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.

138 thoughts on “Basic issues in child custody

  1. Josh

    hi Atty

    I have a child born out of wedlock, after my daughter was 3 months old i left the Philippines to join the U.S army. ever since i have left philippines i have been sending my gf and child at least $800 a month to support them. while being in the army for 2 years, because of being away physically our relationship has been terrible. I have tried everything and visited them as much as i can. I was reading the articles above and it states that Article 213 of the family code gives the mother custody unless the court finds compelling reasons…

    the mother has never worked, not even once for the whole time my child was born. is this sufficient to grant me custody due to me supporting the both of them all this time?

    i also saw the immorality, what exactly is grounds for immorality?

    my child also has sever asthma to the point where my child is unable to talk lasting for a day to a week. although my child is sick during the nighttime hours the mother leaves home to drink with her friends. can this be an issue as well?

    Thank you for your time

    Reply
  2. quincy

    Sir, can i ask for a psychological test for the mother of my nephew before giving her the baby? She wants the custody of the child but we are hesitant because she has harmed my nephew once, but a grave one, he was hit at the head while he is still one month old by a door. She also harmed my cousin, the babys father, wuth a knife. Now she want her baby back, but insisting a child support from nanny to th. the babys food and clothes and diapers. Plus she threatens my aunt who has a weak heart. What can we do to win the child custody? The father and the baby hadnt done a medico legal when she had hurt them.

    Reply
  3. lawstudent88

    I’m a foreign law student and have been asked for some advice. I am not able to answer. Perhaps you can help me out.
    A father (Jordanian) of an illegitimate Philippine child is seeking to obtain custody of said child. The father does not currently live in the Philippines and would also not after obtaining custody. Is there any possibility of him obtaining custody of the child. (I believe that the mother is unfit to take care of the child and has two other illegitimate children from previous relationships.) What are the chances of this man gaining custody of his child. And what is the procedure that he would have to follow? Please any help is highly appreciated.

    Reply
  4. Lucienne Mariz

    Hello Atty,

    Good day!

    My brother has a 3 year-old daughter out of marriage but the child bears his name in her birth certificate. In the past my brother lived with the mother of the child and her family and she allowed my brother to bring the child in our parents’ house every other week without her. But recently they decided to separate and my brother is staying in our parents’ house now but my brother is giving support to the child still. The problem now is after separation, the mother of the woman does not allow my brother anymore to bring the child and stay in our house even just for two days. My brother is just asking to be with the child every other two weeks and for two days only. But that LOLA only, is making it difficult for my brother to be with his daughter because she does not want to be away with her apo even just for a day. Please advise us. What can my brother do? The mother of the child does not let my brother borrow the child for a while because her mother tells her to do so. By the way, the mother of the child does not have work and is only supported by her parents. Please help. I pity my brother so much now and the child because she feels very happy when she is in our parents’ house because she can play and stroll around well unlike in the mother of the child’s house where she gets to stay only inside the house the whole day . Thank you so much and more power!

    Reply
  5. pips_fernandez

    Can the Mother who is not married to the Father take their daughter who is under 7 years old outside the Philippines and live in a different country without the signature of the Father. If it will go to court, can a Judge have the authority to make a decision to allow the child to go to a different country with the Mother without the Father’s written consent?

    Reply
  6. dimple

    hi .. i need some advice. i have 2 sons they are 2 and 4 yrs old. im a single mom. my 4 yrs old son is with me but my 2 yrs old son is with my father , their grandfather. im leaving for abroad .. i want to secure my rights for my 2 yrs old son. my father and his new wife is planning to late register my son to his wife name. is that possible!? what i need to do!?

    Reply
  7. Jane

    Hi, I am just wondering how are the proceedings of have the full child custody? I have 2 children, 10 & 11. Currently we are in Norway. I am not married with the father of my children and we have separated our ways long time ago. I have been beaten emotionally and physically by that man and he doesn’t support my children either. My children are using his last name. Is there any way that i can have a full custody of my children?

    Reply
  8. roannegp

    Hi Atty. My husband has a son before we got married he was 2 yrs old then and was still able to see his mother. He is 9 yrs old noee, and he has not seen his mother for 7yrs. We would like to apply for a passport for him but his mother was a no-show in the two instances that she agreed on personally coming as she is required by DFA given his son is a minor. How do we go about this? Appreciate it in advance.

