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.

359 thoughts on “Basic issues in child custody

  1. Jaz

    Greetings po.
    May dalawa po akong anak, hnd po kami kasal sa tatay nila na ngayon ay may asawa na. gusto ko humingi ng sustento ng buwan buwan. pag ngtetext po ako sya pa nagagalit kaya gusto mghain ng demanda laban sa knya. alam kong may karapatan ako bilang nanay na humingi kahit illegitimate mga anak ko. ang tanong ko po sir, sa law po ba may karapatan syang kunin mga anak ko since 11 na yung panganay at 7 na bunso. nasa mga magulang ko mga bata at ako po ay ngtratrabaho abroad. Godbless po

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  2. Michelle

    Helo poh isa poh akong ofw my 3 anak na 7 , 8 at 9 yrs old.. D poh kmi kasal nang ex ko, cno poh ang my legal costudy sa amin na wla naman pong trabaho ang ex ko pro may kaya ang family nya. . At kng sakali poh na cla ang piliin nang mga anak q kc nsa puder nila .aytorney plss help me in this case.. Gusto ko poh mkuha mga anak ko

    Reply
  3. jarah

    please help me i’m only 22 years old and i have a daughter who is 4 yrs old right now and everytime i want her to take with me her grandmother (side of her father) doesnt allow me to take my daughter. please need you advice

    Reply
  4. Meryannmamitag

    Hello po, pls help me..
    Gusto ko po sana i ask gano po ktagal ang proseso kapag humingi po ako ng rights s dswd na ipakita sa akin ang anak ko? Sa ibng bansa na po ako naninirahan… 4 yrs ko na po hindi nkikita at nkakausap manlng ang anak ko.. anu po ba ang pwede kong gawin… sana matulungan nyo po ako.. 12 yrs old na po xa ngayon..

    Reply
  5. Mhean

    Anu po ang pwede kong gawin.. meron po ako live in dati , ngkaanak po kmi, 12 yrs old na po xa.. nsa akin po yung anak ko almost 8 yrs po.. tpos npunta na po xa s ama nya dhil ngpkasal na po ako s iba, now po nsa ibang bansa na po ako, bago ko po ibigay sknya ang bata may usapan kmi na pede kmi mghiraman …kaso simula po nung npunta sknya yung bata ni isang beses never ko po nkita yung bata… anu po ang pede kong gawin.. sana matulungan nyo po ako.. miss na miss ko na po yung anak ko..

    Reply
  6. Dennis

    Dear Atty Fred,

    I need your advise as I am in desperation.

    I have five (5) children – ages 21 (M), 17 (M), 16 (F), 10 (F) and 8 (M). My wife dumped me last February, 2017 after she was promised that she will get a job in Saudi Arabia by a Filipino-Saudi-based recruitment agency to take care of a Saudi Prince son within the first semester this year. For me it was a relief that she personally declared that we get separated as many a times I have wanted but did not do so for I thought things can be remedied for the sake of an intact family. She is still in the Philippines… waiting for the overseas work as promised.

    1.) In 2001 I went to the US & worked as an OFW for four (4) years. During these times I was sending US$500 to US$2,000 a month, depending on the extra income I got but on the average US$1,500 per month for four (4) years. After 4 years, I decided to go home thinking that my wife was already able to save. So when I went back to the Philippines in August, 2005 and to my dismay I had only P60,000 in the PNB account of my wife. I went berserk hoping I can build a house for my family. I left them, there were still 3 children at that time as they stayed with my in-laws when I left for the US and for four (4) months I was a mess. Many information came out that my wife was having the “best times” of her life while I was in the US.

    In January, 2006, I went to my senses that it was just money & decided that family was important. So, I forgave her. Strike One forgiven.

    2.) I was able to get good-paying jobs, twice in fact in 2006-2008 and 2008-present. She was a full housewife and all my salary (ATM) was with her. Many a times, I asked her how she spent the money as we always ran out and even have to take petty loans to get both ends meet. All I got was ranting that I be the one to do the budgeting that of course, I cannot do because my job required and still requires traveling. We had already five (5) children then.

    In the middle of 2014, she started spending a lot of time again with her friends and came home early in the morning. My three (3) teenage children did not tell me about her escapades until it became worst. On days, weekends and even birthdays when I am home, she left at 7-8PM and return early in the morning drunk! Of course, she had many alibis. The children complained that there was no food in the ref. We started quarreling as I only demanded respect and that she be a good mother to the children. This created a monster out of me & the messy relationship affected the children. Even to a point that my eldest son suggested that I remove their mother as beneficiary in my accident insurance. My children did not tell me all about her escapades as they did not want me to be bothered while working and traveling.

