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.

235 thoughts on “Basic issues in child custody

  1. hanna

    tanong k lng po pano po mpupunta sakin ang ank ko ay , gusto k n po mkpghiwalay sakaing asawa pero ayw nya naman po,pero lagi nia poako pihihiya sa mga kpitbahay namin lagi sya ngsasalita ng masasakit n salita s harap mismong mga ank ko, 7 at 5 po ang ank ko

  2. Jeff

    Attorney I would like to ask about the situation of my child now..his mother voluntarily gave to me the child right after the day he was born..cause financially the mother of my child doesn’t have any thing to support the child..and now she’s back and she like to take me the child by force..she asked for a help for police and dswd..I am the father and we are separated and never been married.. What would the best thing and best way I can do to this..please help me..5years until now the child is with Me..I’m all alone give the support but then now the decision of the dswd officer should be the mother have the rights because of his young age..but attorney she abandoned and left me the child.. Never been support or any visitation..

  3. Hassan

    Dear Sir/Madam,

    I have a serious case of parental abduction, my wife left with my two children. I have a daughter who is 3 years old and a son 1 year and 4 months. My wife is unfit to take care of my children, I fear for the safety of my children. At the moment they are here in manila hiding and living with his brother. Unfortunately I have no idea where his brother lives, the only thing I know is that they live next to luneta somewhere along the pier. I heard that they will be leaving to Cotobato city tomorrow.

    Fortunately she will not take them to another country, not just yet. I am in need of your help and support to have my children back. Their safety is my concern, they are still weak and too young.

  4. Jon

    I have a 6 year old son and 1 year old daughter who is with my wife’s sister in Davao. Since my wife and I has been living abroad since we got married in 2010. We have decided for me to go home Philippines first to get a job and stay in Cebu for good. I have already obtained a job in Cebu and I am suppose to get our children from Davao to Cebu. However, my wife who is still abroad change her mind that I cannnot get our children without her presence. My concern is that this coming June will open the new school year and I wanted to settle my son to enroll first-hand before the school-year starts. I dont want my son to suffer from Mid-school transferee syndrome that could affect his childhood social and emotional well being as he needs to adjust himself to a new environment ang people if he wi start the 1st half of school in Davao and another half in Cebu.

    Do I have the right to get my children from Davao to Cebu without the presence and consent of the mother?

    I really need you advice as soon as possible as I need to arrange it accordingly.

  5. Jayson

    Hi sir! I know this post is already old but i was wondering what I could do to keep my soon to be 5 years old daughter. By the way I’m the father. My wife and I are are falling out and last late she came home drunk from the house of her parents. Both her father and mother are habitual drunks and profane language are said regularly. I was the one who helped her with her studies so that she can graduate. I don’t want my daughter to grow up in such an environment. When she was still in her studies in her high school and from what I saw during her college days. They either frequent the barangay hall or the police outpost due to their fighting due to their drunkeness. At one point, her father got dragged to the police station because they nearly killed each other with bolos. Is there anything I can do to keep custody of my daughter. Thanks in advance!!! By the way, her mother said “nakita nya sa bahara na nagloloko daw ako.” They opened my messenger/Facebook account and found my conversation with my thesis/capstone advisee to whom I said paggraduatin muna kita. they behemently insisted that that was the other women. My student has a daughter almost same age as mine and is living with her live-in partner and they are living with the boy’s parents. From there things went south…

  6. Justine

    Atty. Fred I have a 3 months old son. My husband and I having consistent quarrels as to where the child goes to. After me giving birth my son is with his family for 3 months. When his parents went back to the province we had hin for 3 weeks. My husband wanted that every after 2weeks we have to bring my child to their place. I cannot leave with his family due to my consistent bad experience with my sister in law. I have been vocal about this with my husband however he continously put his family first instead of my concerns. I want us to separate now due to this circumstances that will evetually be harmful for my child. What should I do next?

