo yung ex nya. Sana po ay bigyan nyu ng pansin ang tanong ko. Salamat and God Bless po.

    Reply
  10. Charlotte

    Hi Atty! My cousin is in need of help. His youngest child who is 2 years old was taken by his wife (they are separated but not yet legally) without his permission. He is no longer seeing his youngest as his wife does not allow it. Their 2 eldest who are 11 yrs old and 8 yrs old is under his custody. In addition, his youngest is in Quezon City being cared for by his wife’s relatives and the wife is living in Laguna. Please help us on how to get the custody of the child or even get his visiting rights.

    Reply
  11. 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
  12. 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
  13. 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
  14. 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
  15. 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

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