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.

103 thoughts on “Basic issues in child custody

  1. shana2010

    atty, ask ko lang po kung pano po simulan ang pag petition ng full custody ng bata. simula po kasi ng buntis ako hanggang manganak at mag 2 years na ang bata wala pong support ang ama nya may sariling pamilya po yung nakarelasyon ko at hindi na po kami nag kikita. nag asawa na po ako ng italian at gusto po nya makasama ko pag alis ko ang anak ko. kaso kailangan po ng consent from other parent. nung nakontak ko po ang ama ng anak ko hinihingian nya po ako ng pera para papayagan nya na umalis ang bata. yung surname kasi ng anak ko ay sa ama nya inilagay ko po kasi sa BC ng bata ang initial ng ama nya kasi natakot ako dati sa tatay ko kapag nagtanong sya kung sino ang ama. pano po kaya ang gagawin ko? sana makatanggap po ako ng sagot.

    leamae8@yahoo.com

    Reply
  2. jing

    Good Morning..my Wife is in Japan for 2 years now…we’ve been legally married since 1997.. my two kids ages 7 and 3 respectively are with me since she left for Japan to work.. although it was a very sad situation for our family, but we had to accept it for the future of our kids.. but lately, we where having issues and arguments about rumours which my sister in law had started about my fidelity… although it was never proven, still my wife opted to side with her sister when i confronted her… this made my communications with my wife cold… Now my situation is this.. my wife is asking me to let our kids take a vacation with her parents and sisters in Cavite… saying if i do this and patch up things with her family, she would forget about everything and resume communication with me… i love my Family very much and i take care of the kids very well…and would very much like that everything would be better for all of us with my in-laws too…but the problem is i DON”T TRUST THEM…i’m thinking that if i would allow my kids to take a vacation with my in-laws, they would stir up things again with my wife and would not return the kids back to me… Please help me with my predicament… can they take a hold of my kids even if it is the wish of my wife who is abroad?… what is my right as a father to my children having this situation?… please enlighten me…thank you very much

    Respectfully,

    Jing Santos

    Reply
  3. rex

    My ex wife has a live in partner .They keep on fighting what ever reasons are. My main concern is, paano kung kumampe ang anak ko sa mama nila at magsakasakan sila.its iether ang anak ko madesgrasya or yong partner nya..but I know one of the reasons are, she still keep going to casino (ex wife ).even my child support allowanceswas been sacraficed and tuition fees .They often left at home sometimes no food .She just extorting money from me.can I file a case for my full children custody?even if im here working abroad?..Please help me .

    Reply
  4. kimchee

    Hello good morning atty. im kim 22 yr. old 5 and half pregnant soon to be single parent this coming august. Ask ko lang po is it possible to get any financially support with my 1 and half ex live-in partner who is father of my upcoming baby. Alam nya po n sya ang father ng baby ko.But My problem was i had financially prooblem during pregnancy and i never undergo pa po check ups coz of financial. Can i file case to him thanks po!

    Reply
  5. kimchee

    Hello good morning atty. im kim 22 yr. old 5 and half pregnant soon to be single parent this coming august. Ask ko lang po is it possible to get any financially support with my 1 and half ex live-in partner who is father of my upcoming baby. Alam nya po n sya ang father ng baby ko.But My problem was i had financially problem during pregnancy and i never undergo pa po check ups coz of financial. Can i file case to him thanks po!

    Reply
  6. meroy

    i have a 3 yrs old daughter with my surname but we are not married with the mother, is there a chance that i can get the custody of my daughter since her mother cannot support my daughters needs since she doesnt have any work at all?

    Reply
  7. Dela Cruz

    if a minor 14 yrs old is in the Philippines but a US Citizen,
    is any of the minor’s relative has the right to take custody/ guardianship to the child, even if the brother who is in USA Prison appoint someone else and not the NIECE

    The brother wanting to bring back the minor in USA with the help of a family friend whom he trust to take care of his brother as they have known more than 40 years but the NIECE /relative is opposed and kept stopping to let go of the minor.

