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.
Sana po makatolong kau sa akin Hindi po kami po ung naloko ng aka ng anak Hindi po kami kasal may anak po kami dalawa 2&4 po kaso lang maykasal xia naasawa nong 2010 pa po sila ng hiwalay tapos po 2010 po kami ng kits ng December 5year po kami ng sama at bigla q po nalaman may bago na naman xia Hindi na po xia umuuwi sa bahay naming at walang sustinto anak nmin.
hi! i would just like to ask question about my son who just turned 9yrs old.. me and my partner was together for almost 7 years, we were never married, we lived in his parents house for 4 yrs. on may 13, 2013, i went here in canada for work and later i found out that he was cheating on me, it didn’t go well for the both of us, i asked him to give my son to my family and they will take care of him but he didn’t like it. so after 2 yrs i decided to go back to the philippines and get my son from them. so he did gave him to me. i tried making arrangements with them. since he said that he still want to see our son, take him with him if they both have free time, so i said ok. but in exchange he will still support him financially. he said that he doesn’t want to because my son will be on my family and not with him, he said that he’s not sure whether the money that he will be giving would really be spent on my son. so i told him, if that’s the case, then why don’t you just answer his school fees, that way you will be sure that it would be really spent on our son. but he still doesn’t like it. (he’s earning like 18,000-20,000 pesos monthly btw and lives with his parent so he doesn’t have much expenses to think of) so i said, if that’s the case then ok, i will not allow you to see him as well. then it’s all good. i went back here in canada and continue working(i’m applying btw for permanent residency and i included my son with me). i allow his parents to still see our son, coz i respect them, if they will borrow my son for a day i always let them, on the condition that they will not take him home for their son to see my child. but just recently, last december 21, 2015 i think, they asked me to give them the whole day for them to be with my child, and so i said ok, but only for the whole day, and take him back to my aunt’s house after just like before. but they didnt took him home, instead they said that they will return him after christmas, at first i didn’t allow it, but just to avoid trouble, i finally did allow them, then they borrowed him again for new year, and i allow them again. but just recently i found out that they gave my son a cellphone, so that his father can text and call him everyday without me knowing. so i message them and told them that they shouldn’t have done that. and now they are threatening me that they will go to DSWD to file a complaint against me, coz of my demands whenever they take my child out (which is to not take him home for his dad to see, which is i already allowed since i am allowing them now to take him to their house, and their son lived with them, and by the way, up until this moment they are still decided that my son’s father would not give any financial support to my son if im not gonna allow him to live with them again.) and he is still with the girl he cheated me with. my question is, can they really sue me for anything? if yes, for what?? and they are also threatening me that i’ll have to go back to the philippines if they do that, so it would cost me more since i have to leave my job for a vacation leave(which will not be paid, coz i already spent my vacation leave when i first go back to the philippines last april 2015 to get my son from them) and i’ll have to buy plane tickets of course. if that happens, can countersue them aswel?? and file for damage if ever?? will i be able to get my money back if ever, the plane ticket cost, my supposedly salary for the that time. can they have a custody over my son? i know that my letter is kinda long, but please, i am really in need of any help right now. thank you so much.