    Things got really worst when collectors from lending institutions started knocking at our door with summons for her debts unpaid. The credit card bills skyrocket to the amount of P200,000-plus. My ATM card was a collateral in one of the lending institutions, the iPad I bought for my children was pawned and bills (water, power, cable, internet, etc.) were left unpaid. Finally, in July, 2016 she asked for forgiveness and her reason was “she wanted to hurt me”. And she asked for help to pay her debts as she said she will pay me when she gets a job. I told her then that she did not owe me anything as she owed it all to our children because the money she wasted were for our children. Again, to keep the family intact, I paid her all her debts with my eldest son paying the money to her creditors and had them signed a document. I took numerous loans and even “loaned” my retirement in the amount of P400,000 to pay all her debts and the credit card company.

    After I paid her debts, my eldest son took care of the budgeting and she became “sober” until she got a job in a hospital as a nursing-aide with a minimum-wage salary less deductions sometime in August, 2015. My obligation to the numerous loans amounted to P40,000 per month with terms payable in 2-, 3- and even 5-years.

    She became the “budget officer” again in 2016. Second strike forgiven.

    3.) After one (1) year working, she started to go back to her old ways. During her day offs, she will find time to be with her friends and office mates leaving her children to fend for themselves. After office hours, if say she got off at 11PM, she will be home early morning. She did not answered text messages if asked of her whereabouts. I am not paranoid nor a jealous person as I told her but all I asked from her was respect but it just got worse and I became a monster to my children as we begun quarreling again. Strike three, I had enough.

    4.) In February, 2017, she told me that let us just be friends and she asked for dissolution of our marriage. I conceded, at least this came from her and I asked for the ATM card (salary). Before this, I asked her to pay the school fees of my four (4) children amounting to P50,000 and she did not pay the whole amount and used part of the money again. I only knew this when one of my daughters showed me a bill that we still owed the school P6,000 in order for her to take the final exams.

    5.) When the school year ended, I brought my youngest 8-year old son to spend time with me in Cagayan de Oro City (CdO). During this time, he told me that he do not want to go back to Iligan City as he will just be staying home, watch TV all day long. He has no playmates in the house or neighborhood we are staying, whereas with me, he gets to meet his cousins and play most of the time with them. He is always left with his older siblings and if his mother was home, she was asleep most of the time. So when I asked him if he wants to study in CDO, he said yes.

    My wife does not subscribe to this as she wants all the children to be with her despite her meager salary. She even threatened me that I will never get a single centavo of what is left of my salary because she will sue me and the court will favor her demand being the mother.

    Atty. Fred, what is the option left for me? I am financially in debt and coping with the limited money I get during pay days. With my wife out of the way, I can assure that I can enroll my children in good private schools and provide all what I earn to them.

    Reply
  7. Mengay

    Hi po Atty.

    I have a 2 years old son po, iniwan ko na po kasi yung tatay nya kasi po nambabae sya, pero sa txt ko lang po sya nahuhuli. Sa house po nila kami nakatira sa which is bahay po ng byanan ko, parehas po kaming may trabaho, pero lahat po ng needs ng bata ako nag proprovide dahil nakasanla po yung ATM nilang mag ina, may pension po kasi ang byanan ko, ako po 2 times a week 12am na nakakauwe dahil sa trabaho kong Bookkeeping. Pag po sya nalalasing kung ano ano po sinasabi nya kesyo may iba daw ba kong kasamang lalaki, pero wala naman po talaga, work lang po talaga. Ngayon po umalis na po ako sa bahay nila kasi d i ko na rin naman po mahal ang kinakasama ko, dahil 3 beses ko na syang binibigyan ng chance. Ayaw po kasi nila ipakita sakin ang anak ko, ano pong dapat na gawin ko?

    Reply
  8. mj

    good day atty.pano po dapat ko gawin para makuha ko guardianship ng anak ng naulilang kapatid ko dahil inabanduna n dn ito ng sariling ina ng mamatay ang kuya ko,naiwanan s pangangalaga ng nanay ko at sa kasamaang palad pumanaw ng magkasunod ang nanay at ate ko na nag aalaga sa pamangkin ko pakisuyo po na mapayuhan nyo ako para makuha at maisama ko nlng dto sa ibng bansa ang bata salamat po

    Reply
  9. aileen

    Hi,I’m 28 years old and a mother of 6-4yrs old kids.their father and I separated 2yrs ago.we’re not married,he acusses me of having an affair to another guy.I admit to him that I had a feelings for someone but I don’t want it to ruin our family so we decided to move to another place and resign to job so that I can forget about my feelings for that guy.I thought we are okay with that plan but when I came home from work just when I stepped out of the jeepney he slapped me in front of so many people.I was shocked and decided to end our relationship because of what he did.after that he took my kids.I can only borrow them on weekends and if he gives permission to it.I want to get my kids back.can I have their custody after what happen.I’m also living with another man now.pls help

