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.

351 thoughts on “Basic issues in child custody

  1. Charie

    I adopted a baby (Note: adoption paper still on going). The baby was abandoned in the hospital w/c was t-over to DSWD, then DSWD gave it to me. my problem now is, after 9 mos of custody, DSWD informed me that the mother appreared and that she want to get the baby. But since the mother is not capable(Unemployed), her relatives want to get the baby for her. Is ders a law protecting the rights of the adoptive parents? What are the other remedies?

    Thany you.

  2. michaela

    My husband recently told me that 2 years ago he had an affair with a woman in the Philippines when he was visiting his dying mother. The woman had a baby, but my husband is not the biological father but my husband is named as the father on the baby’s birth certificate. The mother has abandoned the baby with my sister-in-law in Manila and we don’t know where she is and she said that the biological father disappeared when she was two months pregnant. What is the legal relationship between my husband and the baby under Filipino law?

  3. teena

    My boyfriend (the father of the child) and I broke up two months ago. For the whole time I was pregnant until I gave birth I was leaving with my x’s parent’s house. My family never helped me or gave any financial assistance. When I gave birth with my child all expenses were paid with his parents. I had c-section then and my child was premature. The bills reached 120k but I gave 20k. I was unemployed then since I stop working because of my condition. Now that we are already separated with the father of the child. They don’t want to give my son to me especially the mother of my x, since they paid a lot for the hospital bills. My question is can I get my son. With so many reasons. We are not married, the father of my son is still studying and I am working but on the birth certificate my son is bringing the last name of his father? Can I get my son? Cause they won’t give my child to me.

  4. sqeekywipers

    I’m studying law….San Carlos. Very simple advice.

    1. Do you have financial capability….to have your own safe place….food..shelter…water…medical…clothing….neccessities for you and hte child together ALONE?

    if no….you rely on others….YOU DON”T GET IT..sorry.

    2. Do you have any criminal background or recent history of it?

    Another lost case……

    3. Anyone has solid evidence you neglected the child before or said insults to it or tried to disenroll from the responsibility?

    If so ….and its true…..even a small thing….you lose

    4. Age takes precidence in these situations

    5. Education as well.

    6. Psychological Stability

    7. Benefits the child can inherit… funds….insurance….land…etc…

    8. Responsibility in your personal life.

    9. If you lived at MOMMY and Daddys….you better have a good reason you can support it alone with no help.

    10. Knowledge of how to take care of a child….not emotionally….medically.


    you have any of these attributes…..bad….and don’t turn your head and ignore it….your ignoring your own bullshit…and losing the case to win your child and be more responsible to raise it.

    Read this and think it over.

    I have all 1’s at San Carlos.

    so suck it.


    sorry for the bad spelling…im really tired and hungry from studying

    1. quenelyn

      sir i want a piece of advice u given to me im a ofw not married and have one child now the father of my child borrow my child to my mother bit he didnt get back again my child to my mother even a call or mesaages my mother didnt have info why father did not get back my daughter now i chat the father of my child to please him to get back my child in our house and then he when houre not here the child will stay at my cuatody coz u are far fr here ur working abroad thats why ill hide the child to your family because he is the father he tell me. Accusing me abandonment even he know why am here coz its for my childs future. I dont know what am i going to do coz am so far away…please help me email me

    2. Cat

      …and you have such bad grammar too. What a shame for law students. I wonder if you’ve already become a lawyer; if so, good for you and bad for the rest of us.

  5. sqeekywipers

    also JLP LAW won’t email you or that…your all guinea pig study subjects for them… they can see trends and build better cases for their clients.

    don’t waste your time here.

