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.

253 thoughts on “Basic issues in child custody

  1. Maria

    Hello Everyone,

    My daugther is now 7 years old and she is leaving with his father and i want to travel with her but the father is not allowing me to so.

    please advice on what i can do regarding this matter.

    Thank you & best Regards

  2. Jun

    Dear Atty,
    Me and my wife are separated for more than 7 years now. We have 2 children (14 y/o (girl) & 10 y/o (boy). We both have families of our own now. She has 2 children of her own with her new partner. I have 2 kids with my new partner as well. We both agreed that our kids would stay in our place under my sister’s custody as she had no permanent job that time, taking into account also the new 2 children she has with her new partner. Therefore looking after our 2 children was impossible for her to do. And besides, she only asked either the children’s grandmother or her eldest sister to look after the children, instead of herself. And of course I don’t want my 14 y/o daughter to stay with my wife’s new partner apparently for security reasons. Now that she is working in Hongkong as domestic helper (just started working for less a year now) she suddenly changed her mind to send back the kids to her place. I want to keep custody of my children. I understand that the children can have their preference as to whom they want to live with given their ages now. Please help me establish certain legal rules so that she wont be able to simply take the children away as and when she wants to so as not to affect their studies. I am extremely worried for my children to stay under her custody especially that my daughter is already a teenager and is apparently should be given certain restrictions and security.

    Looking forward to your response.

    Thank you and God bless.


  3. Jun

    Dear Atty,

    In addition to my earlier email, my ex-wife is telling me that she is coming home next month and will take the children from my place. How can I stop her from doing so because I am here in Singapore right now and only my eldest sister is taking care of the children.

    Can you please help me.

    Thank you.


  4. malou

    good day po!
    11yrs.akong kasal s asawa ko.may apat kming anak.ngkawilay na kami almost po.iniwan ko mga anak ko sa kapatid nya dahil ng abroad din ako.seaman po asawa ko at ngayun ay isa na siyang captain license samantalang ako ay domestic helper in riyadh saudi arabia.s pgkakaalam ko po,ngsupport nman po asawa ko 2k monthly sa bawat isa s kanila…may ka live in na po asawa ko at may isang anak mula ngkahiwalay kami at samantalang ako may kalive in na rin ngunit wlang anak…nais ko pong maibigay ng asawa ko ang tamang financial support nia para s apat kong anak…ano po ba ang dpar kong gawin at ilang porsento ba dpat ang para s knila bilang legitimate child…
    maraming salamat po….
    malou dalit

  5. Jayson G.

    What can I do to permanently get the custody of my daughter? Her mother has 3 other children to 3 different fathers. She is in Saudi for work with new boyfriend. Her children are in the custody of her mother (the lola). While the 4th child (who’s my daughter) is in the custody of my mother because Im currently in Malaysia. I am the one who’s supporting our daughter.

  6. Janice

    Atty ,
    ako po si Janice Cayabyab Cedo..Nkipaghiwalay ako sa.aking sa asawa dahil sa kanyang pambabae..May dalawa po kaming anak at nasa kanyang mga magulang…Gusto ko po silang kunin ngunit sinabi sa akin ng biyenan kong lalake na hindi ko sila makukuha hanggat hindi kami magkakaayos ng kanilang anak..sanay matulungan nyo po ako sa aking problema.Ako nga po pala ay dating ofw at apat na taon sa middle east.

  7. angelica

    good morning.
    i am just only 18 years old the same as my boyfriend and we had a child at the age of boyfriend doesn’t have a work to support me and my child, we are living now in his family but the case is the father of my boyfriend said that if we got separated he has the right to my child. is that true? he said that because he is the one who is supporting my child just because he doesn’t want that his child or my boyfriend will have a work. the problem is the father of my child don’t have a right decision he is just depending on his mother and father’s decision. just like a mama’s boy. can you help me?

    hoping for your response.

    Thank you.

  8. villamor jr

    Hi! My brother was separated to his wife a month ago (wife refused to stay together). Now, my brother is asking for his 3yrs old son to stay with him for a week but his wife do not allow. In this case, is my bother has a right to apeal? Thanks

  9. aldwin

    Ako po ay may anak na edad anim at nag-aaral sa bilang grade 1 ang problema po ay nag-away kami ng asawa ko at hndi na nya pinatapos ang anak ko sa grade 1 at mag eexam na lang sana ngaung 4th grading pero ayaw nya pa rin pag-examin ang anak namin,ano po ang gagawin ko at sayang ang isang taon para sa anak ko,salamat po sa mabilisang advice.

  10. Dj

    My child is already 8 yrs old and my wife left us abroad for 6 yrs and we were never her first priority every month she send us 3k for 3 yrs and none for the first 3 yrs my question is can i have a full custody of my child?

  11. aileen Joy

    Hi JLP,

    I have question, right now i do not know what should be my next step.
    I just had my nullity of marriage done and i got MC null and void from NSO.
    I have 2 children, and my company is going to send me to the US for a job assignment for 2 years.
    Will i have any issue of bringing them with me or have their visa approve? Even my employer is not sure.
    Also, their father have been dismissing us for 8 years now and would never cooperate even on legal documents.
    What should be my next step?

    Thank you very much

  12. Percival

    Hello Atty,

    I have 3yrs old daughter with me
    It’s been 3yrs now that I don’t know where my wife is And she filed an annulment case and it was already nullified this year 2016.

    Just this year, me and my daughteris planning to migrate to Canada.
    My question is can I get full custody for my child from the court
    without consent of her mother?

  13. Jhonabelle

    Helo attorney,I have a problems ryt now my son is in my parents guidance coz I’m here husband had anader woman and d worst thing is he showed to our son his anader attorney I want to get tottaly d custody of my son bcoz my in-laws want to get my son wid dem.what shall I do den?I nid help and advice bcoz I’m planing to go home to file custody case for my son.wat is da best thing i shud do?please help me as soon as possible.thanks.cp#98549997

  14. Regina

    Hi, i need an advise. How do I file dor custody of my two minor nieces, they are 16 and 15 years old. Daughters of my brother. My brother is not married to the mother. But they are still together, problem is they both can’t take care of the children, they can’t even take care of themselves, the mother is a drug addict and she literally do not do anything. The children are not sent to school, last year they ask me to take the children to my home and I did, i sent them to school and they have graduated grade 6 last March. Then the mother suddenly outrages and force to take the children with the help of dswd we let her get the two kids, even if the two kids don’t want to go back with her. The child is asking me to take her back, she wants to . What can I do to make an appeal withbthe decision of the dswd staff? This case was not taken seriously as they do not make the necessary steps, I love my nieces , I want to help them.. Hope you can help me.. Thank you.

  15. mia

    Hi atty..
    I am just a concerned citizen onthe minors (3)situation.. 9-11 y/o. Can the social worker decide on whats best for the children though the children have chosen to go with their mother already or it must deal with court proceedings? There have been allegations that the mother wasnt able to provide care and support on the children when the children were still under her custody the reason why a year ago the children were brought by their father on his hometown and gave the responsibilty of taking care of the children to her sister while the father works in far city to support financially his children. Now, the reason why the mother wants to get back her children is because of the allegations of sexual abuse on one of her children which have been found already to be untrue yet despite that she still wants her children back afraid of the possibilities of abuses the children might experienced. Regarding this, the children were able to inform about the situation, have been explained on the situation and yet chooses to go with their mother. So the social worker agreed to turn the custody to the mother. What can you advice atty?


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