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.

284 thoughts on “Basic issues in child custody

  1. Jamaica

    Hi attorney need some advice i have one child who is now 10years old and his father didnt give a support were not married now hes is jail now can i take any support from him?

  2. Mary ann

    Good day attorney.
    I want to ask you regarding child custody… i am married for 13 years but i want to get out from this marriage because i can no longer live with my husband… who is unfortunately still relying on his parents support for almost 13 years now…the feeling is gone and i can no longer see any reason to live with him… he is very lazy,and all.he has used drugs,that probably caused his depression.and he is fond of playing e-games eventhough he has no income,he gets it from the money of his parents….and now that i am fed up with all these, i want to leave him,maybe file a legal separation against him…but i want to leave him first…now, my problem is they want 2 out of my my 3 kids…his mother wants it for him to avoid stress and depression again…now, i dont want them to have even one of my children…what to do? What are my rights as a mother…i am unemployed,and i am planning to get a job before i leave him,otherwise my parents and my siblings will be the kne to support me and my children financially…if i dont get a job immediately.
    Thank you

  3. Franz Anthony

    hi atty. i have a son but we are not married. when the child was born, the registrar did allow the mother to use surname and put my name in the birth certificate. i compiled the requirements here in australia made an affidavit acknowlegde as a father and the use of surname. i had made the affidavit in the philippine consulate and it has been red ribbon. since birth the mother made an effort to process the papers. ive been supporting her and her family since she was pregnant. the was with her for 2 yrs and i been supporting the child including the family of the mother. last yr november the child was in our custody until now with the care of my parents. his with them without the support of the mother. she didnt even send a single centavo to financially support my son. and now she got pregnant and be married on january. shes planning to get the child from my parents and bring the child to US because his marrying a US citizen. im so worried because i dont have the legal rights of the child since his a illegitimate child. i would to know if i have a fight on the costudy of the child? my son is still below 7. i hope you can help me with my condition. im currently here in australia.


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