Magandang Araw Po,
Im Raymond 30 yrs old x-ofw and now working in a remitance company here in manila.My story goes like this,isa po akong ofw sa riyadh ksa from 2011-2013 at dun ko po nkilala ang asawa ko na nurse,eventually we dated and our relationship resulted in a pregnancy,bawal po sa saudi ang magsama ng hinde kasal ko without hesitation i ask my family to bring all the legal papers pra po maikasal kmi sa RIYADH,we got legally married in riyadh by the ambassador of the philippines to riyadh saudi arabia.,so alam ko po n legal na legal ang ksal nmin we got all the supporting documents of our wedding.,the relationship is good until this early 2015 umuwi po sila sa province galing sa bahay po nmin sa cavite with the promise of getting back here in manila b4 bumalik po ulit ang asawa ko sa abroad but it all suddenly change.,BIGLA NLNG PO KMING PINAGHIHIWALAY NG MGA BYENAN KO ( PARENTS OF MY WIFE ) SA KADAHILANANG HNDE DAW PO KMI MAGKARELIHIYON AT HNDE DAW KMI KHIT KELAN MAGKAKASUNDO.,hnde po kmi naghiwalay ng asawa ko kung hinde pinilit kmi paghiwalayin ng knyang mga magulang with there nonsense reason.,nabigla po ako dahil almost 2 months ko lng nkasama ang anak ko ay agad n nman nilang inilayo sakin eto,ang anak ko po ay 2 yrs old npo,mula ng pinanganak cya ilang buwan lng ay dinala n e2 sa probinsya,ANG SAKIT PO SAKIN BILANG ISANG AMA NA HINDE KO PO MAKAUSAP ANG ASAWA KO AT ANAK DAHIL PINAGBABAWALAN NG MAGULANG NG ASAWA KO
AYAW NILA AKONG SAGUTIN SA TELEPONO PRA MKAUSAP KO ANG ANAK KO KUNG NSASAGOT MAN NILA AY AGAD IBINABABA TINANGALAN NILA AKO NG KARAPATAN SA BATA AT SA PAMILYA KO.Ako po ay tga cavite at sila ay tiga mindanao,magtatatlong taon npo ang anak ko pero halos 2 buwan ko lng cya nkasama ayaw nila mpunta sakin ang bata cguro da kadahilanang hinde sa knila mppunta ang padala ng asawa ko galing sa abroad.,HINDE PO AKO NAGHAHANGAD NG PERA O ANU MAN SA KNILA ANG GUS2 KO NLG PO AY ANG KARAPATANG KO BILANG AMA NG BATA AT MAKASAMA ANG ANAK KO.,SANA PO AY MAAWA KYO SAKIN AT MA2LUNGAN NYO PO AKO SA PROBLEMA KONG ITO.
SALAMAT PO,God bless…and sana po ay m2lungan nyo ako.
Hi atty.,
Can a father contest a Solo Parent ID, specially if the wife is taking away access to the father? The father wishes to send support but the wife is not communicating back, the child is with the mother.
Thanks.
What if an unwed couple has a child, now the mother leave to go to abroad and the child is in father’s care. After one year in abroad, the mother of the child marry another guy. The child is now 5year’s old, my question is, will the mother can still have the child custody even if he marry another guy or the child’s father can have the full custody since he didn’t get married? He’s the one who take care of the baby. I need your advise.
I have a son who is 6yrs old.. im merried about 6yrs as well.. I am OFW when I found out that my husband has another woman… we agreed that I will resign and go back home to fix our family but when I arrived he decided to leave me and be with his mistress now I don’t have a job to provibe for my son’s need and he dont give our son a support ever… now pls. give me advise what shall I do and I want to take full custody of my son… tnx..
Is it possible for an ofw father to win the child’s custody? He has a daughter before he get married. The child was with him and his wife for 5 years and nOw The mother of the child get the child because she wants the child to be with her. The said mother already have another 2 kids in different father. The age of his chid is now 10 years od
edencute57
Hello Atty.
I am the grandmother of a 2 years and 7 month old baby boy. He is the son of my daughter who is unmarried. She became pregnant while in 4th year college. After graduation… I helped her find work and she was able to get one. She and her boyfriend had some misunderstanding. She and her boyfriend did not live together and did not marry. The father lives with his parents while my daughter stays with me.
Last May 2015, she left home after i have scolded her , we had some disagreement about how she treats his son and about her behavior. She abandoned her son and I was the one who took care of my apo. She just visited her son at least twice…one was December 23, before Christmas. The father supports my grandson in terms of diaper and milk. 2 boxes of Nido and 2 plastics of diaper every 15th of the month. Other needs of my grandson is given by me. We hired a nanny since I am also working as a teacher in a public high school. I am the one paying the nanny.