  7. Leo girl

    Ask ko lang po I’m married with 1 kid 14 yrs old 6 years pa lang po cxa nung iniwan ko para magi bang bansa at habang nasa ibang bansa po ako malaman ko pong may babae ang x husband ko at ngayon po ay nagsasama na po sila at may anak na ay sa ngayon po gusto ko po sanang kunin yung anak ko sa mga magulang niya kasi gsto ko po cxa ilipat sa mga magulang ko para dun magaral pero ayaw po nila kasi sabi po nila wala naman daw po ako dun ano po ba kaylangan kong gawin salamat po

  8. Cha

    Hi, my child is in the care of the father and i am working in singapore. I asked my parents to fetch my son over their place but they didnt give my son to my parents (he is not registered in my sons bc) the police and dswd on their place were also involved and they told my parents that they cannot assist my parents with this matter and that only i can go and take the child back. I am working outside the country, is there any alternative without me having to go back home? I hope you can advise me on this. Thank you!

  9. Rose

    Can the DSWD make a decision regarding the child’s custody?the child is living with his father and the boy is already 10 yrs old

    1. Anonymous T rex

      No, the court has its own social worker and not from dswd, all is by the judges decision, my suggestion is just bribe the court, since the child is 10 already. Go to the office next to the court, and ask for a officer staff of the judge, talk to him or her and make ur offer. Dswd is just govt project of corruption means. Try going there anonymously and inquire yourself, see how stupid they operate, all of them.

  10. Luke

    Hi. I’m 23 I will be having a baby with a woman from Subu. We are not together and never will be. I don’t live in Asia any more. I want to ease the child in Ireland my country. Do o have any rights in this case?

  11. Nikz_0913

    Dear Ma’am/Sir,

    Good day!

    I would like to ask if what case can be file to a person who registered the name of a baby in his/her name? Who has not pass thru legal adoption, the baby was newborn gave by somebody and paid 7,000 pesos only. The baby was late registered and the baby was baptized already, can you help me with my inquiries? Thank you!

    1. Anonymous T rex

      Lol he/she will just rebat your file of motion, and will succeed and can even sue you for money, i suggest file a motion of visitorial rights, after achieving visitorial rights of 2 days atleast, get a medical report saying the child is not in goodshape, file a motion and do not return the child, and do not the bring the child on court, after this the case will just go on and go on, you dont even have to attend, and civil case and contempt will not imprison you. So do not be scared. Then move to another town change name and everything, start over.

  12. Anonymous T rex

    Misleading info, its always going to be under the mothers custody, that 7 years old law is crap, I filed a case of sole custody, and the case took 4 years and still nothing, our judicial system is corrupt and slow, all the money i spent went to nothing, i suggest do it the illegal way, kidnap and change your kid’s name. See our country is corrupt and lawless by technicality, why follow it? I followed this website’s advise, don’t be a a victim like me…

  13. Ren


    Hndi n po kmi mgksundo ng aswa ko. Ilang beses n pg mag aaway kmi pinapanakot nya skin n hihiwalayan n nya ako. Na kkunin dw nya ang 3 yr old nming ank. S knya dw mppunta ang custody ng bata kasi wla nmn dw akong trabaho. Pero sya nmn po ang may ayaw n mgtrbho ako dhil sino nmn dw po mg aasikso s bta eh ngbabarko sya. At gusto dw nya asiksuhin ko sya pg andto sya s lupa. Nkapangliliit po at nkakawalang pg asa. Prng wla akong laban. Kht mgulang ko kumakampi s knya kasi ayw nila n mghiwlay kmi. Pti s mgulang ko wla akong mkuhang support.


    Ask lang po my brother had a son 8 months na sya di sila kasal ng nanay ng bata pero surname ng brother ko gamit n bata. May work n po yung babae at yung bata iiwan sa tyahin gusto oo makita at maalagaan ng kapatid ko bata pero ayaw nila may karalatan po ba kapatid ko sa bata para maalagaan nya? Salamat po


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