  6. stressedandconfused

    I have an issue involving a 3 year old girl. I am engaged to her father who shares 50/50 custody of the little girl. He gets her every other week. The mother has been in and out of her life since she left the little girl at age 3 months. Since then it has been the mothers dad who takes the little girl on the weeks that the mother is supposed to have her. The mother is a stripper at a club out of state and she only sees her child when it is suitable for her schedule. Which means she only sees her 2-3 times a month. The mother is also constantly living with different people average she usually is with a new family or roommate 1 a month. This is very frustrating to me because I care for this child with her father and I am seeing many psychological issue in the child developing because mommy is not around. These have since gotten worse since I had a baby myself. What options are available for the father to get custody since she is so young. Everyone agrees that it is best for the child if her mother we to be consistently involved. But since the mother chooses not to be we are stuck with where to go next. The mother will not give up custody for pride issue as it has helped her get into some families home to stay by saying she has a daughter.

  7. glecynie


    good day!

    i just want to raise my concern regarding child custody/parental authority. it so happened that i and my husband had a 5-month old daughter (at the time of this writing) and this time we agreed to separate and being clarified in front of the Consul at the Philippine Embassy. this time, his mom (OFW) requested to see the baby every vacation and so as his father (OFW). i just want them to be fair with me because for the past 4months, my daughter’s father is only sending less than 10,000php for the baby’s support.they did not even thinking of the my parent’s effort in taking care of our daughter, because the baby is with my side (i am also an OFW).i also have a burden this time because i am sending my sisters to school and i also have my daughter who is born out of is so unfair for me, from teh fact that i gave my husband’s freedom (the separation,even if it hurt me, except from marrying with other woman,bec. we are not yet annulled til this time because of lack of funds), because they wanted the child to be with them during their vacation (she is their first granddaughter). it is so unfair bec. the father did not even have the zeal to give more than 10,000php a month considering that her daughter is still months old? do we have any grounds for these? i have a little knowledge about child custody, but it is so unfair for me. we talked before we get married he will take care of the baby’s expenses and support her,bec. he knows about my situation.and now he is not doing it? i am still burdening half of our daughter’s expenses and now they are asking us to let them take care of the baby during they vacation. that is so unfair,right?

    please do give advises about this matter. maybe i can have more advises from you in connection to this concern.

    thank you.



  8. rstranger

    My wife has filed a case on child abandonment 7 yrs ago. Can I proceend with the annullment case or should we settle the abandonment case first?

    I have consulted some lawyers and some of them says I can proceed with the annullment and some of them say that the abandonment should be cleared first.

  9. agylo_1523

    I just got separated, I have 2 kids (6 & 7 yo). I caught my husband having an affair. Mistress has sent me a letter and made the confession. Right now, I’ve decided not let my husband see my kids. I don’t have plans to make it permanent I just needed the time to move on knowing that I have the full attention of my kids ( i know its selfishness ). But I am also afraid that they will take them away from me.

    Am I violating anything here?

  10. mistahburn

    Hi, I need your help.. Me and my soon to be fiance would like to get married but she has a 3 year daughter, the problem is I am a US Army soldier and I would like to take her and her daughter with me back to he US, the problem is I dont know if the father of her daughter is gonna let her take the daughter with us back to the US? Is this gonna be a problem? if it is what do I need to do to solve this problem? Eventhough the father haven’t really been doing anything to help support the daugther, my fiance is actually the one supporting the daugther without the fathers help financialy.. please help me..


  11. andrewP

    atty please give me an advice with my problem we had a daughter but were not married but the child is using my name. i heard that she is married right now and plan to go abroad and leave our daughter with his husband and i heard with her cousin that they are planning to change the name of my daughter. what action can i do to get my daughter with me.

  12. mary

    Good Day atty.

    im researching at net when i found your site and catch my attention. im in really need of advices here. its all about the custody of my child who is just 3 yr old and turning 4 by august of this yr.

    Here how it goes:

    Im presently working as a customer service representative at a call center industry and i just got regularized last month.