    The Mom of the minor has 2 Uncle – brother of their Mom is willing to let the minor travel to USA to be with the family friend but the niece kept holding not to let go of the minor and process all the benefits of the kids without hte persmission of the brother neither of the 2 Uncles.

    The minor is US Citizen who was left in the Philippines

    Can the niece do that by Philippine law?

    how can we report this issue so the niece will surrender the child and all the properties /estate of the parents of the minor.

    Reply
  8. Alvin10

    Please give me an advice. I’m currently working abroad and I want to have full custody of my 7 years old son. He’s turning 8 this november. he’s been living with my aunt with my full support in Leyte for the past few years. Now he is in manila for vacation so he can be with her mother for some time. My x girlfriend never had a job, she has 3 small kids (under 3 y.o)other than my son from her present partner. They live in a small room with very bad neighborhood. My son is schedule to go back to leyte on june to resume study but my x girlfriend is now refusing to give my son back to my aunt. please give me an advice on what I need to do to have full custody of my son. Thank you very much.

    Reply
  9. mickmick

    hi atty good day,

    i just want to know if i can file a case against my husband we r not separated as of now but soon maybe, he is an OFW he works in a ship his income when onboard was almost 120k we have 2 kids he gave monthly 30k for the monthly support of my two kids but recently he told me that he can give 12-15k a month for the support this is because he is on vacation for the reason that he had a health problems that’s why he cant work, can i file a case on him with that issue? thanks godbless

    Reply
  10. SOTNEM

    good day atty.,
    I have 2 kids 8 and 10yo. and I am separated with my wife my 2 kids was in their mother. the question is can I win the case if I will file a case for the custodianship of my 2 kids? scenario is I’ve enrolled my two kids in a reputable school in our place and I am giving my monthly support to my wife for my kids. I want to have the custody because my wife is not sending my kids in the school anymore and when my kids are here with me i saw that their mother was not taking well care of them. she doesn’t help the kids to do their homework, their nails are long and so on and my wife are planning to transfer the kids in public school. Can I win the custodianship?

    Reply
  11. bheagonzales

    hi, i need advice. i have a 6 year old daughter and she is turning 7 on april. she is now living with my ex boyfriend, her dad. I want to get her because we have dispute of my ex about the child. i cant see my daughter now and its hard for me to see my daughter because her dad making excuses every time i ask him to get my daughter.I’m just a college student and dont have job yet. my daughter is studying, i cant support her financially for now. my fiance has filed for fiance visa in USA. I want to get my child. what do you think i can do? how much is the lawyer? i am very eager to get my daughter, pls email me. thank u so much

    Reply
  12. bheagonzales

    hi, i need advice. i have a 6 year old daughter and she is turning 7 on april. she is now living with my ex boyfriend, her dad. I want to get her because we have dispute of my ex about the child. i cant see my daughter now and its hard for me to see my daughter because her dad making excuses every time i ask him to get my daughter.I’m just a college student and dont have job yet. my daughter is studying, i cant support her financially for now. my fiance has filed for fiance visa in USA. I want to get my child. what do you think i can do? how much is the lawyer? i am very eager to get my daughter, pls email me. thank u so much bheagonzales10@yahoo.com

    Reply
  13. dadao

    Hi Atty,

    I have a son who just turned a year old last month. The boy has been with me since he was 7months because his mom has no time to take care of him and was still much into night outs with her friends and often leaves the the baby to her mom and dad who both has hypertension. She has been jobless for 3 months and just relies on me for child support in which I know is my duty and responsibility as the father of the child. My question is, is there any chance I can get full custody of the boy knowing that his mom is incapable of providing him proper love and care both financially and emotionally. I am really in need of your help. I really love my son and it hurts me to leave him on their side. Thank you.

    Reply
  14. eimee

    Hi,

    Can any help me?
    Im confused right now.
    Im 3 years married now but we decided to end our relationship (but not legally). I fell in love with someone and im sure he’s in the same page too.
    Im afraid that just in case, he’ll use that reason for getting my child’s custody.
    Question is:
    Is it possible for him to get my child’s custody if he discovered or by any chance appeal in the court?
    What can i do with it?

    Reply

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