    Reply
  9. aubrey

    hi atty,

    i need your advice if you can help me. i am a mother of 4 child, two of them are below 7 years old. currently am not employed since i have decided to stay at home since last year 2013 in order for me to take care of my children, but have been working for the past 2 decades. we are currently staying in our conjugal house, and my husband is working abroad. there are a lot of occasions that i caught my husband with her girlfriend and he admit it totally and not denying it. but even though the situation is like this, we are still together. just recently, i really get tired of him and i told him that i wanted to get out of marriage. but even though i wanted to get out from our marriage, i still cannot leave my kids and we are still living in our conjugal house, but has no intentions to be with him anymore. he doesn’t want to file annulment either. now he told me that we wanted to file a custody case since it is me that wanted to get out from our relationship, and he is provoking me to leave our conjugal house. just recently, i fell inlove with someone, but i cannot decide to go with him since i cannot leave my children behind, and i know that my legal husband will not let me take all of our children. but between me and my boyfriend, nothing has happened yet because i am also hesitant to leave our house. is there a ground for him to file a custody case against me, and take away my rights from my children. and if i have a boyfriend now, but i dont want to go with him, can he make use of this as a ground for immorality.

    thank you atty and i hope that you can give me a answer to this.

    Reply
  10. acorpuz

    Hi,

    I have a 2 month old baby, born June 1st. I had been in a relationship with the father for almost 4 years but had been verbally abused the whole time. i had the idea that i will not give his surname to my baby but was threatened that if i do so he will not pay for the hospital expenses. after a month that my baby was born, he decided to leave us, i was wondering if there is any way that i could remove his name from my child’s birth certificate?

    Reply
  11. ariana

    helo aty.need help ung anak ko po 6 yrs old na xa ngayon nghiwalay po kmi ng dady nya pero galing po naisip ko sake nya pra sa future nya pumayag ako na iwan mo na xa sa custody ng dasy nya.pero ang ate ng dady nya ngsuport ng anak ko nun pero bumibigay po aq kunti pra sa bata hindi ko po pina pabayaan obligasyon ko until now..gusto ko po sana kunin anak ko pra mabantayan ko po talaga maipakuta ko po love ko sa knya dun ko po ipastay xa sa mom ko at ako ay mg abroad mkukuha ko po ba ang anak ko?kasi ung lola nya mama ng dady niya ayaw ibigay pero alam nla kung nsa akin ok ang bata ung anak nla prang walang pkialam independent p sa kanila…help po atty..salamat..

    Reply
  12. jessy

    hi i have concerns about my son and daugther..after 8 years na sa iisang bobong kami ng partner ko i decided to separate from him and hindi kami kasal gusto ko lang sa akin ang mga bata..ngayon po hindi po niya kaya financially gastusan lahat ng needs ng mga bata so heto ako sa abroad at nasa mama ko ang mga bata. pero ayaw ko na mkipag sama sa kanya..ano po ba mabuti neto?? please help po ano po ba dapat kong gawin dadaan ba kami ng attorney for legal custody kasi sure ako kukunin niya ang boy ko..hindi nman kami kasal..ang boy ko 7yrs old this year at 4 yrs old ang girl ko

    Reply
  13. JOHN SMITH

    If you would like to post a comment of your personal experience in the matter, then please feel free to do so… If you want all your legal problems resolved in a “blog” then good luck to you in your custody battle or issues because you obviously cannot afford a lawyer.

    You are all blasting your personal lives on the internet expecting that a lawyer who gets paid hundreds of pesos an hour to advise others will feel sorry for you and reply back.

    Thank you atty for your feedback here. People pay money for advice on the very things you have provided here. Sadly, for the culture here, no one respects the fact that you are doing them a favor by educating them on these facts and the fact that you still have a job which is to advise.

    Even as a foreigner in a custody battle of my own, I understand that these individuals have no respect for education, usually because of the lack thereof. I don’t have to worry about the understanding of this statement as you will understand and they will not. Simple fact is that you are doing the public a service and you owe nothing to those requesting free help.

    This is not an ego boost but just as lawyers need to be humble at times, freeloaders also need to respect education and the money it cost to become an expect in your field.

    Take care sir and thank you for your article/blog. It was highly informative.

    Reply
  14. ELLEN

    I am working in Dubai for the past 5 yrs, my 21yrs old daughter is also here for more than a year. I left my son in the custody of my husband since then. Now my 11yrs old son wants to live with us & leave his father for some reasons. According to him, his father is having an affair with other girl to the extent of bringing her home & sleep in the same bed with my husband in the presence of my son. Can I get the custody of my son without the need for court hearings? Please help me.

    Thanks,

    Reply
  15. riza

    I have 2 child but both of them use my surname.kun sakali po b my mgiging karapatan ang mga bta s mga pag aari ng kanilang ama?I have a affidavit of acknowledged from the father of my child, na pingawa nya s cityhall (PAo) thanks …

    Reply

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