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.
You may also want to read these related posts:
What's in a name? Change of name without going to court by Atty. Fred on September 22nd, 2006
Travel Clearance Required for Travel of Minors Abroad by Atty. Fred on September 26th, 2007
Presumptive death of a spouse for subsequent marriage by Atty. Fred on November 18th, 2006
“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”?
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 read this related case or pursue to dissect this matter, with the help of other students of law, at the Bar Exams Forum.
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?
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?
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.