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.

275 thoughts on “Basic issues in child custody

  1. Maria

    hi, i am a mother of two. my kids are with their father and was took away from me. i am planning to file for full custody. id like to ask to where and what are the steps. and i would also like to ask where can i get a lawyer preferably not those expensive lawyers. any contact numbers and offices. metro manila base.

    thank you!

  2. Lhoi

    Hi! I have a relative. he is the father of the child. they got separated with his live in partner. these past few months, he stopped giving financial support because he was too mad that he couldn’t even have his child or even can have time to bond with her. The mother of the child wont let him have time with the child outside of their house. there were times that he wanted to borrow the child to bring her to his sick father but he was too frustrated because the mother wont allow her. My relative just want to know if he has right to demand or request visitation even just once a week to have time with his child?

    Your answers are highly appreciated.

  3. Leah_414

    How about if the situation is that I am the father and the mother of my child is Married to someone else previously. How does that go?

  4. neryssa

    i get separated from my live in partner because im been cheated and bothered by him.i decided to leave him,i am n0w renting a r0om with my child.the set up is,im bringing my child to him during the day and taking my child again in the night,n0w the situati0n is this,he has a girlfriend that always at his house and i still c0ntinue the set up,can i file a sole cust0dy of my child who is only 4yrs old and we are n0t married.

  5. Maribel M.

    Hi. i and my ex lived together for over 10 years but never been married. We have 2 kids aged 8 and 5. He is not working since we lived together. We ended our relationship last january 2016. I am now with a foreigner partner and planning to migrate in his country but the dad is planning to take the kids from me. What are the things that i can do to prevent it and what are requirements ill be needing to bring my kids abroad. Thanks. Have a great day!

  6. Christian

    my father have a 13 year old daughter from another woman. He wants to have a full custody of her so he can bring her to US. What he should do.? The mother says its ok for him to take her daughter to US. We just want some legal advise for what is the best thing to do. thank you very much.

  7. sister_seek_help


    i need your help,
    my brother had a gf and they have a 2 year old daughter, and he did work hard and provide for the family, though the gf cheated on him thats why they got separated. they both had a written agreement that he have rights to see the child during weekends but the mother and her family never comply for 9 mos now, the baby is turning 2 years old on november and he havent seen her for 11 mos now, and he is devastated for many months and i cant stand to see him like that, i know that he have rights , though its not as strong as the mothers, so please is there anyway that we can have the kid with us, somehow the family of the girl lives in slum, and unsafe place ,so i was hoping if ever can we use it as to our advantage to see the child? pls advise ..thanks,

  8. Connie

    Hi atty,
    How long does a custody case normally last and how much would be the cost?I got my Newzealand resident last yr. and i included my 2 sons and they live with me in NZ.coz they got my maiden name. But my 2 girls ages 11&13 yrs old still in the phil and my friend is the one who look after them.i was married to their father and he is not capable of taking care of them. He is jobless ,involve with drugs & have relationships with diff women.He signed an affidavit thet he is giving me the full custody of my 2 daughters.I really want them here asap, and they are not safe anymore. And just want to make sure na hindi kami lolokohin at manghingi lang ng atty. fee.

  9. Mia

    I would like to file for sole custody of my 3children. My pulandering husband has a mistress of almost 2 yrs and he got her pregnant now. He is ready to stand as father to the child. I decided to leave him and separate from him. We are in Iloilo and he is in Manila. He has symptoms of Narcisictic personlity disordr and a self xonfesed multiple prsonlitu disorser.he declined seeing a doctor. He and his mistress are still together in the office and flaunting their relationship so his ofismates complained to HR to have both of them sanctioned. My husband is a sup and under him is this other woman who is an agent. I am planning to sue them as well VAWC psychological violence.I don’t know if Concubinage is appropriate since they are not living together yet but I hope the court can order a dna test if he keeps denying he is the father of the baby. How do i go abt the case?

  10. jhoy

    hi good morning i have a question i had a friend and she’s married to korean and they had a son now they got divorced all the authority and the custody of the child is on the father but the mother bring her son to the phlippines without the consent of the father. And also the passport of the chils is already expired what if the father wants to bring his son back here in korea what are the ways that he has to do and can he file kidnapping against the mother? by the way the child is already 6~7 years old. thank you hope you can help us God bless

  11. Jannet

    hi,gusto ko po malamn kung makukuha ko ba anak ko?
    hinde po ako kasal sa tatay ng anak ko
    nakapag asawa ako from USA,I left philliphines nung 4 years old anak ko,iniwan ko sya sa magulang ng tatay nya dahil nkikiusap sila na dun na muna anak ko habang di ko pa sya nakukuha,dahil mabait magulang ng tatay ng anak ko iniwan ko sa kanila,at doon nakatira yung tatay nya sa magulang nya,lagi ko nakakausap anak ko skype and phone call,and send money for her and for the lola,6 years old palang sya kinukuha ko na sya,pero dahil sa pakiusap ng lola na wag muna,pwede daw ba pag 9 or 11 na sya,,,now 9 years old na sya,,planning to bring her na dito sa USA,BUT her lola passed away last june 2016,its all set bago sya mamatay naguasap kmi na kukunin ko na anak ko dito.but now im having a problem,,,,YUNG TATAY NG ANAK KO AYAW IBIGAY SAKIN YUNG ANAK KO,HE SAID WERE GOING TO COURT,,,ayaw nya ng ibigay anak ko skin,,,gusto ko po malaman kung mananalo ba ako o makukuha ko ba anak ko?Thank you in advance

  12. mary honelou

    Go good day im seeking for your help my son is 13 mos old last january I entrust him to the parents of my bf which acknowledge him as a father I go because I need to work in manila as a call center agent but even I cannot visit my son because of the nature of my job I see to it that I have constant communication to him 5 mos that I have seeing him to messgr I make sure that during my a day of rest is Im seeing him in messengr but it lasted for 5 mos because they cut the internet connection and that time started that im started longing to see my son I was asking them if I can borrow my son and take him with me for a month because I dont have enough time to go to bicol and spent my time for him I have very limited time but they keep on saying that I cannot get my son, do I need to begged them in my child custody I tried to please them but they dprived me of my right to have my child custody please help me

  13. Danilo

    Mga Sir pwd po magtanong. Ano po ba ang karapatan ko bilang tatay. kasi po dadalin ng nanay nya yung anak ko papunta US. meron po ba akong mahahabol? Ayaw ko lang po mawala yung anak ko

  14. McLaren

    Good day sir,

    My ex live-in partner had an affair while we were together for two years. We had a son. Even though she had an affair, I still stayed hoping she would change for the better. But I was wrong. In the end, I left her and pursued for my nursing review. I tried getting my son back because of her mother’s ill attitude towards my little boy. And now, she won’t even let me have a time with my son. What legal steps should I take towards this situation?

    Hoping for your kind reply.

    McLaren Heuer.

  15. Kenneth

    I am an American and i am married to a filipina and i have a child. I went back to America almost 7 years ago and got a good job and was going to bring my wife and child to America but i got hurt could not work. I have been fighting for SSDI for 6 years, and i finally won, but my wife has another man now even though we are still married. I am going to go back and live in the Philippines and be with my daughter. My wife has taken a job overseas and left my daughter with her aunt. She said i can’t make my daughter an American citizen so she can have rights to my SSDI if i die before she is 18. She also said i cant be alone with my daughter and she cant live with me while she is working in Taiwan. Can I take her to court for rights to my daughter even though i am not a Philippine citizen? Do I have any rights to my Filipino daughter?


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