When my grandson is sick I am the one who brings him to his pediatrician… he has a health card from the father… but the medicines I am the one who pays for it. The father visits him when he brings the milk and diaper. Sometimes he gets his son and they go to the mall.
I would like to ask for your help… I am having a problem . I have texted my daughter and rteminded her of her obligation as a mother to my grandson. But unfortunately she has many reasons not to come and she seldom reply to my texts and never reply to my calls.
When i told her she has to be a mother to his son … she always tell me that I am the one who wanted to take care of my grandson. She says the father wanted to get his son and bring him to Rizal to be taken cared of his parents. I live in Cabuyao, Laguna.. and Im afraid Ill never see my grandson again once I gave him up to the father.
What rights do I have as the grandmother? Can I file for custody?
Please help me… my daughter is not interested on her son. I think she has a new boyfriend and the father also has a new girlfriend.
I would appreciate much if you can tell me what to do….
Thank you very much,
Loving grandmama
Please do not post my REAL NAME…
Hello Atty,
I have a niece, she has a 7 months old baby. My niece and the father of the child was not married and they just separated because they need space. But my question is do the father have the custody right since my niece have another love affair. We’re so sorry about the child because the mother is irresponsible , she’s like a teenager wanted to get drunk and a smoker.
Thank you and I am looking forward for yur response
Best Regards,
Maria
Atty, Good day to you, gusto ko po sanang mgtanong, ito po ay tungkol sa kaibigan ko lalaki, pwede po ba siyang magkaroon ng krapatan sa kanyang anak na nasa kasalukoyang nsa asawa niya ngayon. Ang kaibigan ko po ay maykinakasama na at may anak narin sila, ang asawa niya ay may kinakasama narin at may anak na rin sa iba. Gusto po sana niya hiramin ang kanilang anak sa kanyang asawa kaso ayaw ng asawa niya, khit anong paki usap niya hindi siya pinapahiram, infact sumosuporta nmn sya sa mga needs ng kanilang anak.. Ang tanong ko po, ano po ba ang pwede niyang gawin na legal na pamamaraan upang magkaroon sya ng karapatang makasama din ang kanyang anak.
Hi, the mother of my two kids is married before we had kids (Already have had history of adultery). After we got separated she had another child with another man and left her. She had history of drugs years ago (I don’t have any proof on that and I’m not sure if she’s still using and I just caught her once). But according to the people I know she’s selling her body for money (Not proof, just witnesses). She work far from their house and only goes home once a week. What are the chances of getting the custody of my kids just basing on the mother’s history that she is not fit raising my two kids?
Hi atty.,
I need a legal advice for the custody of my 2 children. I am currently here in Abu Dhabi working as a nurse, my husband is also a nurse in the Philippines my 2 children is with him in his mother’s house. I support everything for my children, education, milk, diaper and even pay for the nanny. My husband has vices, he usually used the money for my kids for his vices. I want to get my children and sent them to my mother because I am here working abroad. Is there a chance that i will be given the full custody of my children despite my absence ( I am working here to provide for their needs which their father supposed to be the to support everything for them ). I will be in the Philippines for my annual leave I want to know if theres a chance that my kids will be in my mother’s custody while i am still working abrod?
Atty i need legal advice pls help me. You have my email pls respond as soon as possible. I’ll tell you everything once you send me an email that you are willing to help me.
gud day.. meron po akong ank na 1 yir and 7 month. d po kmi kasal ng ama nia. ang hiwalay na po kmi for almost 7 month dhil po sa ibng babae. ang problema ko po ang bnbgay nia na sustento ay 1k lng kada sahod. samantalang minimum xa at binata nmn. ngaun tinatakot nia ako na kukunin ung anak ko dhil nkaapelyido nmn dw ung bta sa knya. ano po kya dpt kong gwin. help me nmn. thanx