    Reply
  10. Shiela

    Helo po Atty!
    Tanong lng po.my friend po ako ngcocourt cla ng custodyy sa bata at yung bata ay special child pero hindi nmn extreme tlga.taz now nsa friend ko yung anak niya kc prati nlng cla iniiwan ng nanay nung bata taz now gusto kuhanin ng nanay ei ayaw na ibigay ng friend ko yung bata na ngayon ei 10 y.o na..
    Ano po kaya ang magandang gawin niya atty??san ba dapat mapupunta ang bata hindi nmn cla kasal at ang bata ei 10 y. o na..medyo late development lng ang utak niya.sana po mbgyan nyo kmi ng advice.thank you

    Reply
  11. Glory

    Good Day. I want to ask lang po sa case ko and my mother. Sa Birth Certificate po parents ko po nakapangalan as parents ng bunso ko pero my mga evidence po ako na ako po yung lumuwal sa bunso ko, like billing sa hospital and mga ultra sound check up ko. May laban po ba ako na sakin po mapunta ang bunsong anak ko? Kasi sabi po ng parents ko wala daw po akong laban. 4 years old na po yung bunso ko, ayaw ko na po kasi magkahiwalay yung bunso at panganay ko, Im a single mother but i have my leave in partner who is willing to support me. Stable din po ang work ko today. Hope matulungan niyo po ako. Thank You.

    Reply
  12. jodie

    HI my name is Mr Jodie from new Zealand. I have a son age 18mths with my x live in partner . I do believe she has by pola . She has taken our son along with most of the house items . She comes from a very poor family – that when I was staying there her mother took and sold items of mine . Since we moved to a house i am renting for the last month she never has settle .2 times now she has taken our son .saying I have no rights and can’t do anything about it . I have videos of her going crazy and stabbing me with a knife. I come from a very good family in new Zealand. I can care .feed .schooling .make his life very happy . The lawys in the Philippines are strange but seems to work for the Philippine people . I just worried about his food and nappys .and the place where she has him . I message her nicely asking if I can drop food and nappys a care package. She saying she not need my help .that I can’t every see my son . How is this more fun in the Philippines. Pls help me God bless everyone that reads this .

    Reply
  13. liezl

    good day atty,
    ako po si liezl na taga bohol,may kalive-in po ako almost 5years ago, may anak kami 1 tapos may anak sya nung una 2,,ngayun po ang problema ko po yung tatay ng anak ko tinatakot ako na hindi na sya magsusustento sa akin if ibulgar ko daw yung katotohanan sa pamilya nya,,ngayun po anu bang dapat kung gawin para legal yung sustento niya kada buwan sa anak ko para hindi na gugulo ang lahat,,siya po isang engineer may kaya sa buhay pamilya at ako walang trabaho kasi walang magbabantay sa anak ko,,ang pagpakilala niya po sa akin 2008 pa da w hiwalay siya sa asawa niya tapos noong 2011 nagkakilala kami…please po tulungan niyo po ako kng anu dapat gawin at proseso po at magkanu po magagastu,,,salamat

    Reply
  14. Jennifer

    hi good day atty.
    Gusto ko lang po humingi ng advice..regarding po sa pagkuha ng custody ng 12 yrs old k na anak na babae, yun bata po kasi eh nsa pangangalaga ng father nya 6 years already Hiwalay kmi ng father nya almost 9 yrs na reason bakit ako pumayag na iwan sa X husband ko ang anak ko kasi po ng abroad ako hiningi ng ama nya na kng pwede sya muna mgalaga pumayag po ako but ngayon po na tapos na nya ang elementary hinihiling ko po sna na sa akin nman sa poder ko mgstay at mgaral ang bata ng high school ayaw pumayag ng father kasi daw wala ako dahil nsa abroad ako ngtatrabho ang gusto ko lang po sana makasma yun anak ko at tumira sya sa bhay nmin kasama mg mga kapatid ko at pamilya…anu po ba dapat ko gawin?

    Reply
  15. Jeremiah

    I have a 4 months old son and my ex gf and I were never married. Both of us earn more than the basic salary. She said that she will not strip me off of custodial rights for the kid but I’m just concerned that she will take the kid away from me once she gets into another rel. ( she is already blatantly showing me that she is finding another guy to replace me as the father) what are my rights in this situation if:
    1.) She gets married with someone else and wants sole custody of the kid, and stripping me of any paternal rights?
    2.) She gets pregnant with someone else but they are also unmarried but planning to give legal rights to the other guy for both children
    3.) She takes away the kid from us regardless if she is into another rel. Or not and files a TRO against me but asks for money even though she can also provide for the kid?

    I just want some form of custodial rights for the kid if ever she asks for financial support. Ayoko lang maechapwera sa buhay ng anak ko at magbayad ng needs nya pero iba kinikilalang legal father nya. Salamat po in adv.

    Reply

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