    I have a kid, id stay at my inlaws since 07/2006 (before i gave birth) until 01/05/2010. i went home to my privince to give birth but i didnt go directly to my inlaws place because the father of my son and i were not together anymore or were not already in good relationship. however, when his family got the news that i was there to gave birth of their first “apo”, they came with me and said that their son (father of my kid) said that they should get me from the house and should stay in their place, and said that everything is ok and settled.

    Mw and my son stayed at the province until he’s 1 1/2 yr old then moved here in manila. My ex and i wasnt communicating at all for 2 yrs. he always ignored me, he always get updates to het mother regarding how the baby is. At that moment, he got her gf, but i ignored it hoping that we will be fine again for the sake of our child, but it didnt worked out.

    Now, i decided to left their palce, pursue my work here and manila and left my kid at my mothers place. My inlawas wanted to get my kid, theyre saying that i cant take care of my kid, since im here in manila and he was there in my motheres palce, they said that they all have the right to take care of my kid.

    They wanted to o file a petition for the custody of my kid.

    My ex husband/bf (if you call it husband/bf) is in Saudi. We have an agreement that since they also leave there in the province, my kid will stay with them for a week and also a week at my moms place. And by june, i will be enrolling my son at a day care center nearby the house and i let them know that when that time comes, they can only have/borrow my kid every weekend which they refused, they still wated to have the kid with them for a week.

    I’m im just fighting for my right, and wanted then=m to respect my decision, but they didnt want too. NOw they told me that we will just see each other on the court for the custody of the child. (my kid)

    I really need your help for this situation, my kid is under legal age, and i want him to be at my mothers place while im working here to support all his needs.

    pls email me at

    Im looking forward to have a response from your good office.

    Thank You!

  13. tambos

    pls help me.. i need your advise
    my husband left us last 2008 and went home to their hometown for a reason that he is asking me for a break in our marriage “meaning he wants to be free from decesions whom actually he is not doing it for 17 years in our marriage.Meaning he did not do the decesion making he is totally dependent to me and sometimes try to shoot me with his gun or try to commit suicide in short he has a suicidal instinct for almost of his family are insane and suffering from alpsymers disease and we have an adapted daughter which is 12 years old now.after he left he doesnt send us any support otherwise on the first year he left us,i supply him always for a load just to call us.he left us with a bundle of financial pressures whom our business was totally collapsed and i declared total loss and my daughter had stopped from her schooling in a certain international school whom i can not afford already to pay her tuition fees.I keep on asking his help but no response up to this moment.Last dec he called up in the middle of the night and told that he is going to get my child thru dswd whom he will put my child according to him since i am living now with my driver whom he is the one who helped me in my debts and support us during his absence…in short i am now pregnant….now he is threating to kill me which in fact for almost 2 years he left us i always asked him where he will comeback and he answered nothing and totally did not mind of any financial obligations to us.also he told me that he will issue a warrant to both of us with my partner now…what shall i do?can he get my daughter or what?on the otherhand can he sue us?how about my coming baby?hope you can give me advise..tanx ill wait

  14. am

    someone help me please.. i have a seven year old son and i want to change his surname into mine.because the surname he is using is his mother’s lastname.. i almost have the reqiurements for RA9255. only his mom’s valid ids. she said that she is willing to cooperate for the change of our son’s lastname.. but it seems nowadays that she is busy i dont know whats on her mind… once she gave her photocopy of her valid id’s i will submit the requirements as soon as possible.. but the problem is once ive submitted already those requirements, the last step would be the interview or the appearance of both of us. (mother and me the father). what if she didnt come for the interview? what would be next? please help me i feel so hopeless for changing the lastname of my son. the mother of my son is changing her mind so manytimes.. i dont know if she still want this to process.. my son is never been so close to her because of her fault not communicating with my son. she’s gone for so long like 5 years. i only want to change the lastname no morethan that. please help me i feel so hopeless.

  15. janszell

    Do we have any right or slightest chance to claim a custody to my brother’ sons custody even if they are under 7 years old?


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